Family Immigration

Coming to the U.S. Based on American Family Sponsorships

When we talk about “family-based” immigration, we mean people coming to be reunited with their close family members who live in the US. Close family of US citizens and permanent residents come to the US with immigrant visas commonly known as “green cards” or permanent resident visas. These “immigrant visas” are different from the temporary stay non-immigrant visas. Family sponsored green cards are granted to those with close family relationships to US citizens or permanent residents. Minor, unmarried children (under age 21) and spouses and parents of adult US citizens (where the child is at least 21) are considered to be “immediate relatives” and are outside the US immigration quota system.

For those foreigners who are in this “immediate relative” category, sponsorship by the close US relative and the concurrent personal claim of permanent residence based on that underlying sponsorship, can occur in the US providing the foreign national has entered the US legally. The green card process can be completed from within the US regardless of whether the foreigner is still in lawful immigration status. Work and travel permission are granted as interim benefits while the application is pending.

However, adult children of US citizens, siblings of US citizens and spouse and all children of permanent residents are subject to strict immigration quotas and may have long waits ranging from 3 years to 15+ years before US immigration benefits can be obtained. A place in the quota system is obtained when the US relative files a petition with the USCIS in the US. The filing of the petition alone simply preserves a place in the visa queue and does not, in and of itself, grant any benefit. The benefit of actually immigrating to the US granted only when the applicant’s place in the quota system reaches the front of the queue. No benefits are granted and no legal status given simply because one is waiting in the queue.

It is fairly simple for the US relative to file the petition to establish a place in the quota by establishing the bona fide family relationship with appropriate documentation. Almost all US relatives seeking to bring their relatives to the US must be able to show sufficient funds to avoid having the foreign relative seek welfare benefits. The US relative must also be domiciled in the US since the purpose of applying for one’s foreign relative is family reunification. Processing times may vary and will depend largely on the category in which the foreign relative qualifies. Normally, those foreigners seeking green cards to join relatives, should expect to wait about 6-8 months for the approval of the US relative’s petition and an additional 6-9 months for processing it the US Consulate once the place in the visa queue has been reached.

For those people engaged to marry US citizens, the K-1 visa is the correct non-immigrant visa. Permanent residents may not sponsor their fiancé(e)s. The regulations require that the couple have physically met within the past 2 years, that there be no legal impediment to marriage, and that the foreign national and the U.S. citizen have a firm intent to marry within 90 days after the foreigner enters the U.S. Warning: the marriage must occur within the 90 day period or the foreign national may not be allowed to remain in the United States. Also, if the marriage and/or the subsequent permanent residence sponsorship do not occur, then the foreigner will not be able to obtain the coveted green card – even if he or she marries a different American citizen. However, the K-1 visa is rarely used with most Europeans since the ESTA program allows you to come for an extended visit. Later, if you decide to marry in the US, the possibility of staying remains available.

Additionally, people who have actually married a US citizen outside of the US can opt to come on the K-3 visa instead. The K-3 visa process must begin in the US where the US citizen spouse first files an immigrant visa petition to sponsor the foreign spouse for the green card. Once that initial petition is filed with the immigration service, the US citizen then follows this with a K-3 visa petition. The idea is that the K-3 will be processed faster than the green card, but in practice, this is not always the case. The US Consulate will grant whichever is available first; if the green card process has been completed at the Consulate first, the Consul must grant the immigrant visa and not the K-3 visa. All in all, for planning purposes, the couple can expect to be apart for a good 8 to 12 months before the foreign spouse will actually be able to come to the United States. If he or she comes on the K-3 visa, the process to obtain the green card will then be completed inside the US.

Contact Scarlatelli, P.A.