Family-Based Permanent ResidenceWho is Eligible?
The Family Preference Categories
The Immigration Act of 1990 significantly changed certain aspects of family sponsored immigration in the United States. Generally speaking, it increased the total number of visas available for some categories of close family members of U.S. citizens and lawful permanent residents. This chapter will briefly discuss the various categories of family sponsored petitions for permanent residence, the I-130 Petition, and the evidence that is required to accompany the petition.
Just as employment based petitions may be filed in a variety of categories, so, too, are petitions based on family relationships divided into various categories. These include:
- FIRST PREFERENCE: UNMARRIED SONS AND DAUGHTERS OF AMERICAN CITIZENS. This category refers to the adult children of U.S. citizens or those who have reached the age of 21 years prior to issuance of the immigrant visa.
- SECOND PREFERENCE: SPOUSES, SONS AND DAUGHTER OF LAWFUL PERMANENT RESIDENTS;
- THIRD PREFERENCE: MARRIED SONS AND DAUGHTER OF U.S. CITIZEN.
- FOURTH PREFERENCE: BROTHERS AND SISTERS OF U.S. CITIZENS.
You may note that there is no preference category for spouses or unmarried minor children of American citizens. This is because there is no numerical limitation placed on the immigration of the spouses or unmarried minor children of American citizens. Immigrant visas are always immediately available to them, however, they too must be admissible to the U.S. before a permanent resident visa can be issued to them. the actual request for permanent resident status for an alien in one of the above-listed preference categories is made on Form I-130, "Petition for Alien Relative". It must be filed with the INS Regional Service Center having jurisdiction over the place where the person filing the application (i.e. the petitioner) lives.
A U.S. citizen can file the petition on behalf of is/her:
- husband, wife, or child under the age of 21;
- an unmarried child over the age of 21;
- married child of any age;
- brother or sister if the U.S. citizen is at least 21 years old; or
- a parent if the U.S. citizen is at least 21 years
A lawful permanent resident can file the petition on behalf of his/her:
- husband or wife;
- unmarried child.
I-130 Petitions for Alien Relatives cannot be filed on behalf of the following person:
- An adoptive parent or adoptive child if the adoption took place after the child reached the age of 16, or if the child has not been in the legal and physical custody of the parents for a period a of at least two years;
- A natural parent if the U.S. citizen gained permanent residence through adoption;
- A stepchild or stepparent if the marriage that created the relationship took place after the child was 18 years of age;
- A husband or wife if both were not physically present at the marriage ceremony, and the marriage was not consummated;
- A husband or wife if the person filing the petition gained permanent resident status by virtue of a prior marriage to a U.S. citizen or permanent resident unless a period of five years has elapsed since the petitioner became a permanent resident, or the prior marriage was terminated by the death of the spouse, or he/she can establish by clear and convincing evidence that the prior marriage was not entered into to evade any provision of the immigration law.
Certain documentation must be submitted with the petition to prove the legal status of the petitioner, and the stated relationship exists between the petitioner and his/her relative.
To prove that the petitioner is a U.S. citizen, he/she must submit a certified copy of his/her birth certificate, an original Certificate of Naturalization, a Certificate of Citizenship, or a valid U.S. passport. To prove that a petitioner is a lawful permanent resident, he/she must submit his/her valid alien registration receipt card (Green Card).
To prove the family relationship between:
- A husband and wife, the petitioner must provide a certified copy of the relevant marriage certificate, and proof of the legal dissolution of all previous marriage of both parties;
- A child and parent, the petitioner must provide a certified copy of the child's birth certificate showing the names of both the mother and father, and the marriage certificate of the parents;
- Brother(s) and sister(s), the petitioner must provide certified copies of his/her birth certificate and the birth certificate of his/her sibling showing the names of both parents, and the marriage certificate of their parents to each other;
- Parent, the petitioner must submit a certified copy of his/her birth certificate showing the parent's names, and the marriage certificate of the parents if filing on behalf of the father.
- Stepparent, the petitioner must submit certified copies of his/her birth certificate showing the names of his/her natural parents, and the marriage certificate of his/her .natural parent to the stepparent;
- An adoptive parent or adoptive child, the petitioner must submit a certified copy of the adoption decree.
The petitioner must be filed with a fee of $110.00 at the INS Regional Service Center having jurisdiction over the place of residence of the petitioner. After the petition is approved, the alien relative may have to wait for a period of years until an immigrant visa is available to him or her. The Chapter that follows discuss the reason for this wait, and the next step in the process of obtaining permanent resident status.