IMMIGRATION: IT'S ALL IN THE FAMILY

Immigration for Spouses: Click HERE

Filing for Parents? Be sure to read this warning first.

Marriage Shaky? Read this first.

Family-based immigration is based on the longstanding tradition of family unity. The US immigration system allows citizens to sponsor their family members who can then get their green cards and eventually become citizens themselves.

The system, of course, is much more complicated than that. Not every family member can be sponsored. And even if you can sponsor a family member, it may take a very long time.

The sponsor is actually called the “petitioner.” The person being sponsored is called the “beneficiary.” The process of family-based immigration involves at least two steps:

1. The petitioner files a petition, telling the government that there is a family member to be sponsored.
   
2. The beneficiary files an application. If this happens outside the US, it is for an “immigrant visa.” If it happens within the US, it is for “adjustment of status.” The end result is the same: the beneficiary comes to the US as a lawful permanent resident – a green card holder.
   

Generally, the ability of someone to petition depends on the following factors:

1. The petitioner's status (US citizen or green card holder)
   
2. The family relationship with the beneficiary
   
3. The beneficiary's country of nationality

Let's take a look at each of these factors.

The Petitioner's Status. To be able to petition a family member, the petitioner has to be either a US citizen or a green card holder. That being said, it is true that someone in the US on some other type of visa (say, a student visa, or an H-1B) can have their spouses and children come on “dependent” visas, but this is not the same as petitioning for permanent residence. A student visa holder cannot ask the US government to grant his wife a green card!

The Family Relationship. We immigration lawyers have a unique perspective on the stunning diversity of human culture. Most languages have a word for “family,” but the word is understood in very different ways. It is difficult for people from many cultures to appreciate that the US immigration system has a very narrow, rigid view of “family.” Family in US immigration law means your spouse, your parents, your children, and your siblings. No one else.

Each relationship further depends on the petitioner's status, and also on whether the children are over 21 (in which case the law calls them “sons or daughters” and not “children”) or married. When you put together all the different categories, it looks something like this:

• Spouses, parents and children (under 21) of US citizens
  
• Unmarried sons and daughters (over 21) of US citizens
  
• Spouses and children (under 21) of green card holders
  
• Unmarried sons and daughters of green card holders
  
• Married sons and daughters (over 21) of US citizens
  
• Siblings of US citizens (any age)
  

The Beneficiary's Nationality: For each category, there is an annual quota of green cards available worldwide. However, there is also a per-country cap. Even if the worldwide cap has not been used up, a particular country's cap may be. When the cap is used up, the people at the back of the line have to wait until new numbers become available the next year. If those are used up, too, then they have to wait another year. And thus, the backlog is born.

The practical effect of this means that countries with large populations or with historically high levels of immigration into the United States have to wait longer for a green card than others. So the system works against you if you are from India, China, Mexico, or the Philippines.

A petitioner marks the beneficiary's place in line by filing the petition. Once received by immigration, it is assigned a “priority date.” Then, the beneficiary will only be able to apply to get his green card (step 2) after the priority date is reached. The only time a priority date isn't that important is in the case of immediate relatives (defined as parents, spouses and children under 21 of US citizens). For these beneficiaries, there is no backlog, and green card “numbers” are available.

The US Department of State, every month, publishes what's known as the Visa Bulletin (available here) that neatly summarizes all the above information and shows where all the priority dates are for each family-based category.

To stay on top of long-pending cases and to know when it will be possible to file for a green card, you have to keep monitoring the visa bulletin.  The easiest way to monitor it is to first "like" the HMA Law Firm Facebook page, as we automatically post new priority dates when the new visa bulletin comes out each month.  From there, it's a very simple matter to determine whether your date is current.

When the new bulletin comes out, go to it at http://travel.state.gov/visa/bulletin/bulletin_1360.html and scroll down to "Family-Sponsored Preferences" and look at the date by the appropriate category.  Look across under "all chargeability areas except for those listed" (unless you're from one of the countries listed to the right.) The date you see in that box is the priority date that is current.  Only people with priority dates prior to that date can apply for a green card.  

Priority dates change over time.  Sometimes there are big advancements; sometimes there are retrogressions.  It's always a good idea to keep monitoring it, which is very simple to do and only takes a few seconds.

Your wait for your priority date can affect your options to extend or change your eligibility for other nonimmigrant statuses.  Entry into the United States is also affected.  

That is the family-based immigration system in plain English. It is clear that successfully bringing over a family member requires an ability to understand all the interconnected factors, and then applying the client's situation to those factors. For example, what to do if a child turns 21? Or a green card holder files a petition for a son who then gets married just when the priority date becomes current? What if the beneficiary is (or was) unlawfully present in the US? Or the petitioner dies? Or a marital relationship is mistakenly misrepresented on an immigration form? Or there is a fraudulent marriage or divorce? These are just some of the myriad of issues we, like many lawyers, have dealt with.

Many family-based cases are simple and straightforward. Many people successfully prepare and file these cases on their own, without the assistance of an attorney. Of course, many people also manage to drive uninsured cars without getting into an accident. No matter how “simple” and “clean” your case is, nothing can substitute for the quality of a case filed by an experienced attorney. We encourage all petitioners to at least consult with an attorney to determine what, if any, issues may come up. It's never a bad idea to know what to expect. And the stakes are high.

After all, it's family.

CONSULT
A LAWYER