Visas & Advice Detail
Family visas to America
Family visas enable many Brits to emigrate to the States, but would they be better taking a different route?
Immigration attorney Anthony Olson explains all. It is often the case that during an initial consultation with clients at our office, people say that they have an uncle or a cousin in the US who will sponsor them to immigrate here. I must then give them the unfortunate news that US immigration law requires a much closer family relationship in order to qualify for family-based sponsorship, within a complicated hierarchy of preference categories – nearly all of which are subject to annual quotas – and with waiting periods that last several years.
Happy Family visas
The top of the pecking order in the preference categories are the immediate relatives of US citizens, who are not subject to the quotas of the preference category system. This group consists of citizens' spouses; any unmarried children under 21 (including step-children under 18 at the time of the biological parent's marriage to the US citizen and adopted children under 16 at the time of adoption and who have spent two years in the legal custody of the American parent); and their parents. One potential disadvantage for those who qualify in this category is that none of their own dependent relatives can benefit. For example, the parent of a US citizen can be sponsored as an immediate relative, but the parent's other children – for instance the younger siblings of the US citizen in question – are not eligible for the same fast immigration process because they are not considered immediate relatives and the parents cannot bring them along as derivative beneficiaries under their case. US citizens can sponsor their siblings, but that relationship falls within the fourth preference category, which currently involves a 12-year waiting period for most areas of the world.
The rest of the clan
The first family-based preference (F1) category consists of the unmarried sons and daughters of US citizens who are over 21 years of age. The current waiting time for people from most countries of the world is a matter of years, though this is nothing compared to some countries which send large numbers of immigrants to the US. For instance, the waiting time for people from Mexico is 15.5 years and for the Philippines it is 15 years.
The second family-based preference category is divided into two sub-categories: F2A for the spouse and unmarried children under 21 of a US permanent resident; and F2B for unmarried sons and daughters over 21 of a US permanent resident. The current waiting time in the F2A category is about five years, while in the F2B category the waiting time is ten years. Typically, the best strategy for a sponsor to speed up immigration in this category is to apply for citizenship as soon as possible, which requires at a minimum being a permanent resident for five years.
The considerable time setback suffered by children who 'age-out' – that is, reach 21 years of age and are consequently dropped to a lower preference category with a much longer waiting time – has been ameliorated by a law called the Child Status Protection Act (CSPA). Among the effects of this law is that unmarried children of US citizen for whom a petition is filed prior to their 21st birthday have their age locked in at the date when the petition was filed for them by the US citizen parent. Unmarried children of US permanent residents can benefit from the CSPA primarily if their US permanent resident parent obtains citizenship. If their age is under 21 at the time the parent obtains citizenship, then their age locks in on that date. If they are over 21 on the date their parent gets citizenship, then they are eligible to immigrate in either the F1 category or F2A, whichever is more beneficial.
This is usually of greatest benefit to applicants from Mexico and Philippines, which have longer backlogs in the F1 category than the F2A category. The third preference (F3) category is for married sons and daughter of US citizens. The current quota backlog is about 7.5 years for most of the world. This category encompasses all sons and daughters of US citizens, regardless of age, who marry before they receive permanent resident status. If the son or daughter divorces, then they are automatically boosted to the higher preference category of immediate relative (if they are under 21) or F1 (if they are over 21). Immigration authorities watch for such opportunistic divorcing, and also caution against marrying very quickly after obtaining permanent resident status as an unmarried son or daughter. The result of such actions can be losing the Green Card. The consequence for daughters and sons of US permanent residents who marry after their parent files an immigrant petition for them, is that the petition filed by their parent is automatically invalidated because there is no category for married sons and daughters of permanent residents. Finally, there is the fourth preference (F4) category, which is for siblings of US citizens. The current waiting time for most of the world is 10.5 years and only biological siblings of US citizens qualify.
Application process
Now, we come to the procedures of family immigration. All family sponsorship begins with an I-130 petition with the necessary supporting documentation. However, before filing, a strategy must be devised as to how, when, and where to file. Anyone who falls within one of the preference categories F1 through F4 outlined above must file the petition with the regional service centre for the US Citizenship and Immigration Services that has jurisdiction over the place where the sponsor/petitioner lives in the US. From then it is a waiting game because the filing of the petition does not entitle the beneficiary to wait in the US. In fact, if the beneficiary stays in the US and goes 'out of status', then the person will not be eligible to complete the process.
Once the petition is approved and the beneficiary's priority date becomes 'current' – that is, the receipt date on the petition has been reached – then the person can pursue immigrant visa processing at the consulate where the beneficiary lives, or, if the person is in the US – in a status which permits them to adjust their status within America – then they can apply from within the US. Whether a priority date is current can be determined by consulting the Visa Bulletin published by the US Department of State.
Immediate relatives of US citizens, or prospective immediate relatives of US citizens, in the case of fiancé(e)s, have additional options available to them. When a person is considering marrying a US citizen, they can obtain a K-1 fiancé(e) visa, with which they may enter the US, marry the US citizen, and then apply for permanent residence within the US. Alternatively, a couple can marry outside of the US and then apply for a K-3 visa from the US consulate in the country where the wedding took place. The foreign spouse then enters the US under the K-3 visa and can pursue permanent resident status either in the US or at the US consulate in their home country.
Another option for US citizens and their foreign spouse is the immigrant visa, which is a more efficient approach – insofar as a similar petition and consular process as the above-mentioned K-1 fiancée and K-3 spouse visa is required, but once the foreign spouse enters the US with the immigrant visa, then the foreign spouse automatically becomes a permanent resident without any further immigration process. It is important to note that in all marriage-based cases in which the marriage is less than two years old at the time when the foreign spouse becomes a permanent resident, then the permanent residence is granted subject to a condition that the couple file in the 90 days prior to the second anniversary of the grant of permanent residence, a petition to remove that condition based on a further showing of a good faith marriage. Parents of US citizens must either go through a combination of I-130 filing at the service centre, and then filing for an immigrant visa at the US consulate in the parent's home country. Alternatively, if the parent is already in the US under some other sort of visa, then the parent can adjust their status – that is, obtain permanent residence – from inside the US.
Immigration through family relations requires a close family relationship and a lot of planning and strategising, particularly when teenage children are involved, who might age out in the process.
This explanation of the family visa system will no doubt be good news for some, and less so for others. However all is not lost, the chances are that a different route into the US can be found that will be within your reach. The best advice is to contact a trained visa attorney to discuss your situation.
Anthony Olson can be contacted through his website Immigration Visa USA
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