Family Immigration

Spouse, Parents, Sons, Daughters, and Siblings

U.S. immigration laws have traditionally favored family reunification. Under the Immigration and Nationality Act (INA), family relationships involving spouses, children, parents, sons and daughters, and siblings provide a basis for conveying immigration benefits.

The INA creates two broad categories for family members: immediate relatives and family-based preference categories.

Immediate Relative Category

• Spouses: A U.S. citizen petitioning for his or her spouse as an immediate relative must have entered into a legally valid and bona fide marriage with that spouse.
• Parents: For a U.S. citizen to petition for a parent as an immediate relative, the petitioning citizen-child must be over the age of 21, but can be married or unmarried. U.S. citizens who are under the age of 21 cannot petition for their parents under any circumstances.
• Children: U.S. citizens may petition for their children. However, to qualify as an immediate relative, the child must be under the age of 21 and unmarried. The U.S. citizenship of a parent does not confer automatic U.S. citizenship to an adopted or natural foreign-born child unless certain, specific criteria are met.

Procedurally, the immediate-relative category has advantages over the preference categories. There are no numerical limitations on the number of immediate relatives who might emigrate from any country. Further, if they entered the United States legally, "immediate relatives" are exempt from certain "bars," such as unauthorized employment, overstaying their time of admission, or violating their specific nonimmigrant status.

On the other hand, spouse and children of immediate-relative immigrants - unlike those of preference alien - do not obtain "derivative" status. In other words, if a person immigrates as an immediate-relative parent of a U.S. citizen, that person's spouse or minor children would not also automatically qualify for immigration visas, whereas a spouse or minor child of a preference alien would automatically qualify.

The Family-Based Preference Categories

• Family One - unmarried sons and daughters of U.S. citizens. The son or daughter must be unmarried at the time the petition is filed and continue to be unmarried at the time of entry into the United States or, if already in the United States, at the time of adjustment to "lawful permanent resident" (Green Card) status. Where an immediate-relative petition has been approved for a "child" and the child reaches the age of 21, the petition is automatically converted to Family One. Where there is an approved Family One petition and the son or daughter marries, the petition is automatically converted to Family Three. The Family One waiting period is over six years for Mexico, over 12 years for the Philippines, and over 1½ years for most other countries.
• Family Two - spouse and unmarried sons and daughters of permanent residents. This preference category is divided into two subgroups: Family 2A - Spouses and children under the age of 21; and Family 2B - Unmarried children over the age of 21. (Married children of permanent residents do not qualify for any immigration benefits.) For all countries, there are long delays in the Family 2A category and even longer delays in the Family 2B category. The Family 2A waiting period is over four years for all countries; in Mexico, the delay is six years. The Family 2B wait is about seven years for all countries except Mexico, where the waiting period is about nine years.
• Family Three - married sons and daughters of U.S. citizens. For all countries except Mexico and the Philippines, the waiting period is slightly over four years. For Mexico and, especially, the Philippines, the time interval is substantially longer.
• Family Four - brothers and sister of U.S. citizens. This category has tremendous delays - over 10 years - for all countries. The waiting period for the Philippines is over 20 years.

Conditional Permanent Residence for Spouse

Where a party obtains an immigrant visa or lawful permanent residence based upon marriage as either an immediate relative or a Family 2A beneficiary, and where the marriage is less than two years old, that individual is granted "conditional permanent resident" status. This "conditional status" lasts for two years from the date that the person becomes a lawful resident, not two years from the original marriage date.

The person must petition to remove this status. If the parties are still married, they can jointly petition to remove this "conditional status" any time between the 21st and 24th monthly anniversary of the grant of "conditional status." If a joint petition cannot be filed, the "conditional resident" can file a waiver where: (1) the spouse is deceased; (2) the marriage was entered into in good faith but terminated through divorce or annulment; (3) the marriage was entered in good faith but the person was the victim of battering or extreme cruelty; or (4) the termination of the status and removal (deportation) would result in extreme hardship. This petition can be filed at any time.

Children who obtain status as either a "child" or "step-child" based upon marriage of less than two years are also "conditional residents" and must file to have their "conditional status" removed. Where the parent is also a "conditional resident," the parent can include the child in his or her application.

Affidavit of Support

A legally enforceable Affidavit of Support (Form I-864) must be completed by U.S. citizens and lawful permanent residents who sponsor family members as immigrants. The law requires the sponsor to demonstrate an income level at or above 125 percent of the federal poverty line, as published annually by the Department of Health and Human Services.

If the sponsor's household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsor's ability to support the immigrant.

If the sponsor cannot meet the requited income level based on income and assets, another person may serve as a joint sponsor. The joint sponsor must meet all sponsorship requirements, other than being the petitioner, and be willing to assume financial liability for the sponsored immigrant(s) with the petitioning relative.

From AILA: American Immigration Lawyers Association.