Family-Based Visas

Are you dreaming of bringing your family to live with you in the United States? Family-based visas can help you turn that dream into reality. Below you will find information on different family visa categories, the processes of adjusting status and consular processing, an outline on the required forms and fees, and an explanation of why hiring an attorney for assistance is a smart move. Let’s jump right in and learn how to reunite with your loved ones in the U.S.!

Family Visa Categories: Immediate Relatives vs. Preference Categories

Family based visas are divided into two main categories: Immediate Relative and Preference Categories.

Immediate Relative

These visas are reserved for close family members of U.S. citizens. There is no limit to the number of Immediate Relative visas that can be issued each year. The Immediate Relative category includes:

1. IR-1: Spouse of a U.S. citizen
2. IR-2: Unmarried children under the age of 21 of a U.S. citizen
3. IR-3: Orphan adopted abroad by a U.S. citizen
4. IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
5. IR-5: Parent of a U.S. citizen who is at least 21 years old

Preference Categories

These visas are for more distant relatives of U.S. citizens and for family members of lawful permanent residents (green card holders). Preference categories are subject to annual visa caps, which means there is often a waiting period before the family-based visas can be issued. The Preference Categories include:

1. F1: Unmarried sons and daughters of U.S. citizens and their minor children
2. F2: Spouses, minor children, and unmarried sons and daughters (21 years or older) of lawful permanent residents
3. F3: Married sons and daughters of U.S. citizens, their spouses, and minor children
4. F4: Siblings of U.S. citizens (who are at least 21 years old), their spouses, and minor children

Understanding Conditional Residency

When a foreign spouse of a U.S. citizen obtains a green card through marriage and the marriage is less than two years old at the time the green card is granted, the spouse will receive conditional residency. This means the green card is valid for only two years. Conditional residency is a measure put in place by the U.S. government to help prevent fraudulent marriages and ensure that the marriage was entered into in good faith.

Removing Conditions on Residency

To remove the conditions and obtain a 10-year green card, the couple must file a joint petition (Form I-751) within the 90-day period before the conditional green card expires. In this process, the couple must provide evidence that their marriage is genuine and ongoing. Examples of such evidence include:

1. Joint bank account statements
2. Joint credit card statements
3. Joint tax returns
4. Joint property ownership documents
5. Birth certificates of any children born during the marriage
6. Affidavits from friends or family members attesting to the authenticity of the marriage
7. Photographs and other evidence of shared experiences, such as vacations or family gatherings

Exceptions to the Joint Filing Requirement

In certain situations, a conditional resident may be eligible to file Form I-751 without their U.S. citizen spouse. These exceptions include:

1. Termination of marriage through divorce or annulment: The conditional resident must prove that the marriage was entered into in good faith and not for the purpose of obtaining immigration benefits.
2. Spouse’s death: The conditional resident must provide evidence of the deceased spouse’s U.S. citizenship and that the marriage was entered into in good faith.
3. Battered spouse or child waiver: The conditional resident must provide evidence that they or their child were subjected to battery or extreme cruelty by the U.S. citizen spouse and that the marriage was entered into in good faith.

Filing Process and Potential Outcomes

Upon filing Form I-751, the conditional resident will receive a receipt notice extending their conditional green card for 18 months. This allows them to continue living and working in the U.S. while their petition is being processed. The USCIS may request additional evidence or schedule an interview with the couple to further evaluate the legitimacy of the marriage.

If the joint petition is approved, the conditions on the residency will be removed, and the foreign spouse will receive a 10-year green card. However, if the petition is denied, the conditional resident may be placed in removal proceedings and face the risk of deportation.

The Importance of Timely Filing and Seeking Legal Assistance

It is crucial to file Form I-751 within the required 90-day window before the conditional green card expires. Failure to do so may result in the termination of the conditional resident’s status and initiation of removal proceedings. Engaging the services of an experienced immigration attorney can help ensure that your petition is filed correctly and on time, and that you have the necessary evidence to support your family-based visas.

The Visa Bulletin: Keeping Track of Your Priority Date

Due to annual caps for family-based visas Preference Categories, it’s essential to keep track of your priority date. The priority date is the date when the petition (Form I-130) was filed on your behalf. You can monitor the progress of your priority date using the Visa Bulletin, which is published monthly by the U.S. Department of State. Once your priority date becomes current, you can proceed with the next steps of your family-based visas.

Adjustment of Status vs. Consular Processing

Once your priority date is current, you can apply for a green card through one of two methods: Adjustment of Status or Consular Processing.

Adjustment of Status

Adjustment of Status is the process of applying for a green card while you are physically present in the United States. This can be an adjustment of status based on marriage to a U.S. citizen, through another family member, or even employment. To do this, you must file Form I-485, Application to Register Permanent Residence or Adjust Status, with the U.S. Citizenship and Immigration Services (USCIS). You must also submit supporting documents, such as a copy of the approved I-130 petition, proof of your relationship to the petitioner, and evidence of your lawful entry into the United States.

Consular Processing for Family-Based Visas

Consular Processing is the process of applying for a green card through a U.S. consulate or embassy in your home country. This method is commonly used by applicants for family-based visas who are not currently in the United States. Consular Processing involves several steps that require careful attention to detail and a thorough understanding of the requirements for family-based visas.

Step 1: Petition Approval

The first step in Consular Processing for family-based visas is having the I-130 petition filed by your U.S. citizen or lawful permanent resident relative approved by USCIS. This establishes your eligibility for a family-based visa and sets your priority date, which determines when you can proceed with the next steps of your application.

Step 2: National Visa Center (NVC) Case Creation

Once your I-130 petition is approved and your priority date is current or about to become current, your case will be transferred to the National Visa Center (NVC). The NVC will assign a case number and invoice ID number, which you will use to access your case online and pay the required fees.

Step 3: Payment of Fees

Before you can submit your visa application and supporting documents, you must pay two separate fees for family-based visas: the Affidavit of Support fee and the Immigrant Visa Application Processing fee. You can pay these fees online through the Consular Electronic Application Center (CEAC).

Step 4: Submission of Required Documents

After paying the fees, you must gather and submit the required documents for family-based visas through the CEAC. These documents may include:

1. Form DS-260, Immigrant Visa Application
2. Form I-864, Affidavit of Support
3. Birth certificates, marriage certificates, and other civil documents
4. Police clearance certificates from all countries where the applicant has lived for six months or longer since the age of 16
5. Medical examination results from an approved panel physician
6. Passport-style photographs

It’s essential to submit complete and accurate documentation to avoid delays in processing your family-based visa application.

Step 5: NVC Review and Interview Scheduling

Once you have submitted all required documents for your family-based visa, the NVC will review your case. If everything is in order, the NVC will schedule an interview at a U.S. consulate or embassy in your home country. You will receive an appointment letter with the date, time, and location of your interview.

Step 6: Preparing for the Interview

Before your interview for a family-based visa, you must prepare by gathering the original copies of all the documents you submitted to the NVC, as well as any additional documents requested in your appointment letter. You should also review your DS-260 application and be prepared to answer questions about your relationship with the petitioner, your plans in the United States, and your eligibility for a family-based visa.

Step 7: The Interview

During your family-based visa interview, a consular officer will ask you questions about your application, your relationship with the petitioner, and your plans in the United States. They will also review your documents and verify that you meet all the eligibility requirements for a family-based visa. If the officer determines that you are eligible, they will approve your visa and place an immigrant visa stamp in your passport.

Step 8: Traveling to the United States

With your family-based visa in hand, you can now travel to the United States. Upon arrival, you will go through immigration and customs, where an officer will review your documents and grant you admission as a lawful permanent resident. Within a few weeks, your physical green card will be mailed to the U.S. address you provided during your application process.

Step 9: Maintaining Your Status and Applying for Citizenship

Once you become a lawful permanent resident through a family-based visa, it is essential to maintain your status by adhering to the laws and regulations governing permanent residents. This includes notifying USCIS of any address changes, renewing your green card when it expires, and filing income taxes as a resident.

After residing in the United States for the required period (usually five years, or three years if married to a U.S. citizen), you may be eligible to apply for U.S. citizenship through naturalization. Becoming a U.S. citizen provides additional rights and benefits, such as the ability to vote, run for public office, and apply for a U.S. passport.

Forms and Fees

The following forms and fees are commonly associated with family-based visas:

1. Form I-130, Petition for Alien Relative: This form is filed by the U.S. citizen or lawful permanent resident petitioner on behalf of the foreign relative. The filing fee for Form I-130 is $535.
2. Form I-485, Application to Register Permanent Residence or Adjust Status: This form is filed by the foreign relative if they are adjusting their status in the United States. The filing fee for Form I-485 varies based on age and other factors, but the standard fee is $1,225 (including the biometrics fee).

Why Hiring an Attorney for Assistance is a Smart Move

Family based visas can be complex and time-consuming. Hiring an experienced immigration attorney can significantly improve your chances of success. Here are a few reasons why seeking legal assistance is a wise decision:

1. Navigating the complexities: An attorney can help you understand the different family-based visas and guide you through the entire process, ensuring that all requirements are met and that your case is well-prepared.
2. Expertise in assembling documentation: An attorney can assist you in gathering and organizing the necessary documentation, such as birth certificates, marriage certificates, and proof of the petitioner’s financial ability to support the foreign relative.
3. Representation at interviews: An attorney can accompany you to interviews, providing valuable guidance and support during this crucial stage of the process.
4. Addressing potential issues: If your application is denied or delayed, an attorney can help you understand the reasons and advise you on the best course of action to take. They can also assist with the appeals process if necessary.

To discuss your family-based visas and how an attorney can help, schedule a free consultation with a reputable immigration law firm today.