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Family-Based Immigration and Family Reunification

Family-based immigration is based on the existence of a qualifying relationship between the intending immigrant ("beneficiary") and either a United States citizen or a permanent resident ("petitioner"). Preference immigrants are subject to numerical restriction ("quota"); immediate relative are not.

Immediate Relative:

Parents, spouses and children, including step-children, and adopted children of United States citizens are classified immediate relatives. The most important factor in this category is evidence of the relationship. Similarly, there are certain age requirements that determine whether the petitioner may file a petition on behalf of the beneficiary, and whether the beneficiary can be qualified as an immediate relative.

The following is a brief overview of some of the requirements:

  • A United States citizen must be 21 years of age or older to petition for a parent.
  • Spouses must present evidence of a valid marriage, evidence that the marriage is recognized under the Immigration and Naturalization Act, and proof that the marriage has been entered into in good faith. If the spouses have been previously married, they will have to provide evidence of final divorce.
  • A child is an unmarried individual under the age of 21. Once a child turns 21 years of age or marries, he or she no longer qualifies as an immediate relative. Note the beneficiary may become eligible under one of the preference categories.
    Under the Child Status Protection Act (CSPA), a child who reaches 21 years of age while a visa petition is pending will still be considered a "child" for immigration purposes if the petition was filed after August 6, 2002.
  • Same-sex couples can now benefit from family-based immigration.

Preference Categories:

The immigration laws have established the following preference categories:

  • First preference: unmarried sons and daughters of U.S. citizens.
  • Second preference: spouses and children of LPRs (2A); and unmarried sons and daughters of LPRs (2B);
  • Third preference: married sons and daughters of U.S. citizens; and
  • Fourth preference: brothers and sisters of U.S. citizens.

The Visa Bulletin, updated monthly, provides information about visa availability for each preference category. To determine if a visa number is available determine the I-130 petition's priority date, the date is received by the U.S. Citizenship and Immigration Services for processing. Determine which column on the chart, based on place of both. Cross-reference that with the category to get the cutoff date. If the cutoff date is reached, a visa number is available.

Under certain circumstances, the beneficiary's spouse and minor children may be eligible for an immigrant visa under the same preference category.

Procedure

  • The petitioner must file Form I-130, Petition for Alien Relative with the U.S. Citizenship and Immigration Services to establish the qualifying relationship between Petitioner and Beneficiary. The burden is on the petitioner to prove the relationship. The proper documents must be submitted with the petition.

Contact David F. Vedder, P.A.

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