Petitioning for Relatives
U.S. citizens and lawful permanent residents may petition for certain relatives to immigrate to the United States. A lawful permanent resident (LPR) may petition for his spouse and unmarried children. A U.S. citizen may petition for her spouse, children (regardless of marital status), parents, and siblings.
A U.S. citizen’s spouse, unmarried child under the age of 21, and her parents are considered “immediate relatives” under the immigration laws. There is no limit on the number of immigrant visas that can be issued to immediate relatives. Thus, they are not subject to long waiting periods before they can join their family members in the United States.
By contrast, the following immigrants fall into a preference category and are subject to annual caps that result in lengthy waiting times before an immigrant visa becomes available:
a) First preference: Unmarried children over the age of 21 of U.S. citizens
b) Second preference:
2A – Spouses and unmarried children under the age of 21 of LPRs
2B – Unmarried children over the age of 21 of LPRs
c) Third preference: Married children of U.S. citizens
d) Fourth preference: Brothers and sisters of U.S. citizens
A petition in the preference categories can include derivative beneficiaries, such as the spouse and children of a relative petitioned for in the third and fourth preferences. The Department of State’s monthly Visa Bulletin publishes which preference cases are eligible for processing and visa issuance.
One complication that frequently arises is the ability of children to maintain their status as derivatives in a case after they reach the age of 21. Many times, children turn 21 and thus “age out” and are no longer able to immigrate with their parents. The Child Status Protection Act (CSPA) was enacted to help protect children from “aging-out” by subtracting from the child’s age the time that a petition was pending with U.S. Citizenship & Immigration Services (USCIS). SGG attorneys have expertise in arguing when a child should be covered under CSPA to help a family immigrate together.
Petitioning for a relative begins with filing an I-130 Petition for an Alien Relative. In some cases, the relative may be eligible to file the application for permanent resident status at the same time and from within the United States. Whether the relative applies within the U.S. or from abroad, an immigration officer will review whether she qualifies for the immigrant visa. This includes a review of whether the relative will be a “public charge” or someone who will use public benefits. The rules on public charge are shifting, so it’s important to discuss your case with a qualified immigration attorney.
There are provisions under the immigration laws that allow widows/widowers and certain beneficiaries/derivatives whose petitioner passed away to be able to continue the immigration process. There are also provisions in immigration law for stepchildren and adopted children to be petitioned for by their U.S. citizen parents in certain circumstances.