Family

FAMILY BASED IMMIGRANT VISAS
(IR) Immediate Relatives (No Per Year Numerical Cap/Immediate Visa Availability):

IMMEDIATE RELATIVES INCLUDE:

1. Spouses of United States citizens;

2. Minor children (under 21) of United States citizens, step-children of US citizen where the qualyifing marriage took place before the child turn 18, and children adopted by US citizen before they turn 16 (and all other requirements are met);

3. Parents of United States citizens, provided the citizen petitioner is at least 21 years of age; and

4. Spouses of deceased United States citizens who were married for at least two years at the time of their citizen spouses' death are eligible for immigrant visas, provided the couple was not legally separated at that time and the alien spouse files an immediate relative petition within two years of the death of the citizen spouse and the alien does not remarry. Minor children (under 21 years of age) of such spouses are also considered immediate relatives subject to the same restrictions as spouses.

Although not included as immediate relatives, the following two groups appear in the same section of the statute since they are not subject to direct numerical limitations: (a) an alien born after the issuance to an alien of an immediate relative or preference visa, but before it is used to apply for admission to the United States and (b) an alien born to a lawful permanent resident during a temporary visit abroad.

There are no derivative beneficiaries of immediate relatives.

Preference Categories-not "Immediate Relatives under the INA"-

First Preference Category (FB1)( Yearly Numerical cap does apply):

• U.S. Citizen's Unmarried Sons and Daughters (Over 21) and Their Children

Second Preference Category (FB2) (Yearly Numerical cap does apply):

• (A) Spouses and Minor Children of U.S. Lawful Permanent Residents (Green Card Holders)
• (B) U.S. of Lawful Permanent Residents Unmarried Sons and Daughters and Their Children

Third Preference Category (FB3) (Yearly Numerical cap does apply):

• U.S. Citizen's Married Sons and Daughters (Regardless of Age) and Their Children

Fourth Preference Category (FB4) (Yearly Numerical Cap does Apply ):

• Brothers or Sisters (Spouses and their Children) of US Citizens 21 Years of Age or Over

Priority Dates:
In the context of family-based immigration, a priority date is established on the date that the Petition for Alien Relative (Form I-130) is accepted for processing by the CIS. Immigrant visas are issued to preference applicants in chronological order according to their priority dates. for Because Immediate Relatives (See above)are not subject to quota restrictions, priority dates are not normally relevant for them.

Derivative Beneficiaries:
The spouse and unmarried children (under 21 years of age) of the principal alien under the family-sponsored preferences are family-sponsored prefrences (except for immediate relatives) entitled to the same status and order of consideration as the principle preference alien, if accompanying or following to join the spouse or parent.

Petitioner's Upgrade of Status from Greencard to US Citizen:
In cases where an foreign applicant is the beneficiary of an approved Family Based 2A petition as the spouse of a lawful permanent resident, and the spouse becomes a US citizen, the visa petition classification automatically converts to Immediate Relative status and the foreign spouse may immediately apply for adjustment of status since a visa number is always available for Immediate Relatives.

Click here http://travel.state.gov/visa_bulletin.html to see the US State Department's current Visa Bulletin which specifies the priority dates for each preference category at this time.

Family Based Filing Procedures
In most cases a US citizen or legal permanent resident (meaning a Greencard status holder) must file an Alien Relative Petition requesting that the CIS confirm that the "beneficiary" (the person seeking to become a permanent resident) is entitled to immediate relative status (IR) or is within one of the family preference categories, and therefore, qualifies to apply for an immigrant visa when their priority date becomes current.

If the beneficiary is physically present in the United States and is eligible to apply for adjustment of status immediately as an immediate relative (for example due to marriage to a US Citizen), it is possible to simultaneously file the Alien Relative Petition (Form I-130) and an Application for Permanent Residence (Form I-485) directly with the CIS district office that has jurisdiction over the foreign beneficiary's residence. In such cases, a mandatory interview will be scheduled with the INS district office in approximately 6--24 months. This substantial variation depends entirely on the particular district office's workload, and is an area where Immigration Lawyers like myself are lobbying the US Congress to remedy.

For all other cases (i.e., in case where the beneficiary is outside the US and/or the beneficiary will be classified in one of the preference categories for which there is a waiting period before a visa will become available (see Priority Date discussion above)), the I-130 Alien Relative Petition is filed with the CIS Service Center with jurisdiction over the petitioner's place of residence. When the petition is approved, the files are transferred to the National Visa Center. When the priority date becomes current (which is upon approval only in Immediate Relative cases),depending upon the country where the beneficiary resides,the NVC pre-process the entire final stage document collection process in the United States,and then send the files to the US consulate for interview once the case in considered ready. This process could take 4-8 months.

For the remaining countries not subject to the NVC pre-processing procedure, the NVC merely notifies the US consul post that the priority date has been reached and immigrant processing may begin.The consul post then mails out specific forms for processing and return befor and immigrant visa interview appointment is scheduled. Typically,processing at these post may take 2-6 months.

Importantly, on December 21, 2001, the Immigration Law was modified to permit overseas spouses and children of US Citizens (Immediate Relatives) to obtain a Special K Visa allowing them to enter, reside and work in the US in temporary status while they await the processing of an I-130 petition previously filed with the INS by the USC petitioner.

K-1 (Fiance Visa)

The K-1 Visa category permits the Fiance of a U.S. Citizen Petitioner to enter United States for 90 days in order to make a final decision and to complete a marriage to the United States petitioner and thereafter to apply for permanent residence in United States. The K-1 Visa has been called a hybrid visa since it is a non immigrant visa classification "designed" to facilitate the admission of intending immigrants. Thus, K-1 Visa processing is very similar to Immigrant Visa processing in family based cases. Additionally K-1 Visa processing does take longer than processing for other Non immigrant Visas. The K-1 Visa petition is filed with the U.S. Immigration Service on Form I-129F. Other supporting documentation and forms are required.

The Fiance Visa Petition must be supported by proof of:

(1) the U.S. citizenship of the petitioner by way of birth certificate or US passport;
(2) that the parties have met in person within two years before the filing;
(3) that they intend a marry within the 90 day after the foreign applicant is admitted to United and that they are legally able to marry (including proof of the termination of any prior for marriages of either party)

Upon Approval of the petition by the INS, a notice is to the petitioner and to the U.S. Consul post abroad which is designated on the INS FiancEVisa Petition. On receipt of the approved petition from the INS, the Consulate generally issues a letter to the beneficiary outlining the steps for K-1 visa application. Since the K-1 Visa applicant seeks to enter United States ultimately for the purpose of applying for Immigrant status, there are number of documents which must be gathered and presented to the U.S. Embassy in a two-step procedure. Once the US Embassy is informed that all documentation is ready, they will schedule an interview appointment, and in most cases will issue the K-1 Visa on the date of the K-1 Visa applicant is interviewed.

Upon admission to United States the K-1 Visa applicant is entitled to request work permission and should do so at the airport during their initial processing. Some airport facilities have the capability of issuing a work permission document on the spot. Others will direct you to file your application with the CIS Immigration Service Center with jurisdiction over the place where the K-1 admittee intends to reside. The specific terms of the K-1 Visa require that the K-1 Visa holder must marry the U.S. citizen petitioner within the 90 day period following their entry, but it does not require that an application for permanent residence also be filed within that 90 day period. As such, the critical point to remember it is to complete the marriage ceremony within 90 days. K-1 Visa applicants may not change their status or extend their status, and if they do not marry within the 90 days, they must depart United States immediately.

The final step in K-1 visa processing for permanent residence (for the Greencard) based upon the marriage to the US Citizen Petitioner within the 90 day period following his/her admission into United States is to file an Application for Adjustment of Status with the local CIS office with jurisdiction over the area where the applicant resides. This application (Form I-485) is now taking on average 18 months before it is scheduled for interview and final approval. While the Application for Adjustment Status is pending, the K-1 Visa holder may request documentation of work permission, and may also request permission from the INS to depart United States temporarily for business or personal reasons.

K-3 Non Immigrant Visa Spouses of U.S. Citizens
The LIFE Act, passed in September 2001, established a new nonimmigrant visa category within the immigration law that allows the spouse (K-3) or child of a U.S. citizen (K-4) to be admitted to the United States in a nonimmigrant category. The admission in K-3/K-4 status allows the spouse or child to enter the US to await, together with the US Citizen, the completion of processing for permanent residence. It also allows those admitted in K-3/K-4 status to apply for work permission.

If you are in K-3 or K-4 status, you may travel using your unexpired K-3/K-4 nonimmigrant visa to travel outside of the United States and to return.