Obtaining status in the US based on family relationship

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In this article, we will cover the topic of family immigration, which is one of the essential areas in immigration law and directly impacts many people’s lives. This overview will help you understand the US immigration system for those interested in the family reunification process.

We invite you to read this article carefully. Don’t hesitate to contact us if you have any further questions about family immigration.

Family Immigration – Historical Overview

family visa usa

The policy that regulates the issue of legal immigration to the United States is spread over four main areas:

  • Family reunification.
  • Bringing immigrants with the necessary skills into the local labor market.
  • Meeting humanitarian goals.
  • Ensuring that the total number of immigrants come to the United States from various countries of origin.

This policy was reflected in the Immigration and Nationality Act (INA) of 1952 and amendments to the Immigration and Nationalization Act of 1965, which abolished national-origin quotas (previously favored by Northern and Western European countries). It is generally accepted how a particular society treats immigrants reflects the values ​​of that society. In this context, it should be noted that the family principle is a central value in the US immigration system (like in most developed countries). As a social phenomenon, the family has always played a critical role in immigration procedures.

Family immigration is a term used to classify the immigration of people who move to the United States for permanent residence due to new or old family ties. For example, if you have US citizen relatives, you can be reunited with them through family immigration. Since the early days of the United States, most immigration has been based on family ties. Still, the Immigration and Nationality Act of 1965, mentioned above, formally recognized family ties as the primary mode of immigration.

In 1965 immigration policy was changed. Now not only spouses and children of US citizens could receive the status, but also parents, older brothers, and sisters.  

As we have already mentioned, until 1965, visas were issued based on the national origin of applicants. Many at the time considered it logical to prioritize immigrants from Europe over immigrants from other countries.  

Even before the 1960s, there was an opinion that this policy should be abolished, and then-President Johnson even called for a transition to a right-wing immigration system.  

Michael Fagen and others felt such a change could open doors to unwanted immigrants. As a result of the opposition of Feigen and his ilk, the parties involved reached a kind of compromise among themselves. Thus, Fagen proposed a new policy that would prioritize people who already had relatives in the US. In his opinion, this was to keep the US population as it was at that time – mostly white people of European origin.

In practice, the new method did not quite achieve its goals. In the 1960s, seven out of eight immigrants came to the US from Europe. However, the situation was slowly changing. Fifty years later, the picture changed significantly, and nine out of ten immigrants were from non-European countries. Most of them arrived in the US to obtain legal status.

Today, about two-thirds of all legal immigrants are eligible for family reunification. Immigrants who receive a green card are approximately 1 million people a year, of which about 50 percent are the next of kin of US citizens, and another 20 percent are relatives from other categories.

This is quite natural because moving to a foreign country alone is very difficult. Anyone who comes to the US alone and starts his life anew faces a lot of difficulties: he may have problems with the language, with the mentality, with the way of life, etc., and he will undoubtedly have many questions that need answers. Therefore, it is much easier to join relatives who have already settled in the US or to immigrate with some family members.  

Of course, the family is of decisive importance for immigrants, as it provides them with support in various areas of life, allowing them to integrate more quickly, find a job or even start their own business. In addition, the family helps newcomers better understand American culture, standards, and society.

Family immigration benefits the US economy. Thus, the share of immigrant business in the late 1990s was 13.3%, and in the second decade of the 21st century, it reached almost 30%. In 2015, immigrants formed 51% of all startups worth $1 billion or more, with an average of about 800 people working for each of these companies. Today,  immigrants make up about 25% of all new business owners in the United States.   

It would not be an exaggeration to say that some of these impressive achievements were due to family alone. For example, helping with childcare can enable other family members to work longer hours and thus succeed in business.

Even though family immigration is, in fact, the primary legal direction of immigration to the United States, it would still be wrong to say that this process is devoid of difficulties. We analyze this fact in detail in our article.  

The situation today

obtaining status in us

Family immigration makes up about 70% of all legal immigration to the United States, annually. The total number of immigrants obtaining permanent resident status exceeds one million (in the last decade). According to statistics, each family reunification procedure in the United States allowed 3.5 immigrants (usually spouses and children of the principal applicants) to obtain legal status.

There is one common myth about family immigration: it is believed that it is enough for one person to immigrate to the United States and obtain legal status, and the rest of the family can easily join him. President Trump has given this phenomenon the name “chain of immigration.”

In one of his speeches (January 30, 2018), Trump called for an end to “chain immigration” he stated: “One immigrant can bring an almost unlimited number of distant relatives …”. Trump called for the return of family immigration to a legal basis. There is already an amendment to the Immigration Act that advances two main points: the first is a significant reduction in family immigration, and the second is the creation of a points-based system. Under this system, preference will be given to applicants with a valid job offer from a US employer.

Under current immigration law, US citizens or legal permanent residents cannot directly obtain visas for distant relatives based on kinship. As detailed below, they cannot now apply for a visa for a cousin, uncle, grandfather, or other distant relatives.

Legal restrictions on family preference categories, as well as significant delays in the system, are no small obstacles for those seeking to reunite with their relatives.

It is also no secret that an extensive filtering process is in place to ensure that immigrants do not become an economic burden on American society or pose a criminal or national security risk. In this context, it is interesting to note that, according to statistics, immigrants commit fewer offenses than natives and do not receive a substantial share of government benefits.

Considering all these reasons, it becomes apparent that it is difficult for people with legal status in America to bring their family members to the US.

Who is eligible for PR status in the US based on family ties?

family visa

Many American citizens have family members who live in other countries and whom they would like to bring to the US. Immigration based on kinship requires the participation of at least two family members: the applicant and his relative. Visa availability varies depending on whether the applicant is a US citizen or legal resident and the relative’s relationship, age, marital status, and country of residence.

Under current immigration law, only US citizens and legal permanent residents (green card holders) can apply for legal status for certain family members. There are two main categories: The first is “Immediate relatives,” and the second is “Family preference.”

The Immediate Relatives category includes:

  • Spouse of a US citizen,
  • Unmarried children of US citizens under the age of 21
  • Orphans adopted abroad by US citizens
  • Orphans adopted in the US by US citizens
  • Parents of a US citizen who is at least 21 years of age.

People in this category are not subject to restrictions on the number of immigrant visas (green cards) issued each year. However, visas issued in the Family Preference category in a given year will be deducted from the total number of visas issued. This is because the total number of family visas per year cannot exceed 480,000  – this was established by Congress back in 1990.

It follows that the number of Immediate Relatives visas issued in each fiscal year directly impacts how many Family Preference visas will be issued. For example, in 2015, 70 percent of all family immigrants were in the Immediate Relatives category, and about 45 percent of all legal immigrants to the United States.

Regarding the “Family Preference” category, priority is given to family relations between the applicant and his relative.

Unlike the Immediate Relatives category, relatives are subject to annual visa quotas (both a general limit and a country-specific quota) in the Family Preference category.

As for the general cap, Congress has set a minimum of 226,000 visas in the second category (Family Preference). Thus, visas for this category are guaranteed to be issued, and the first category (Immediate Relatives) receives 254,000. If visas are still available in the first category, they move to the second category, up to a limit of 480,000.

However, since 1996, the number of visas issued under the “ImmediateiRelativesR” category has always exceeded 254,000 per year. As a result, to this day, the number of Family Preference visas issued has remained constant at 226,000 per year.

Interestingly, about 40 percent of Family Preference visas are issued to spouses and minor children of legal permanent residents. Only about 7 percent of all legal immigrants are siblings of American citizens.

Regarding country-specific quotas, there is a limit on the number of visas issued each year to citizens from a particular country. In addition, the  INA establishes a claimed annual quota of 7 percent for all family visas issued for one specific country.

Now we will look at the subcategories of “Family Preference” in the list below; they are in order of priority:

  • Unmarried children of US citizens. They must be single at the time of application and remain so until they receive a green card.
  • Spouses, minor children, and unmarried children over age 21 of green card holders. (Divorced or widowed children are considered “unmarried” and thus fall under this classification. These children aged 21 and over fall into a subcategory called F2B). They wait a little longer than other relatives of the same second preference in a subcategory called F2A.
  • Married children of US citizens and their spouses and minor children. If a relative of this subcategory divorces during the long years of waiting for a visa, they will be eligible for an F1 visa.
  • Brothers and sisters of US citizens, as well as their spouses and minor children, provided that US citizens are at least 21 years old. It should be noted that step-siblings and adopted siblings fall under this classification.

It follows those relatives of an American citizen (and in some cases a permanent resident, green card holder) who can obtain status in the United States based on the closest relationship: husband/wife (fiancé/groom), parents/children, brother/sister.

However, relatives of an uncle/aunt or cousin (or other relatives) who have US citizenship cannot exercise this right.

It is also impossible to “jump” a generation, i.e., a grandparent cannot apply for legal status in the United States for a grandchild if the grandparent’s child (grandchild’s parent) is not themselves a US citizen. 

“Immediate Relatives”

NameApplicantBeneficiary
IR-1US citizenSpouse of a US citizen
IR-2US citizenUnmarried child under 21 years of age
IR-3US citizenOrphans adopted abroad
IR-4US citizenOrphans adopted in the US
IR-5US citizen over 21Parents of a US citizen

“Family Preference” 

PreferenceNameApplicantBeneficiaryAmount
1stF-1US citizenUnmarried children 21 years of age and older23,400+all unused visas in 4th preference
2ndF-2APRSpouses and unmarried children under 21 years of age77% of 114,200
3rdF-2BPRUnmarried children 21 years of age and older23% of 114,200
4thF-3US citizenMarried children23,400+all unused visas in 1st and 2nd preference
5thF-4US citizen over 21Siblings65,000+all unused visas in first 3 preferences

How long will you have to wait?

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As you know, the Immigration and Nationality Act (INA) sets an annual limit on the number of immigrant family visas issued to foreign citizens. The Department of State is responsible for issuing immigrant visas, and USCIS plays a crucial role in determining eligibility for an immigrant visa.

As mentioned above, Immediate Relatives citizens can get their green card without worrying about waiting times, visa availability, or quantity restrictions.

At the same time, consideration of cases by the immigration authorities (USCIS and the State Department) will stretch for many months (sometimes even more than a year).

Immediate family members (spouses and minor children) will usually receive their Green Card in a relatively short time (emphasis here on the word “relatively”).

In Family Preference, the waiting period for family members can range from a few years to decades (depending on the subcategory). In general, it can be said that higher priority relatives are likely to wait less time. However, the number of green card applicants exceeds the number of visas issued each year (valid for the last few decades), which leads to a long wait. It’s especially true for applicants from countries with a high population density and a strong interest in immigrating to the United States.

So, for example, based on requests processed in January 2018, spouses and minor children of US permanent residents waited almost two years, unmarried adult children of citizens and permanent residents about 7-8 years, and adult married children, as well as brothers and sisters US citizens – about 14 years.

The statistics published by the State Department (2017) show that the Family Preference category constitutesapproximately 4.7 million requests in the system. In addition, about 3.9 million requests are on the waiting list, i.e., these applications have already been processed and approved and are just waiting for the appropriate visas to become available.

It should be noted that during the waiting period, however long it may be, the foreign relative must remain in their home country until they can legally enter the United States.

Of course, suppose a foreign relative has a valid tourist visa. In that case, they will usually be allowed to enter the United States as a tourist, i.e., entry only for a short period and without a work permit. Understandably, it is crucial to meet during those years for families that will have to wait years to be reunited. For this reason, it is advisable to try to obtain a tourist visa before starting the process of immigrating to the US.

The following table lists the steps required to complete the family reunification process. For more accurate information, visit the Department of State website:

ProcedurePrimary requirementsResponsible body
Starting the ProcessSubmitting Form I-130 and all Supporting DocumentsUSCIS
Transfer of the case to the NVCCompleting the Online Form DS-260
Providing additional documents from the beneficiary (military ID, passport, birth certificate, etc.)
Completing the Affidavit of Support (Form I-864)
NVC
Consular processingMedical Checkup
Police clearance certificate
Biometrics
US Embassy
Interview at the US EmbassyThe interview where you must bring the originals of all documentsUS Embassy
US EntryInterview by immigration officer at the US border (border control)
Submitting the sealed envelope received from the US Embassy
CBP
Obtaining a Green CardReceive a Green Card by Mail (Form I-551)USCIS

In conclusion, because it is impossible to know precisely how many people from a given country will apply in a particular year, and given the annual restrictions on immigrant visas, no one can say how long a relative in the Family Prreference category will have to wait.

What’s certain is how long people who have already submitted applications wait in line – as of the day of the review. However, a relative’s place in the queue is determined based on the date their application (Form I-130) was filed correctly and received in the system.

The family reunification procedure

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The family reunification procedure for the citizen applicant and the lawful permanent resident of the United States consists of the same basic steps.

There are two main ways to obtain permanent resident status, aka green card.

The first path is the most common and is suitable for eligible relatives who are not in the US.

The process begins with the applicant (US citizen or lawful permanent resident) preparing and submitting a Petition for Alien Relative (Form I-130), which is issued by a USCIS agency and is available for free download on a government website.

The primary purpose of Form I-130 is to verify a valid family relationship between the applicant and the foreign relative. In the case of the “Family Preference” category, the priority date will also be automatically determined on the day the form is received. Note that approval of the receipt of the form by the United States Citizenship and Immigration Services (USCIS) is not a fundamental approval of the procedure.

The I-130 must also indicate the location of the immigrant visa interview. In most cases, this will be the US embassy (or consulate) in the country where the applicant’s relative lives.

Copies of all relevant documents (accompanied by an English translation if tthe original document is not in English) must be attached to Form I-130. The list of required documents includes, among other things, proof of the applicant’s status (American passport, certificate of citizenship, green card, etc.), evidence of a family relationship between the applicant and his or her relative (birth certificate, marriage certificate, etc.), and other documents – depending on the specific case.

For example, in the case of an application for the status of the applicant’s spouse (marriage visa), documents confirming the sincerity of the relationship must also be attached to the form. The intention is to show that this is a bona fide, genuine marriage and not a fictitious marriage. To this end, you can attach letters from friendsf, relatives, or employers, detailing the nature of the relationship between the couple throughout their acquaintance. It is also recommended to attach joint photos of the couple (at different places and times).

Form I-130 and all supporting documents must be filed at the USCIS Immigration Office in the local jurisdictional office. It is essential to keep copies of everything submitted, including a copy of supporting documents and receipts of  fees paid (if not paid by credit card).

Upon receipt of applications and attachments, USCIS sends an official confirmation to the applicant or his representative, if any. In some cases, the immigration service requires clarifications and/or additional evidence (RFE). Once the application is approved, the applicant will receive a letter from USCIS indicating where the case was referred.

Generally, for non-US beneficiaries, the case will be referred to the National Visa Application Center (NVC), which will retain the issue and continue processing it at the end of the waiting period, i.e., when an immigrant visa becomes available (for waiting periods – see above). During this period, the beneficiary has nothing to do but wait. However, iin the Immediate Relative” category, a visa is issued immediately.

When the case is reopened, the National Visa Application Center will issue forms and instructions to the beneficiary. Also, in the future, it will be necessary to present copies of additional documents, such as a birth certificate and a passport.

At this stage, an affidavit of financial support (Form I-864) must also be attached to the supporting documents. One of the most important requirements for all options for obtaining legal status based on kinship is the requirement to prove the desire and ability of the American relative to financially support the foreign relative (if necessary). In other words, the immigration authorities are trying to ensure that an alien relative does not become a burden on American society. It should be clarified here that only a US citizen or legal permanent resident over the age of 18 whose permanent residence is in the US can sign an affidavit of financial support.

In addition to the above, you will need to pay additional fees. The National Visa Application Center (NVC) will also refer applicants to their website for instructions . At this point, you will need to complete the online form DS-260. The NVC will check all the documents and the visa recipient’s details.

Finally, upon completing the recipient’s security screening and payment of all applicable fees, the National Visa Application Center will forward the case to the US embassy in the recipient’s state (as listed on Form I-130). In addition, the beneficiary will need to undergo a medical examination performed only by a licensed doctor and may need to receive certain vaccines.

Also, the sponsored foreign relative will need to present a police certificate (from any country in which he or she has lived for more than six months after reaching the age of 16 and from any country in which he or she was arrested) and submit fingerprints (biometrics), after which he or she will be invited for a personal interview at the embassy.

The interview at the embassy is one of the last steps in the family reunification process. Therefore, before the interview, the beneficiary should collect the originals of all documents filed to date and any other additional records that they believe may enhance their case.

In spousal reunification cases, it is essential to clarify that at the interview at the embassy. ​​In doing so, the beneficiary will not have to undergo a strict “cross-examination.” This is different from the situation in which the beneficiary is being interviewed within the United States. In US, the beneficiary must prepare for any questions about the nature of the relationship between him/her and the US citizen or legal permanent resident that sponsored him/her. The interview will also raise  other issues in order to examine his/her “fitness,” such as health problems, criminal history, etc.

At the embassy, easy questions are asked during the interview. For example, the officer can ask about the plans of the beneficiary upon arrival in the United States (what will s/he do there, where will s/he live, where will s/he work, etc.), and upon completion, provided that the interview has gone well, the visa will finally be approved. In this case, the consular officer will issue a sealed envelope containing all relevant materials. Under no circumstances should you open the envelope – this right belongs exclusively to the immigration officer when entering the United States.

Usually, the beneficiary receives the passport and the visa by mail within a few weeks after the interview. The passport will indicate its status and date of approval.

After receiving approval from the embassy as described above, the beneficiary will be required to complete another interview upon entering the United States. The role of the immigration officer at the border is to ensure that the applicant for entry into the United States is indeed eligible. The immigration officer may ask questions about previous convictions, serious illnesses, or violations of any visa conditions.

Finally, once the beneficiary is cleared to enter the United States, he/she must receive, within a few weeks, the coveted green card (Form I-551) by mail to the US address he/she previously provided.

The second path, called “Change of Status,” is suitable for relatives who are already in the United States.

By law, the family reunification procedure must occur when the foreign relative is outside the United States. Only in certain limited cases, and subject to the availability of an immigrant visa, will a relative who is already in the United States be able to apply for a change of status (to obtain the status of a lawful permanent resident).

In such cases, the foreign relative may “adjust his status” by filing Form I-485 with all other relevant documents (such as medical examination results, police clearance certificate, etc.). to his/her  local USCIS office.

However, changing status is only available to a tiny group of applicants and is generally risky and not always recommended. For example, it is not recommended to choose this method when an American citizen marries a foreign tourist in the USA.

US citizens can apply for a status change for their spouse, but this comes at the risk of being deported. In addition, someone who enters the United States as a tourist and soon after that seeks to change his/her status will have to prove to the immigration authorities that he/she originally, before entering, had no intention of settling in the United States.

Recently, it has become much harder to cope with this task. Immigration officials look into such cases very carefully. The verification of the legitimacy of marriage is carried out in the United States with greater suspicion and scrutiny than in the country of the foreign relative. Therefore, it is not difficult to understand that the “Change of Status” method, in such circumstances, is not easy to implement.

A clear example of the legitimate use of the “change of status” method is the procedure for obtaining a Fiancé Visa. Under this visa procedure, the foreign relative legally enters the United States. Then, at a later stage, after marriage in the United States within the legal period, he/she will be able to apply for a change of status to become a permanent resident, i.e., green card holder.

Conclusion

As we can see,  the following criteria apply to most cases for immigration based on family relationships:

  • The applicant must be a US citizen or a US permanent resident;
  • The applicant can only apply for their immediate family member or someone who falls into one of the Family Preference sub-categories;
  • The applicant must be at least 21 years of age to apply for a parent/sibling;
  • The applicant must have sufficient funds to become a sponsor for his/her relative. He/she will be required to sign an affidavit of financial support.
  • To sign an affidavit (as a primary or joint sponsor), the US applicant must be at least 18 years of age and reside in the US.
  • The foreign relative must obtain approval to the family reunification procedure after passing through all relevant assessments and procedures (economic, security, medical, etc.) and wait, if necessary, for the availability of an appropriate immigrant visa.

Note: The primary sponsor, if s/he is a US citizen, may sign the affidavit of support while living abroad, however, s/he must show that s/he intends to reside in the US upon approval of his/her beneficiary’s immigrant visa.

Although the procedure for family reunification, for some reason, is considered relatively simple, in fact, due to the many nuances in all types of family visas, this is a rather complicated procedure. Often, due to errors (technical or material), the process is delayed and may even end in a “refusal”.

USCIS statistics show that thousands of family reunification applications (Form I-130) are returned for correction, additional information, or even rejected. Thus, out of approximately 248,000 applications submitted each year, about 20,000 applications are returned for correction of deficiencies, clarification, or more information, and about 16,000 applications are rejected.

Therefore, it is crucial that anyone interested in obtaining legal status in the US based on family reunification study the procedure in advance to plan his/her actions in the best possible way.

It is no secret that the procedure for family reunification requires excellent attention to detail, and applying without a thorough understanding of the process is not worth the risk of refusal. As a result, many people choose to contact a lawyer that specializes in US immigration. A lawyer specializing in this area can save you valuable time and worry.

Our firm has nearly 30 years of experience in the US immigration industry. As experienced immigration professionals, we know how to help families reunite. Soyou don’t have to do this alone. Our firm has helped thousands of relatives of US citizens, and legal permanent residents successfully enter the United States. As a result, we are well aware of the US immigration system, its requirements, and how to meet them.

In any case, given the complexity and the risks associated with the unprofessional handling of the immigration process, it is strongly recommended that you consult with an experienced lawyer in the field before taking action.

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