Family-Based Permanent Residence in US

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.

The Family Preference Categories

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:

1. 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.
2. SECOND PREFERENCE: SPOUSES, SONS AND DAUGHTER OF LAWFUL PERMANENT RESIDENTS;
3. THIRD PREFERENCE: MARRIED SONS AND DAUGHTER OF U.S. CITIZEN.
4. 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:

1. husband, wife, or child under the age of 21;
2. an unmarried child over the age of 21;
3. married child of any age;
4. brother or sister if the U.S. citizen is at least 21 years old; or
5. 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:

1. husband or wife;
2. unmarried child.

I-130 Petitions for Alien Relatives cannot be filed on behalf of the following person:

1. 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;
2. A natural parent if the U.S. citizen gained permanent residence through adoption;
3. A stepchild or stepparent if the marriage that created the relationship took place after the child was 18 years of age;
4. A husband or wife if both were not physically present at the marriage ceremony, and the marriage was not consummated;
5. 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.