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Family based permanent residence is a two step process. Initially the US government must classify the intending immigrant as a person who is qualified to immigrate or become a permanent resident (green card holder). This preliminary step is one in which the alien must be found qualified within one of the family preference groups. Once the petition has been approved classifying the family member in a family preference category, the beneficiary of that petition may apply for permanent residence status. This application is either made at a U.S. consulate outside of the US or it can be made in the US to "adjust status" to that of a permanent resident.
The following family-based classifications are groups that are eligible for permanent residence:
The highest preference for family-based immigrants is for immediate relatives of U.S. citizens. There is no numerical limitation on the number of immediate relatives of citizens who may become permanent residents in any one year. This means that there is never a waiting period before an immediate relative can either process the immigrant visa at the consulate or adjust his or her status to permanent residence in the US.
The following persons can qualify as immediate relatives of US citizens:
- spouses of US citizens
No numerical limitation; Category Symbol: IR1
A person who is married to a US citizen qualifies for immigration in this category.
- The marriage must be legal:
- both parties must be free to marry (all prior marriages having ended);
- marriage must be recognized by the jurisdiction where celebrated.
- It must not be a sham marriage.
- The parties cannot be divorced or legally separated.
- children of US citizens
No numerical limitation; Category Symbol: IR3
Children of U.S. citizens are also eligible to immigrate.
- The citizen's child must be unmarried and under the age of 21 years.
- Children born in wedlock automatically qualify.
- Children born out of wedlock to citizen mothers also qualify.
- Children born out of wedlock to a citizen father qualifies if:
- the child was legitimated prior to the age of eighteen and
- the child is in the "legal custody" of the citizen-father, or
- the citizen-father has or had a bona fide parent child relationship with the child.
- Adopted children may also qualify if the adoption was finalized prior to the child's 16th birthday.
- Stepchildren may qualify if the step relationship was established before the child's 18th birthday.
- parents of adult US citizens
No numerical limitation; Category Symbol: IR6
Parents of U.S. citizens are eligible to immigrate as immediate relatives, but only if the citizen is 21 years of age or older.
- The citizen must qualify as a child of the parent, except that the citizen must be over the age of 21 and can be married.
- Parent automatically qualifies if child was born in wedlock.
- Mother qualifies if child was born out of wedlock.
- Father qualifies if child was born out of wedlock if:
- the child was legitimated prior to the age of eighteen and
- the child was in the "legal custody" of the father, or
- the father had a bona fide parent child relationship with the child.
- Adoptive parents qualify if the adoption was finalized prior to the child's 16th birthday.
- Step-parents may qualify if the step relationship was established before the child's 18th birthday.
Immediate relatives of U.S. citizens (spouses, minor children, parents) are not subject to an annual limitation as with other family-sponsored immigrants. An immigrant visa is immediately available to these beneficiaries. In practical terms, due to processing delays, it may take up to a year for these family members to enter the US. The new K-3 and K-4 visas are designed to permit immediate relatives of US citizens to enter the US while the process of their immigrant visas are pending.
The following persons can qualify as other close family members of U.S. citizens:
Other groups of family members of citizens can qualify to immigrate to the United States. These aliens are subject to a numerically limited number of immigrant visas available to them each year. Because only a limited number of these visas are issued every year, they are divided into "preference" categories. These preference categories rank the relationships in order of preference. More visas are issued for categories that have a greater preference thus making them available sooner than those categories that have less preference.
The preference categories are ranked in the following order:
- unmarried sons and daughters of citizens
Family - First Preference 23,400 visas/year; Category Symbol: F1
The first family-sponsored preference is set aside for unmarried sons and daughters of U.S. citizens. This group does not qualify as immediate relatives because the sons and daughters are 21 years of age or older.
- The sons and daughters must have qualified as "children" of the citizens when they were under 21.
- The immediate family members of first preference immigrants can immigrate with them.
- married sons and daughters of citizens
Family - Third Preference 23,400 visas/year; Category Symbol: F3
The third family-sponsored preference is set aside for married sons and daughters of U.S. citizens.
- To qualify in this group, the person must have qualified as child at one time.
- brothers and sisters of citizens
Family - Fourth Preference 65,000 visas/year; Category Symbol: F4
The fourth family-sponsored preference includes the brothers and sisters of US citizens, provided the citizen is at least twenty-one years old.
- Brothers and sisters of citizens can qualify for immigration if the citizen is 21 years of age or older.
- To qualify as a brother or sister, both the brother or sister and the citizen must have been "children" of the same parent.
- Immediate family members of brothers and sisters (spouses and children) can immigrate with the brother or sister.
The following persons can qualify as spouses and unmarried sons and daughters of permanent residents:
The second family-sponsored preference is set aside for two groups: the first includes the spouses and minor children of a lawful permanent resident ("LPR"). The second group includes the unmarried sons and daughters of a LPR who are over the age of 21.
The new V nonimmigrant visa is for certain spouses and children of permanent residents with pending permanent residence papers. Under current law, spouses and minor children of legal permanent residents (F2A) can expect to wait at least four years to complete the green card process. In the case of certain nationalities, the wait is longer. This provision provides for family unification while immigration processing is completed, either through adjustment of status or consular processing.
Related links:
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A child's age is now protected for purposes of qualifying for an immigrant visa. The
analysis and calculations
must be done very precisely by counting days rather than months or years.
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See information on
adoptions
as it relates to family immigration
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