By Brian Figeroux, Esq. | Editorial credit: art4you1 / shutterstock.com
One of the most common pathways to obtaining permanent residency (commonly known as a green card) in the United States is through family-based immigration. U.S. citizens and lawful permanent residents (green card holders) can petition for certain family members living overseas to join them in the U.S. and apply for permanent residency. This process is known as family-based immigration, and it requires several steps that must be carefully followed to ensure success. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.
In this article, we will break down the process for someone living overseas to have a U.S. citizen or green card holder family member petition for their green card. We will also explore how this process might impact any existing U.S. visitor visas, what to expect in terms of timelines, and potential challenges that may arise.
- Overview of Family-Based Immigration
Family-based immigration allows U.S. citizens and lawful permanent residents (LPRs) to sponsor certain relatives to immigrate to the United States. The process involves filing a petition, going through consular processing (for family members overseas), and ultimately obtaining a green card.
Categories of Family Members Eligible for Sponsorship
The eligibility to sponsor a family member for a green card depends on the petitioner’s status (whether they are a U.S. citizen or green card holder) and the relationship to the relative.
- For U.S. Citizens: They can sponsor:
- Immediate relatives, which include spouses, parents (if the petitioner is over 21), and unmarried children under 21 years old. These categories are not subject to visa quotas, which means there is no waiting period once the petition is approved.
- Other family members, including:
- Unmarried sons and daughters over 21.
- Married children of any age.
- Siblings (if the petitioner is over 21).
- For Green Card Holders (Lawful Permanent Residents):
- They can sponsor:
- Spouses.
- Unmarried children, regardless of age.
- They can sponsor:
Green card holders cannot sponsor married children or siblings.
Preference Categories and Visa Availability
Family-based immigration for relatives outside the “immediate relatives” category is subject to visa availability under the preference category system. Immediate relatives of U.S. citizens are not subject to numerical limits, but other family categories (like siblings of U.S. citizens or spouses of green card holders) are subject to annual limits, which can create long waiting times depending on the relationship and the petitioner’s country of origin.
- First Preference (F1): Unmarried adult children (over 21) of U.S. citizens.
- Second Preference (F2A and F2B): Spouses and children of green card holders (F2A), and unmarried adult children (over 21) of green card holders (F2B).
- Third Preference (F3): Married children of U.S. citizens.
- Fourth Preference (F4): Siblings of U.S. citizens.
Once the petition is approved and the visa becomes available for the relative, the process moves forward to consular processing or adjustment of status if they are already in the U.S.
- Step-by-Step Process for Family-Based Green Card Petition for Overseas Relatives
Step 1: Filing Form I-130, Petition for Alien Relative
The process begins when the U.S. citizen or green card holder files a Form I-130, Petition for Alien Relative, with U.S. Citizenship and Immigration Services (USCIS). This form establishes the family relationship between the petitioner (U.S. citizen or green card holder) and the beneficiary (the relative living overseas).
- Supporting Documents: The petitioner will need to submit supporting documents proving their relationship with the beneficiary. This may include birth certificates, marriage certificates, or proof of adoption, depending on the relationship.
- Filing Fee: As of 2024, the filing fee for Form I-130 is $535, but it’s advisable to check the USCIS website for current fees.
Once USCIS receives the I-130 petition, they will review it and either approve or deny the application. Processing times can vary, but it generally takes several months for USCIS to adjudicate the I-130 petition.
Step 2: Wait for Approval and Visa Availability
If the I-130 petition is approved, the next step depends on the family member’s category:
- Immediate Relatives (spouses, parents, unmarried children under 21 of U.S. citizens): These applicants can proceed directly to the next steps, as visas are immediately available.
- Preference Categories (e.g., adult children, siblings): For relatives who fall under preference categories, the approved petition enters the visa queue. Because of annual visa caps, applicants may have to wait for their priority date (the date the I-130 petition was filed) to become current based on the Visa Bulletin, which is updated monthly by the U.S. Department of State.
Step 3: Consular Processing for Overseas Relatives
Once the visa is available, overseas applicants go through consular processing. This involves the following steps:
- National Visa Center (NVC) Processing: After USCIS approves the petition and the visa becomes available, the case is transferred to the National Visa Center (NVC), which collects fees and documentation to prepare for the visa interview.
- Complete Form DS-260: The beneficiary (overseas family member) must complete Form DS-260, which is the Online Immigrant Visa Application. This form asks for detailed personal information, including background, employment history, and travel history.
- Submit Supporting Documents: The NVC will also require submission of supporting documents, such as police clearance certificates, medical exams, financial support affidavits, and civil documents like birth certificates and marriage certificates.
- Pay Visa Fees: Fees for the immigrant visa application, affidavit of support processing, and medical exam must be paid during this stage. As of 2024, the total cost of consular processing can range from $300 to $400, depending on various factors.
Step 4: Attend the Visa Interview at the U.S. Consulate
Once all documents are submitted and processed, the applicant will be scheduled for a visa interview at the U.S. Embassy or Consulate in their home country. During this interview, a consular officer will ask questions to verify the relationship, ensure that the applicant is eligible for immigration, and assess the legitimacy of the application.
- Bring Required Documents: The applicant must bring all required documents to the interview, including their passport, photos, medical exam results, and financial support documentation.
- Outcome: If approved, the beneficiary will receive an immigrant visa in their passport, which allows them to travel to the U.S. as a lawful permanent resident.
Step 5: Enter the U.S. and Receive the Green Card
Upon entering the U.S. with the immigrant visa, the beneficiary will be processed by Customs and Border Protection (CBP) at the port of entry. They will receive a stamp in their passport, which serves as proof of lawful permanent resident status (green card) until the official green card arrives by mail.
- Impact of Family-Based Green Card Petition on a Visitor Visa
Many individuals who have a visitor visa (B-1/B-2) to the U.S. may wonder how filing for a green card through a family member might affect their current visa status. Here are a few key points to consider:
- Dual Intent: A visitor visa is intended for short-term stays for purposes like tourism, medical treatment, or business. The visa does not allow the holder to remain in the U.S. permanently. Filing a family-based green card petition could raise concerns about “immigrant intent”, as applying for a green card indicates a desire to stay in the U.S. permanently. This can potentially lead to challenges if the individual tries to enter the U.S. on a visitor visa while their green card application is pending.
- Visa Denial or Revocation: If a visitor visa holder applies for a green card, their visitor visa may be scrutinized more closely. In some cases, visa officers at U.S. embassies or consulates could deny or revoke the visitor visa, particularly if they believe the individual intends to overstay their visa while waiting for their green card.
- Honesty at the Border: If someone holding a visitor visa tries to enter the U.S. while they have a green card petition pending, they should be prepared to explain their intentions honestly to U.S. border officials. Misrepresenting their intentions can lead to a visa being canceled or even a ban from entering the U.S.
In summary, filing for a green card through a family-based petition can affect a person’s visitor visa. It’s essential to consult an immigration attorney before traveling on a visitor visa during the green card application process.
- Conclusion
The family-based green card process for relatives living overseas involves multiple steps, from filing the initial I-130 petition to attending a consular interview and entering the U.S. as a lawful permanent resident. For U.S. citizens and green card holders, this process is a way to reunite with family members in the United States, but it requires careful preparation and attention to legal details.
Furthermore, it’s important to understand the potential impact of filing a green card petition on an existing visitor visa. Navigating these complexities can be challenging, so working with an experienced immigration attorney can be essential in ensuring a smooth process. The Law Firm of Figeroux & Associates, which has over 25 years practicing immigration law, can help you navigate the process and avoid common pitfalls. To schedule an appointment, visit www.askthelawyer.us or call 855-768-8845. The lawyer you hire does make a difference!