A United States citizen or Lawful Permanent Resident ("LPR" or green card holder) can file a petition to obtain lawful permanent resident status for certain relatives. The U.S. citizen or LPR is called the “Petitioner” during this process and the foreign national is called the “Beneficiary.” The petition is Form I-130, and if the Beneficiary is the spouse of a U.S. citizen or permanent resident, Form I-130A is required as well.
There are several categories the foreign national may fall within, and the first category is, interestingly, not a “preference category.” “Immediate relatives” include spouses, parents and children (un-married and under 21) of U.S. citizens and there is no numerical limitation on the number of these visas available each year. Therefore, a visa is always “immediately available” and the Beneficiary is not placed in a preference category. Instead, an immediate relative can immediately proceed to the next step of converting their petition into permanent resident status (see below).
If the Beneficiary is not an “immediate relative,” they must then fall within one of the following preference categories for a petition to be filed on their behalf, each of which have a limited number available each year:
First: (F1) Unmarried Sons and Daughters (21 years of age or older) of U.S. Citizens
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents
(F2A) Spouses and Children of Permanent Residents
(F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
Third: (F3) Married Sons and Daughters of U.S. Citizens
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens
Because there are usually more applicants in each preference category than there are visas available each year, there is a waiting list to obtain a visa. A Beneficiary's place in line is determined by their category, date the petition was filed, called the “priority date” and in certain cases, their country of nationality. Each month the U.S. Department of State issues a Visa Bulletin providing an update on the current availability of each visa category. When the priority date is earlier than the date listed for the Beneficiary's visa, a visa is “immediately available” or “current” and the Beneficiary may continue the process of becoming a lawful permanent resident.
If the Beneficiary is an immediate relative, or if their priority date is current, they may continue one of two ways to convert the petition into permanent resident status. First, if the Beneficiary is currently in the United States and certain other conditions are met, they may apply for “adjustment of status” to gain their permanent resident status by filing their application, Form I-485, with U.S. Citizenship and Immigration Services and remaining in the United States throughout the process. If the Beneficiary is outside the United States, or if certain other conditions are not met, the Beneficiary continues the process through the U.S. Department of State and the U.S. Embassy or Consulate in their home country. This is called “consular processing.” The Beneficiary is issued an immigrant visa in their passport and when they arrive to the United States, they are admitted as a lawful permanent resident.
It is also possible for a United States citizen to seek permanent resident status on behalf of their fiancé. This is a multi-step process that involves (1) the filing of a petition, Form I-129F, by the U.S. citizen ("Petitioner") on behalf of their fiancé ("Beneficiary"); (2) coordination with the U.S. Department of State and the U.S. Embassy or Consulate in the fiancé's home country for the issuance of a K-1 non-immigrant visa; and (3) following marriage within 90-days of the fiancé's arrival, the filing of Form I-485, with U.S. Citizenship and Immigration Services to convert the K-1 non-immigrant status into permanent resident status.
Contact the Law Offices of Michael Kohler, PLLC to discuss your family-based immigration situation.