Family-Based Immigration

Family-based immigration is comprised of various scenarios whereby individuals can obtain immigration status in the United States for qualifying family members who reside in foreign countries. This status permits an immigrant to live and work permanently in the U.S. We offer legal assistance and advice throughout this process.

The Process—An Overview

STEP 1. A question that is routinely asked of immigration attorneys by US citizens and permanent residents is “Can I sponsor my relative?” The first step of this process is to decide if a relative fits into one of the prescribed family categories. Not all family relationships qualify as a basis for which permanent residency (commonly and historically referred to as a “green card”) can be granted. Only some specified family relationships serve as a basis. Immigration law permits only immediate relatives and preference immigrants to have petitions filed on their behalf and to thus serve as “qualifying relatives.”

Immediate Relatives encompasses the following relatives:

--Spouses of US citizens

--Minor unmarried children (must be under 21 years of age) of US citizens

--Parents of US citizens (the citizen must be 21 years of age)

--Spouses of deceased US citizens who were married at least two years at the time of their citizen spouses’ deaths are eligible for immigrant visas. But, it is mandatory that the couple was not legally separated at the time of death, the alien spouse files the petition within two years of the death of the citizen spouse, and the alien spouse does not remarry; this category is covered on this website under “self-petitions”

Preference Immigrants encompasses the following relatives:

--First Preference: Unmarried sons or daughters (meaning over 21 years of age)

--Second Preference: a) Spouses or children (meaning under 21 years of age) of permanent residents; OR b) Unmarried sons or daughters (meaning over 21 years of age) of permanent residents

--Third Preference: Married son or daughters (meaning over 21 years of age) of US citizens

--Fourth Preference: Brothers or sisters of US citizens (note that the US citizen must be 21 years of age or older)

Once it is established that a qualifying relationship exists, the next step is the application process.

STEP 2. The petitioner (i.e. the permanent resident or US citizen, generally) files a petition for alien relative (called an I-130) for the beneficiary (i.e. the relative for whom the petition is being filed). This process confirms that the requisite family relationship exists.

NOTE: Some petitioners—such as widows, widowers, and battered spouses and children—can act as self-petitioners. These petitions are filed on Form I-360. The process for these filing are quite different from a traditional petition filed on behalf of a relative beneficiary. These petitions are covered on this website under “self-petitions.”

The next step concerns whether an individual is eligible to adjust status (i.e. become a permanent resident/get a green card).

STEP 3. In many instances, even if a qualifying family relationship exists, the beneficiary is unable to adjust status to that of a permanent resident. Some beneficiaries, for instance, are unable to adjust status in the United States because they entered the country without inspection—meaning they are unable to amply demonstrate that they were inspected by immigration officials upon arrival in the United States.

To adjust status in the United States based on a petition for alien relative filed by an immediate relative, the beneficiary must demonstrate that he/she entered the United States with inspection. This is demonstrated by showing an I-94 card, which is given to the beneficiary upon arrival in the United States. Even if the I-94 stay has expired, an adjustment based on an immediate relative petition is still permitted.

Additionally, some beneficiaries are “grand-fathered” under former INA Sec. 245(i). If the beneficiary is unable to show proper inspection, yet was the beneficiary of a visa petition or labor certification filed on or before April 30, 2001, he or she is permitted to adjust status in the United States. The beneficiary, however, will be required to remit the $1,000 penalty as part of the filing fees.

If the beneficiary entered legally, but the stay has expired, yet is attempting to adjust status based on a preference petition, usually the adjustment of status in the United States is precluded. In some instances, however, the beneficiary of a preference petition present in the United States can adjust status if the priority date is current on the alien relative petition and the petition was filed on or before April 30, 2001. Once again, however, the beneficiary will be required to remit the $1,000 penalty as part of the filing fees.

STEP 4. Once it is established that a proper qualifying relationship exists and the petition for alien relative is complete, the course of the immigration process must be decided.

If the beneficiary is physically present in the United States, and the beneficiary is eligible to apply for adjustment of status, the petition for alien relative, together with the adjustment of status application package is filed at the beneficiary’s local district office. Normally, an interview of the petitioner and beneficiary is conducted at the local district office.

If the beneficiary is not in the United States, the relative petition is filed at a Service Center. Once the petition is approved, it is sent to the consulate indicated on the I-130 for determination on adjustment of status.

Our Service

At Schoener & Kascavage, we assist you from the beginning of the petition process until the granting of permanent residency.

If the beneficiary is in the United States and is eligible to adjust status, we help you through this arduous process. We begin at a consultation appointment by easily outlining all of the documents, reports, and fees that are needed to prepare and file the application. We prepare the “adjustment package” for you, and we properly file this package ensuring that this process beings promptly. We then follow up the filing of the adjustment of status package by guiding the beneficiary through the process of obtaining his or her EAD (Employment Authorization Document) and Social Security Card. Before the interview happens, we prepare you by conducting a mock interview; we also accompany you to the interview.

If the beneficiary is out of the United States, we assist the petitioner in the preparation of the I-130 (Petition for Alien Relative). After completion, we send the petition to the USCIS (former INS) for processing. After approval, the petition is sent to the consulate indicated on the I-130 for final processing. We guide the petitioner through the “Packet III and IV” stages of consular processing. We make sure that the proper forms and documents are sent to the National Visa Center ensuring a speedy arrival for the immigrant relative.

We look forward to assisting you with your family-based immigration needs.

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