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Spouses, Children, Parents, Sons and Daughters, and Siblings

United States immigration laws have traditionally favored family reunification. Under the Immigration and Nationality Act (INA), family relationships involving spouses, children, parents, sons and daughters, and siblings provide a basis for conveying immigration benefits.

The INA creates two broad categories for family members immediate relatives and family-based preference categories.

Immediate RelativesSpouses, Children and Parents of United States Citizen

Spouses: For a United States citizen to petition for his or her spouse as an immediate relative, there must be a valid marriage which was legally entered into.

Parents: For a United States citizen to petition for apparent as an immediate relative, the petitioning citizen child must be over the age of 21 but can be married or unmarried. U.S. citizens who are under the age of 21 cannot petition for their parents under any circumstances.

Children: U.S. citizen parents may petition for their children but to qualify as an immediate relative, the child must be under the age of 21 and unmarried.

There are two little known situations in which children of permanent residents can also qualify as immediate relatives:  (1) When a child is born to a permanent resident during a temporary visit abroad (if the child had been born when the parent was in the U.S. the child would be a citizen) and (2) where the parent had been issued an immigrant visa at a consulate but had not entered the United States as an immigrant.

Procedurally, the immediate relative category has advantages over the preference categories. There are no numerical limitations on the number of immediate relatives who might immigrate from any country. Further, if in the U.S. "immediate relatives" are exempt from certain bars such as unauthorized employment over their time of admission or violating their specific nonimmigrant status.

On the other hand, spouses and children of "immediate relatives"—unlike preference aliens—do not obtain derivative status. In other words, if a person immigrates as an immediate relative parent of a U.S. citizen, that person’s spouse and/or minor children would not also automatically qualify for immigration visas as would spouses and/or minor children of a preference alien.

The Family-Based Preference Categories

Family One – unmarried sons and daughters of United States citizens.

The son or daughter must be unmarried at the time the petition is filed and at the time of entry into the U.S. Where an "immediate relative" petition has been approved for a "child" and the child reaches the age of 21, the petition is automatically converted to Family One. Where there is an approved Family One petition and the son or daughter marries, the petition is automatically converted to Family Three. The numerical quota for this category has been current for every country except Mexico and the Philippines.

Family Two – spouses and unmarried sons and daughters of permanent residents

This preference category is divided into two subgroups:

  • Family 2A – Spouses and children under the age of 21
  • Family 2B – Unmarried children over the age of 21

Married children of permanent residents do not qualify for any immigration benefits.

For all countries, there are long delays in the Family 2A category and even longer delays in the Family 2B category. The Family 2A waiting period is over four years. The Family 2A waiting period is over four years. The Family 2B wait is seven years for all countries.

Family Three – married sons and daughters of United States citizens

For all countries except Mexico and the Philippines, the waiting period is slightly over three years. For the Philippines and Mexico, the time interval is substantially longer.

Conditional Permanent Residence for Spouses

In order to discourage what as perceived as widespread marriage fraud, Congress has provided that were a party obtain an immigrant visa based upon marriage as either an immediate relative or a Family 2Q beneficiary and where the marriage is less than two years old, the alien enters the United States as a "conditional permanent resident."

This "conditional status" lasts for two years from the date that the person becomes a resident, not two years from the original marriage date.

The person must petition to remove this status. If the parties are still married, they can jointly petition to remove this "conditional status" any time between the 21st and 24th monthly anniversary of the grant of "conditional status." If a joint petition cannot be filed, the "conditional resident" can file a waiver where the spouse is deceased, the marriage was entered in good faith but the person was the victim of battering or extreme cruelty; or where the termination of the status and deportation would result in extreme hardship. This petition can be filed at any time.

Children who obtain status as either a "child" or "stepchild" based upon a marriage of less than two years are also "conditional resident" and must file to have their "conditional status" removed. Where the parent is also a "conditional resident," the parent can include the child in his or her application.

New Affidavit of Support

The new legally enforceable Affidavit of Support (Form I-864) must be completed by U.S. citizens and legal permanent residents who sponsor family members as immigrants to live in the United States. Sponsors must complete the new Affidavit of Support form for relatives who will file applications for immigrant visas or for adjustment of status on or after December 19, 1997.

The law requires a sponsor to demonstrate an income level at or above 125% of the Federal poverty line as published annually by the Department of Health and Human Services.

If the sponsor’s household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsors ability to support the immigrant.

If the sponsor cannot meet the required income level based on income and assets, another person may serve as a joint sponsor. The joint sponsor must meet all sponsorship requirements other than being the petitioner, and be willing to assume legal liability for the sponsored immigrant(s) with the petitioning relative.

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