Green Card through Family

Obtaining a Green Card through a Family Member

Perhaps the most common means for someone to obtain a green card is through sponsorship by a qualifying family member who is either a U.S. citizen or a lawful permanent resident. There are only certain familial relationships through which someone may qualify to receive their permanent residency.

U.S. citizens may petition for the following family members:

  • Spouse
  • Unmarried children under 21
  • Parents (if the sponsoring citizen is over the age of 21
  • Unmarried children over 21
  • Married children of any age
  • Siblings (if the sponsoring citizen is over the age of 21)

For those married children or siblings of U.S. citizens being sponsored for lawful permanent residency, spouses and unmarried children under 21 may also apply.

  • Lawful permanent residents may petition for the following family members:
  • Spouse
  • Unmarried children under 21
  • Unmarried children over 21

PLEASE NOTE: Married children of Lawful Permanent Residents do not qualify for residency through their LPR parent. If a child of a lawful permanent resident who has filed a petition on their behalf gets married, the child no longer qualifies for lawful permanent residence through the LPR parent.

Application Process

The process for filing for a family member varies depending on the relationship between the sponsoring family member and the foreign national relative, whether the foreign national relative is in or outside of the United States, and if present in the United States, the manner in which the foreign national relative entered the United States.

Step 1: I-130 Petition for Alien Relative

In order to qualify for a green card through a family member, the lawful permanent resident or U.S. citizen relative must first file a Form I-130 petition for the alien relative with the USCIS.

When filing the Form I-130, proof of the relationship between the U.S. citizen or lawful permanent resident sponsor and the alien relative must be submitted with the petition.

The purpose of the I-130 petition is to establish the relationship between the U.S. citizen or lawful permanent resident sponsor and the foreign national relative who wishes to immigrate. It does not confer any legal status or work authorization on the beneficiary of the I-130.

An immediate relative (i.e. spouse, unmarried child, or parent) of a U.S. citizen, immediately qualifies to apply for a green card when the I-130 petition is filed on his/her behalf. Those who are not an immediate relative of a U.S. citizen, must wait until a visa number becomes available before applying for a green card.

In most cases, it may be several years after the filing the Form I-130 before a visa number becomes available. When the Form I-130 is filed, this puts the beneficiary in line for a visa number. The length of time it takes for a visa to become available depends on the beneficiary’s relationship to the sponsoring U.S. citizen or lawful permanent resident, the country of origin, and how many people in his/her same category file for a green card during a particular period.

The preference categories for family-based cases are as follows:

First: Unmarried Sons and Daughters of Citizens

Second:

A. Spouses and Children of Lawful Permanent Residents

B. Unmarried Sons and Daughters (21 years of age or older of Lawful Permanent Residents

Third: Married Sons and Daughters of Citizens

Fourth: Brothers and Sisters of Adult Citizens

The date on which the Form I-130 petition was properly filed is called a “priority date”. Individuals can locate their preference category by viewing the family-based chart located at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

If a priority date falls before the date listed on the Visa Bulletin, then the Adjustment of Status application can be filed. If the priority date is current, we encourage individuals to file the Adjustment of Status application because priority dates may retrogress or become unavailable in the following months.

If currently eligible to apply for a green card, there are two (2) possible ways to do so:

Step 2: Filing for the “Green Card” or Application to Adjust Status

Those present in the U.S., may apply for a green card through a process known as adjustment of status. In order to apply for adjustment of status, the Form I-485 Application for Adjustment of Status to Lawful Permanent Residency must be filed with the USCIS. However, only certain foreign national relatives qualify for adjustment of status.

Immediate Relatives

Immediate relatives of U.S. citizens who entered the U.S. in a lawful manner, may file the Form I-485, Application to Adjust Status concurrently with the Form I-130 petition. In addition, they may also obtain a work permit while their application for permanent residency is pending.

Foreign national relatives eligible under INA §245(i)

Those who are not an immediate relative of a U.S. citizen or entered the United States without inspection by an immigration officer, may still qualify to adjust status in the U.S. if they are the beneficiary of a Form I-130 petition (or other immigrant petition or labor certification) that was filed on their behalf before April 30, 2001.

If the Form I-130 petition (or other immigrant petition or labor certification) was filed between January 14, 1998, and April 30, 2001, an individual must provide proof that they were physically present in the United States on December 21, 2000.

If the Form I-130 petition (or other immigrant petition or labor certification) was filed before January 14, 1998, such proof of presence in the U.S. on December 21, 2000 is not required. When the Form I-485 is filed, an additional fee of $1000 will be required.

Once the Form I-485 application is filed with the USCIS, the applicant will be scheduled for a biometrics appointment. At the biometric appointment, the applicant will be required to submit fingerprints and a photograph. Attendance at a biometric appointment is required. Upon completion of the biometrics appointments, the applicant will then be scheduled for an interview at the local USCIS office. The sponsoring relative will be required to attend the interview also.

Consular Processing

Individuals not currently in the U.S. or who do not qualify to adjust status in the U.S. will need to apply for the green card through the U.S. embassy or consulate in their home country. This process is known as consular processing.

If required to consular process, once the Form I-130 petition is approved, it will be transferred to the National Visa Center to continue processing the case.

The National Visa Center sends the applicant a fee bill and the immigrant visa application, known as the DS-230 Parts I and II, when a visa number is about to become available. The National Visa Center handles preliminary processing of the application and transfers the application to the U.S. embassy or consulate in the applicant’s home country when the applicant is scheduled for an interview. The sponsoring relative is not required to attend the interview at the consulate or embassy.

WARNING: Individuals present in the United States for six (6) months or more without legal status, who leave to attend an interview in their home country, will most likely trigger a bar to returning to the United States of up to 10 years. Individuals to whom this may apply can contact our office to determine eligibility for a waiver that would allow a faster return to the U.S.

Affidavit of Support

In order to obtain a green card, applicants will be required to demonstrate that they are not likely to become dependent on the government for financial support. When applying for a green card, sponsoring relatives will be required to complete a form and provide supporting documents to show that they have sufficient income to support those they are sponsoring. The amount of income they are required to make depends on the number of people in their household. If they do not have sufficient income, a joint sponsor who does have sufficient income will be required. To determine the amount a sponsoring relative should make, please see the attached chart: http://www.uscis.gov/files/form/I-864P.pdf

Conditional Permanent Residency

If an individual has been married to a U.S citizen for less than two (2) years at the time of the green card interview, the applicant will be granted Conditional Permanent Resident (CPR) status. This status is valid for two (2) years. The U.S. citizen and the CPR spouse must file a joint petition to remove the conditional nature of the CPR status on Form I-751 within the ninety (90) day period immediately preceding the expiration of CPR status. Failure to timely file the application to remove the conditions on residence, will result in termination of status and placement in removal proceedings.

Those now divorced from the sponsoring spouse may apply for a waiver of the joint filing requirement by providing evidence of the bona fides of the marriage. Those not yet divorced, who can meet the joint filing requirement, may also apply for a waiver of the joint filing requirement if they can demonstrate that they have been abused or subjected to extreme mental cruelty by the spouse or show that their removal from the U.S. would result in extreme hardship. Those filing the Form I-751 application with a request for waiver of the joint filing requirement, may file the Form I-751 any time after becoming a conditional permanent resident. For additional information on the specific documentation requirements for obtaining a waiver of the joint filing requirement, please contact our office.

If you are a current client of our law firm and keep us updated with current contact information, we will send you a reminder when it is time to remove the conditions. Please also contact your Attorney or Paralegal Lead at least three (3) months prior to the beginning of that period if you would like us to assist you with the removal of the conditions. If you are not a current client, please contact our office if you would like our assistance with this process.

Please contact our office if you would like additional information on applying for a green card through a relative.