Family based visas are given to individuals who have a close relationship to a US Citizen or permanent resident. Unless an individual is an immediate relative (spouse, parent or minor (under 21) child of a US citizen), he/she is subject to an annual numerical quota limitation under visa issuance guidelines published identified monthly by the US Department of State. . The total number of visas available for non-immediate relative family sponsored immigrants is 480,000 annually. When the quota numbers are over subscribed for any year, the foreign relative must wait until the next fiscal year (October 1) and until the visa waiting list for their visa category becomes current before they can determine whether they have become eligible under that visa category.
Spouse, minor child under 21, or parent of a US Citizen (not subject to quota listed above). This category has an unlimited annual amount of visas available and can be utilized by a US Citizen who can meet the residency and financial requirements for sponsorship. There are several methods for filing this type of visa and each case should be reviewed on an individual basis. Again, legal advocacy strategy is critical, particularly for any interim trips to the US by the foreign national family member.
K-1 Fiancé(e) Visa:
A US citizen with an overseas fiancé(e) may be able to bring his/her fiancé(e) to the US prior to getting married. The sponsor and his/her fiancé(e) must show proof that they have met in person at least once prior to the fiancé(e)’s arrival in the US. The petition is processed initially with the appropriate US Citizenship and Immigration Services (US CIS) Service Center with final processing completed at the US Embassy/Consulate abroad where the fiancé(e) appears for an interview with the Consular officer. Once the fiancé(e) arrives in the United States, the couple MUST marry within 90 days of entry, otherwise the fiancé(e) has violated his/her nonimmigrant visa status. It cannot be extended or re-generated without a return abroad.
A US citizen with an overseas spouse or child may be able to bring his/her family to the US under this temporary visa, prior to issuance of US Resident Alien status. The beneficiary must be married, and children (K-4 Visa) must be born to the US citizen (prior to the sponsor acquiring US Citizenship), adopted before the age of 16, or a stepchild when the marriage to the biological parent took place before the child was 18 years old. The K-3/K-4 Petition MUST BE processed by a US CIS Regional Service Center and later completed at the US Embassy/Consulate abroad where the foreign national was married to the US citizen (not the place of residence). If the marriage took place in the US, then the interview can be held in the foreign national’s country of residence. K-3/K-4 Visas are valid for 2 years. Foreign nationals have the option of processing the final Resident Alien status within the US or at the US Embassy/Consulate abroad. Please note, the 3 and 10 year bars to US entry can still apply to family members who have spent significant time in the US while out of status.
A US Resident Alien (green card holder) with an overseas spouse or child may be able to bring his/her family to the US prior to issuance of US Resident Alien status. This law was created in part from the long delays (at least 5 years) from the time of initial application for Resident Alien status for the immediate relatives of the green card holder, until the family can come to the US. The persons must be married, and children must be born to the US green card holder, adopted before the age of 16, or a stepchild when the marriage to the biological parent took place before the child was 18 years old. A significant caveat to this category is that in order to be eligible for V status, an Immigrant Relative (I-130) Petition must have been filed for the overseas family member(s) on or before December 21, 2000, the I-130 must have been pending for at least 3 years, and the green card is unavailable. The Petition is processed by US CIS Regional Service Center and either approved for the family in the US (change of status) or completed at the US Embassy/Consulate abroad where the foreign national resides. It is very important to remember that the 3 and 10 year bars to US reentry can still apply to family members who have spent significant time in the US while out of status.
The list below is used by the US Department of State for qualifying various family based visa categories.
|First||Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.|
|Second||Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:|
|A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;|
|B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.|
|Third||Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.|
|Fourth||Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.|
In most situations, family sponsored cases begin with the filing of an Immigrant Relative Petition with the respective CIS Regional Service Center. Once that is approved, and the priority date is current for the appropriate category, there are two options for securing Resident Alien status for the family member. These are:
- Adjustment of Status – If the family member is in the US, and petition priority visa date is currently available, and assuming there are no bars to filing adjustment of status for the person, all paperwork is filed at a local CIS District Office. The family member MUST be physically present and residing in the US (no Canadian/Mexican commuters) to be eligible, and he/she will be unable to travel after filing without prior written CIS special approval. Work and travel authorization upon petition, filing, and approval is available as long as the case is pending.
- Consular Processing – This involves filing all immigrant visa paperwork through the US Consulate of the employee’s citizenship or country of current legal residence. An interview and personal appearance at the Consulate for the entire family is required.