+ Petition for an Alien Relative

The petitioner fills out, signs, and submits the petition on the prescribed form, also known as the “I-130,” together with the government filing fee, and evidence that shows the required relationship exists at the time of filing.

Once the petition is approved, a “Priority Date” is established for the relative. This Priority Date is the relative’s number in the queue maintained by the government in determining whether too many or too few immigrants have already gotten their visas in any given year, based on quotas fixed by law. Visas are issued on a “first-come, first-served” basis. The government “calls” the numbers every month via a “Visa Bulletin” published online.

It is only when the relative’s “number” or Priority Date is “called” can they apply for the immigrant visa that will allow them to enter the U.S. as a permanent resident, or if they are already in the U.S. under a valid visa, apply for a change or “Adjustment of Status” into a permanent resident.

However, regardless of the Priority Date, a U.S. citizen’s spouse, parent, or child below 21 can apply for a immigrant visa or adjust status as soon as the relative petition is approved, because the visa category for these relatives is not limited by a quota.

The family relationships allowed to be petitioned are the following:

• Spouse of a U.S. citizen
• Spouse of a permanent resident

The spousal relationship must be recognized by a judicial authority in the jurisdiction (country, U.S. state, independent territory, etc.) where the marriage was celebrated – that is, if a jurisdiction recognizes same-sex marriages for example, and a petitioner and spouse got married there, then their marriage will be considered as valid for purposes of immigration. If it is a foreign marriage, then it must not be contrary to the public policy and moral norms of the community where the couple intends to reside in. Marriages celebrated in any U.S. state or territory are also recognized.

Then finally, depending on the length of the marriage and other circumstances, the couple must prove that a bona fide or “good faith” marriage exists; that is, the couple must show that at the inception of the marriage, that they intended to form a life together.

• Parent of a U.S. citizen
• Unmarried child of a U.S. citizen
• Unmarried child of a permanent resident

A parent-child relationship must generally be a biological relationship, in order to be recognized under U.S. immigration law. The only exceptions are certain adoptive relationships, and step- relationships.

Step-parent and step-child relationships are recognized only if the step-parent married the child’s biological parent before the child turned 18 years of age.

Adoptive relationships are recognized only if the adoption was completed before the child turned 16 years of age, and was also recognized by a judicial authority in the place where the child resides, and the adoptive parent or parents had legal and physical custody of the child for at least 2 years prior to filing the petition. If these conditions are not met, then the adoption does not create the parent-child relationship that is recognized by U.S. immigration law.

Furthermore, additional burden of proof is placed on father-child relationships that are out-of-wedlock or illegitimate.

“Child” is simply the law’s term for a child 21 years or below. The law gives priority to children of a certain age to immigrate to the U.S., as they are more likely to be dependent on their parents for support.

When a child reaches 21 years of age and above, the term used is either “son” or “daughter,” as explained below.

• Unmarried son or daughter of a U.S. citizen
• Unmarried son or daughter of a permanent resident
• Married son or daughter of a U.S. citizen

“Son” or “Daughter” is simply a child 21 years of age and above. Because of their age and presumed ability to be independent from their parents, sons and daughters are given a lower priority by the U.S. government in handing out immigrant visas.

When a child gets married, regardless of age, the government presumes that they are no longer under the parents’ custody but now rather as having a family unit of their own. Therefore, married sons and daughters are placed in a different category.

Sibling of a U.S. citizen

Siblings must have at least one common biological parent. This means that half siblings are also included in the definition under U.S. law.

+ Immigrant Visa Application / Adjustment of Status Application

The final step in the family-based immigration process depends on the location of the relative, and the kind of relationship that exists between the relative and the petitioner.

Generally, for all relatives located outside of the U.S., they must apply for an “immigrant visa” at a U.S. Embassy or Consulate that has jurisdiction over the place of their residence. This visa will allow them to travel to the U.S. as an immigrant.

If they are present in the U.S. under a valid visa (certain exceptions apply), then they must apply to adjust their status to a permanent resident with the U.S. Citizenship and Immigration Services or USCIS. An Adjustment of Status application is commonly filed together with an application for Employment Authorization or a temporary “work permit.”

In both methods but with slight variations between the two, the relative must fill out, sign, and submit the application forms, together with the government filing fee, and evidence that shows that they meet the legal requirements for eligibility to become a permanent resident. A medical examination is also required, to show that the relative does not have a physical or mental condition that may pose a threat to the health and safety of others, which includes alcohol or substance abuse.

Finally, in both methods, an “Affidavit of Support” from the petitioner and up to two joint sponsors is required, to show that the relative will not likely be a public charge, or a person dependent primarily on public aid for support.

For certain visa categories, the relative may include their spouse and children below 21 years of age in the application process. These “derivative” applicants, if they meet the requirements in their own right, will also receive the same kind of permanent resident status as the principal applicant.

+ “One-Step” Applications

If an immigrant visa number is currently available for the relative at the time of filing the Adjustment of Status application, then USCIS will authorize the concurrent or “one-step” filing of the Petition for Alien Relative and the Adjustment of Status Application.

This is the most common scenario for spouses, parents, and children below 21 of U.S. citizens who are present in the U.S.

This is also allowed for certain spouses and children below 21 of permanent residents, depending on the availability of immigrant visas for this category.

+ Removal of Conditions on Permanent Residence, Without Waiver

For certain spouses of U.S. citizens or permanent residents, or those who entered the U.S. via a fiancée visa and after having married their petitioner, as well as their derivative children, if these relatives obtained their permanent residence prior to the second anniversary of the marriage to their petitioner, then USCIS will classify them as “Conditional Permanent Residents,” or permanent residency that will terminate in two (2) years from issuance.

This means that before the two (2) years are up (as early as 90 days before the expiration), both the relative and the petitioner are required to jointly file a Petition to Remove Conditions on Permanent Residence with USCIS, to show that they have maintained the good faith nature of their marriage.

Failure to file this petition within the 2-year period will result in termination of permanent resident status for the relative and will subject them to deportation.

Certain exceptions to this rule are discussed in the next section.

After USCIS approves the petition to remove conditions, the relative will now be considered as a permanent resident without conditions and may apply to become a U.S. citizen via naturalization.

+ Removal of Conditions on Permanent Residence, With Waiver

As discussed above, certain relatives may file the Petition to Remove Conditions on Permanent Residence on their own, and without the signature or further involvement of their petitioner, in the following instances:

• The marriage was entered into in good faith, but it was terminated through divorce, and without fault by the relative
• The relative (or their child) was subjected to battery or extreme cruelty perpetrated by the petitioner during the marriage
• The relative unknowingly entered into a bigamous marriage with the petitioner

The relative (or their child) will suffer extreme hardship due to causes that arose during the 2-year period, if the conditions on their permanent residence are not removed

This kind of petition with waiver otherwise works just like a normal Petition to Remove Conditions on Permanent Residence but will almost always trigger an interview by the USCIS Field Office where the relative resides. When this petition is approved, the relative becomes an ordinary permanent resident without the conditions attached.

+ Special Petitions

Two main categories of persons may file an immigrant petition for themselves without the need for a U.S. citizen or permanent resident petitioner, these are:

• Widows or Widowers of a U.S. citizen
• Spouse or Child subjected to battery or extreme cruelty by a U.S citizen or permanent resident spouse or parent

For widow/ers, the special petition must be filed within two (2) years of the U.S. citizen spouse’s death.

For battered spouses, the special petition may be filed anytime after the battery or abuse occurred, but it must have occurred during the marriage, the marriage was entered into in good faith, and the battered spouse possesses good moral character. Battered children are subject to less stringent requirements.

In both cases, both a widow/er and a battered spouse must not have remarried to another person before the special petition is approved.

Once the special petition is approved, the widow/er or battered spouse or child may apply for an immigrant visa or adjustment of status as if a visa number is immediately available to them, and without the need for an Affidavit of Support.