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Family-Based Immigration ranges from bringing to the United States immediate relatives of U.S. citizens (spouse and minor, unmarried children and parents) to “preference” relatives in several categories (unmarried sons and daughters of green card holders and U.S. citizens, married sons and daughters of citizens, and brothers and sisters of U.S. citizens). This is not to be confused with the dependent visa which is coupled to a primary visa. In a dependent visa, a primary visa holder can bring a dependent such as their spouse or child(ren) as an accompanying visa, but the dependent visa is not afforded the same privileges as the primary visa.
Immediate relatives of U.S. citizens are defined as spouses, children, and parents of the U.S. citizen. “Children” are defined as unmarried and under the age of 21. For parents of a U.S. citizen, the petitioning son or daughter must be at least 21 years old.
The definition of “immediate relative” includes widows of U.S. citizens, provided that the foreign national was the spouse of the citizen for at least 2 years prior to the citizen’s death and was not legally separated from the citizen at the time of his/her death. The petition for permanent residence must be filed within 2 years after the citizen’s death and before re-marriage.
Because there are no numerical limits or backlog for sponsorship, it may be advantageous to file for permanent
residency for immediate relatives.
The Four Family preference categories:
- 1st Preference – unmarried sons and daughters (any age) of U.S. citizens,
- 2nd Preference – spouses and unmarried sons and daughters of lawful permanent residents,
- 3rd Preference – married sons and daughters of U.S. citizens,
- 4th Preference – brothers or sisters of U.S. citizens.
Marriages Formed Within the United States
A U.S. citizen and the non-citizen spouse need to prove that the marriage was not entered into for the sole purpose of obtaining a green card. The parties have the burden to prove a real and “bona fide” marriage. The non-citizen spouse should simultaneously file an application for adjustment of status. An interview is scheduled and the EAD, employment card processing can take up to 90 days. Marriage petitions are now submitted to the USCIS Regional Service Center for Maryland Residents and the local USCIS office for other state residents.
Marriages Formed Outside the United States
In general, marriages formed outside the United States are given the full faith and credit as if the marriages were formed and celebrated in the United States. But for immigration purposes, the parties still have the burden of proving a bona fide marriage.
The non-citizen spouse usually must remain in their respective country until they obtain a green card. But, if the parties have yet to be married, a K-1 fiancé/e visa allows the foreign fiancé/e visa to enter the U.S. but is required to get married to the sponsoring U.S. citizen and file the adjustment of status application package for the green card within 90 days of entry.
For marriages that have already taken place abroad, the citizen spouse must submit a visa petition to either the appropriate USCIS office or to the U.S. embassy or consulate in the country where the non-citizen spouse lives. Embassies or consulates may impose various eligibility restrictions on who may file petitions. Approval may take several months depending on the location where the petition was filed.
Upon approval of the visa petition, the non-citizen spouse will receive a packet from the National Visa Center (NVC) containing various documents required at the immigrant visa interview abroad and documents requesting biographic data that need to be submitted to the U.S. embassy or consulate abroad (Process can take an additional three to six months).
Expediting Immigrant Visa Process
The U.S. Citizen can expedite the immigrant visa process by filing a K-3 petition as soon as the visa petition (I-130) has been filed. The NVC will notify the consulate of the K-3 petition approval. It is common for the non-citizen spouse to come the U.S. on the K-3 in approximately half the time it would have taken for the entire immigrant visa process.
For marriages less than two years when the non-citizen spouse becomes a permanent resident, the non-citizen spouse’s green card will expire after two years. Both spouses must submit a joint petition to remove the two year condition within 90 days prior to the end of the two years. If the marriage is terminated by reason of divorce, death of the citizen spouse, or spousal abuse, the non-citizen spouse may apply for a waiver of the joint petition requirement. Under spousal abuse, a non-citizen spouse may become a permanent resident under the Violence Against Women Act.