Family-Based Immigrant Petition
Lawful permanent residents (whether through marriage or through employment) and U.S. citizens are able to petition for certain family members to become lawful permanent residents. The amount of time it would take for the sponsored family member(s) to actually obtain their lawful permanent resident status is dependent upon the familial relationship between the petitioner (either a lawful permanent resident or a U.S. citizen) and the sponsored family member(s). Different familial relationships fall under different family-based preference categories which may be subject to priority date backlogs. Other family members, classifiable as Immediate Relatives, are not subject to the family-preference categories and are not subject to any priority date backlogs.
Applicable Familial Relationships
A U.S. Citizen petitioner may petition for the following relatives:
§ Husband or Wife (See Green Card Through Marriage)
§ Unmarried Child under age 21 (See I-130 – Immediate Relative)
§ Mother or Father (See I-130 – Immediate Relative)
§ Unmarried son or daughter age 21 or older
§ Married son or daughter of any age
§ Brother(s) or Sister(s)
(See 8 CFR §204.2; INA §203)
A Lawful Permanent Resident may only petition for the following relatives:
§ Husband or Wife
§ Unmarried Child under age 21
§ Unmarried son or daughter age 21 or older
Neither type of petitioner may petition for grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, or in-laws.
Filing a Family-Based Immigrant Petition
For a U.S. Citizen (USC) or Lawful Permanent Resident (LPR) to petition for a family member, they must initiate a two-stage process for their family member(s): Stage 1 – I-130 Filing; Stage 2 – Adjustment of Status or Immigrant Visa Processing, (dependent on various factors).
The first stage requires that the USC/LPR petitioner submit a comprehensive package to USCIS emphasizing the legitimacy of the familial relationship. The main form that the U.S. Citizen or Lawful Permanent Resident (Petitioner) must file for their foreign national family member (Beneficiary) is: Form I-130 – Petition for Alien Relative. The purpose of the form is to establish the legitimacy of the familial relationship. It is, therefore, imperative to submit evidence of the bona fides of the relationship such as birth certificates, marriage certificates, proof of termination of previous marriages, etc. The submission should also include documentary evidence of the Petitioner’s status as a U.S. citizen or Lawful Permanent Resident. See 8 CFR §204.1(f); §204.1(g)
Depending on the USC/LPR’s location, the form is either filed with USCIS in the U.S. or at an overseas location. If the USC/LPR is a resident of the U.S. or is temporarily abroad, the form must be filed with the appropriate USCIS Service Center in the U.S. However, if the USC/LPR is overseas, they may be able to file the form with either a USCIS International Office or a U.S. Consulate, as appropriate.
After Filing a Family-Based Immigrant Petition
After all of the paperwork is filed, the Petitioner will receive a Receipt Notice within 2-3 weeks of filing. The Receipt Notice will assign the foreign national an Alien # (if they do not have one already), as well as a Priority Date and which family-based preference category they are subject to. The Receipt Notice is also important for following up with USCIS in the future on this matter and checking the case status online.
Request for Evidence
If USCIS determines that the information/documentation submitted is inadequate to satisfy the petition requirements and further information is needed, they will issue a Request for Evidence (RFE). The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time). Failing to respond to the RFE may result in the denial of the petition.
Depending on processing times, (assuming no RFE was issued), if the statutory requirements were met and the familial relationship established, USCIS should issue a favorable decision within 4 to 6 months.
After Approval of a Family-Based Immigrant Petition
Once the I-130 is approved, the Petitioner and Beneficiary should monitor the Visa Bulletin released monthly by the U.S. Department of State. When the assigned Priority Date becomes current, the Beneficiary may proceed to the second stage of the green card process. Please note that for certain categories, this wait could be for several years.
If the Beneficiary is residing in the U.S., and meets certain statutory requirements, they may be able to apply for Adjustment of Status.
If the Beneficiary resides abroad, and meet certain statutory requirements, they may be able to pursue Immigrant Visa Processing (IVP).
8 CFR §204.1-§204.13; §204.2
USCIS Adjudicator’s Field Manual Ch. 21
Revised by Nisha V. Fontaine, Esq. on January 2, 2012