Who Can Petition for a Family Member?
U.S. immigration law allows U.S. citizens and lawful permanent residents to sponsor certain family members for lawful permanent residency (a “green card”) in the United States. U.S. citizens may sponsor the following family members:
♦ Unmarried children under 21
♦ Parents (if the sponsoring citizen is over the age of 21)
♦ Unmarried children over 21
♦ Married children of any age
♦ Siblings (if the sponsoring citizen is over the age of 21)
Under U.S. immigration law, a child is defined as a biological child, adopted children if the adoption was completed prior to the child’s 16th birthday , and step-children if the marriage to the child’s biological parent took place prior to the child’s 18th birthday.
Married children and siblings of U.S. citizens who are being sponsored for lawful permanent residency may also apply for their spouses and unmarried children when applying for lawful permanent residency.
Lawful permanent residents may only sponsor the following family members:
♦ Unmarried children under 21
♦ Unmarried children over 21
Married children of lawful permanent residents do not qualify for residency through their lawful permanent resident parent. If a child of a lawful permanent resident who has filed a petition on their behalf gets married, the petition will be revoked. If a child of a lawful permanent resident is considering marriage, the petitioning parent should become a U.S. citizen prior to the marriage. If the parent becomes a U.S. citizen before the child’s marriage, the petition will remain valid despite the marriage of the sponsored child.
What is the Process for Sponsoring a Family Member?
Step 1: I-130 Petition for Alien Relative
In order to begin the process of sponsoring a family member for lawful permanent residency, the petitioning U.S. citizen or Lawful Permanent Resident family member must first file an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services. The purpose of the I-130 petition is to establish the relationship between the petitioning U.S. citizen or lawful permanent resident and the foreign national the petitioner is seeking to sponsor. Proof of the relationship between the petitioner and the sponsored immigrant must be filed with the I-130 petition. A lawful permanent resident may file a single petition for his or her spouse and unmarried children under 21 years of age, but a U.S citizen must file separate petitions for his or her spouse and each unmarried child under the age of 21.
Step 2: Applying for Lawful Permanent Residency
The process by which a family member obtains lawful permanent residency depends on whether the petitioner is a U.S. citizen or lawful permanent resident, the relationship between the petitioner and the sponsored family member, whether the family member is present in the United States at the time of filing, if present in the United States, whether the family member entered the United States lawfully, and his or her current immigration status in the United States at the time of filing. There are two ways in which a family member with an approved I-130 petition may file for residency: adjustment of status, which is the process of applying for residency while in the United States through the U.S. Citizenship and Immigration Services, and consular processing, which is the process of applying for residency at a U.S. consulate or embassy in another country through the U.S. Department of State.
Spouses, parents, and unmarried children under 21 years of age, also known as immediate relatives, of U.S. citizens are immediately eligible to apply for permanent residency when the I-130 petition is filed. All other qualifying family members must wait until a U.S. immigrant visa becomes available to them.
a. Adjustment of Status
Only certain beneficiaries of an approved I-130 are eligible to apply for adjustment of status to lawful permanent residency. In order to apply for adjustment of status, the sponsored family members must file an I-485 application for adjustment of status with the U.S. Citizenship and Immigration Services. Immediate relatives of U.S. citizens who last entered the United States lawfully and any other qualifying relatives who, at the time of applying, are present in the U.S. pursuant to an unexpired period of authorized stay and who have not worked without authorization, are eligible to apply for adjustment of status to lawful permanent residency. In addition, other family members may be eligible for adjustment of status if a petition was filed for them on or before April 30, 2001.
b. Consular Processing
If a family member present in the United States does not qualify for adjustment of status or is currently residing outside of the United States, he or she will obtain his or her permanent residency by applying at a U.S. consulate or embassy usually in his or her home country.
c. Affidavit of Support
Every applicant for lawful permanent residency, whether through adjustment of status or consular processing, is required to submit an I-864 Affidavit of Support, completed and signed by the sponsoring family member, to demonstrate that he or she is not likely to become dependent on the U.S. government. The sponsoring family member will need to provide information about his or her income, including copies of his or her tax returns, with the Affidavit of Support. If the sponsoring family member does not have sufficient income to meet the Affidavit of Support income requirements, a joint sponsorship will be required.
K-1 Fiancé Visa
A K-1 visa is a visa that allows foreign nationals who are engaged to a U.S. citizen to come to the United States to marry his or her U.S. citizen fiancé. The K-1 visa is not available to fiancés of lawful permanent residents. In order to qualify for a K-1 visa, both parties must be free to marry, meaning that any prior marriages must be legally terminated prior to submission of the petition and that the parties are legally old enough to enter into a marriage. In addition, the U.S. citizen and his or her fiancé must have physically met within the last two years. There is a limited exception to this requirement in cases of extreme hardship such as a serious illness that prevented travel. The first step in filing for a K-1 visa is the submission by the U.S. citizen of an I-129F petition with the United States Citizenship and Immigration Services. The U.S. citizen will need to submit documentation of the validity of the relationship with the fiancé in support of the I-129F petition.
Upon approval of the I-129F petition, the foreign national fiancé must then apply for the actual visa at the U.S. embassy or consulate in his or her home country. Any unmarried children under the age of 21 of the foreign national fiancé may also apply for a visa to enter the United States with his or her parent. As part of the visa application process, the foreign national fiancé and any derivative children must have a medical examination and must submit financial documentation from the U.S. citizen fiancé demonstrating that the foreign national fiancé and any children are not likely to become dependent on the U.S. government.
The K-1 visa will only be valid for a period of 90 days from the date of entry into the United States, and the foreign national must marry the U.S. citizen within those 90 days. If the foreign national fails to get married to the petitioner within those 90 days, he or she may be subject to removal from the United States. Once married, the foreign national may then submit an I-485 application for adjustment of status to lawful permanent residency.
An applicant for lawful permanent residency based upon marriage to a U.S. citizen who has been married to his or her petitioning spouse for less than two years at the time of approval of the permanent residency application will initially receive what is known as conditional permanent residency. Conditional permanent residents have all of the same rights as a lawful permanent resident. They can work, travel, and sponsor qualifying family members for residency. However, their initial resident card will only be valid for a period of two years.
In the 90 day period prior to the expiration of the conditional residency, the foreign national will need to file another petition to remove the conditions of residency, known as an I-751 petition. If the conditional resident fails to file the I-751 petition within this 90 day period, his or her permanent residency will be terminated. Generally, the I-751 petition must be filed jointly with the petitioning spouse.
Are there any exceptions to the requirement that the I-751 petition be filed jointing with the U.S. citizen spouse? Yes, a conditional resident may request a waiver of the joint filing requirement in the following circumstances:
1. The marriage was bona fide, but the foreign national was abused or subjected to extreme mental cruelty by his or her U.S. citizen spouse;
2. The marriage was bona fide, but ended in divorce; or
3. The marriage was bona fide, the conditional resident cannot submit a jointly-filed petition, and a denial of the petition would result in extreme hardship.
An I-751 petition filed on the basis of one of these waivers may be filed at any time even after the conditional residency has expired.
The applicant must submit documentation with the petition to show that the marriage is bona fide such as proof of children born of the marriage, a joint residence, joint bank accounts, joint purchases, and joint bills. Upon approval of the I-751 petition, the applicant will be issued a new “green card” valid for ten years.