Family based immigration consists of various familial relationships with a U.S. Citizen or Lawful Permanent Resident that permit a foreign national to obtain permanent immigration status.
U.S. Citizens may petition for their spouses, children under the age of 21, parents, unmarried sons and daughters over the age of 21, married sons and daughters and brothers and sisters. U.S. citizens may also petition for their fiancé(e).
Lawful permanent residents may petition for their spouses, children under the age of 21 and unmarried sons and daughters over the age of 21.
Family based immigration is further broken down into immediate relatives and preference categories creating a very specific hierarchy of immigration processing. Immediate relatives receive immediate visa availability and therefore can apply for an immigrant visa as soon as basic administrative processing of their case is completed. Furthermore, immediate relatives are immediately eligible to apply for adjustment of status. Immediate relatives include the following:
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Spouses of U.S. citizens
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Children of U.S. citizens
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Parents of U.S. citizens
All other qualifying familial relationships make up the preference categories. Preference categories indicate that the foreign national relative must wait an approximate period of time after a relative petition is approved before the foreign national relative is eligible to apply for an immigrant visa or adjustment of status. This is also known as waiting until your priority date is current to apply for an immigrant visa or adjustment of status. The family based preference categories are organized as follows:
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First preference (F1): Unmarried sons and daughters of U.S. citizens (age 21 and over)
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Second preference (F2A): Spouses and children of Lawful Permanent Residents
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Second preference (F2B): Unmarried sons and daughters of Lawful Permanent Residents (age 21 and over)
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Third preference (F3): Married sons and daughters of U.S. citizens
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Fourth preference (F4): Brothers and Sisters of U.S. citizens
Fiancé(e)
A fiancé visa is used for those U.S. citizens whose fiancé(e) is living abroad and the couple wishes to get married in the United States. If issued, the fiancé(e) visa allows the foreign national fiancé(e) to travel to the United States on a K-1 visa and receive an entry of 90 days. The foreign national must marry the U.S. citizen within the 90-day entry or return to the country of origin prior to the expiration of the 90-day entry. A fiancé(e) petition requires a showing of the following:
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The petitioner is a U.S. citizen.
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The petitioner and foreign national fiancé(e) intend to marry within 90 days of the foreign national fiance’s entering the United States.
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The U.S. citizen and foreign national fiancé(e) are legally free to marry, i.e., that any previous marriages have legally ended.
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The U.S. citizen and foreign national fiancé(e) have met, in person, at least once within 2 years of filing the Fiance(e) Petition, unless a waiver applies. A waiver may be available if:
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The in-person meeting requirement would violate strict and long-established customs of your fiancé(e)’d foreign culture or social practice.
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If you prove that the in-person meeting requirement to meet would result in extreme hardship to you.
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Once the U.S. citizen and foreign national fiancé(e) are married, the foreign national must file for lawful permanent resident status through the adjustment of status process. The adjustment of status process allows the foreign national to remain in the United States while USCIS processes the application.
K-3/K-4 Nonimmigrant Visas
A K-3 nonimmigrant visa is available to spouses of U.S. citizens and the K-4 nonimmigrant visa is available to children of U.S. citizens. The visas allow these spouses and children to be admitted to the United States as nonimmigrants while they are awaiting the adjudication of the Relative Petitions (Form I-130) filed on their behalf by the U.S. citizen.
Eligibility for a K-3 nonimmigrant visa requires the foreign national to meet the following criteria:
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Be married to a U.S. Citizen;
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Have a pending Form I-130 filed by the U.S. citizen spouse on his or her behalf.
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Eligibility for a K-4 nonimmigrant visa requires the foreign national child to meet the following criteria:
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Be unmarried, under 21, and the child of a qualified K-3 nonimmigrant visa applicant.
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The K-3/K-4 nonimmigrant process requires the filing of Form I-130, Relative Petition and Form I-129F, Petition for Alien Fiance(e). If the I-129F Petition is approved, it will be forwarded to the U.S. Department of State for consular processing.
Once admitted to the United States, K-3/K-4 nonimmigrants may apply to adjust status to permanent resident at any time. K-3/K-4 nonimmigrants may also obtain employment authorization once admitted to the United States.
K-3/K-4 nonimmigrants are only admitted in that status for a period of 2-years. Extension of status in 2-year increments may be available as long as the marriage-based I-130 visa petition or application for adjustment of status or visa application is still pending adjudication.