U.S. immigration law allows certain resident or non-resident aliens who are family members of U.S. citizens and lawful permanent residents to become lawful permanent residents (obtain a Green Card) based on specific family relationships. Spouse, minor child or parent of a U.S. citizen may apply for green card at any time without having to wait for an immigrant visa becomes available.

Other family members eligible to apply for a Green Card are subject to the following family “preference immigrant” categories:

• First preference (F1) - unmarried sons and daughters (21 years of age and older) of U.S. citizens;

• Second preference (F2A) - spouses and children (unmarried and under 21 years of age) of lawful permanent residents;

• Second preference (F2B) - unmarried sons and daughters (21 years of age and older) of lawful permanent residents;

• Third preference (F3) - married sons and daughters of U.S. citizens; and

• Fourth preference (F4) - brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older).

There is a numerical limit in each of the above preference immigrant categories each fiscal year. Typically, this means most people subject to the preference immigrant categories have to wait until a visa number is available for that category of their family relationship, depending on their country of birth and date of filing a visa petition. The process is first-in, first-out. The Department of State publishes a monthly Visa Bulletin to announce visa availability for all the preference categories of family-based immigration.

Immigration law has very specific rules for determining if a family relationship qualifies for immigration benefits. In general, children, parents, siblings, spouses, fiancé(e)s can qualify for immigration benefits; Aunts, uncles, cousins, etc., do not qualify.

Children

A child may be sponsored in many circumstances in immigration law. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. The child can be genetic child born in or out of wedlock, a stepchild if the step-relationship occurred before the child turned 18, or a qualifying adopted child depending on the child’s age when adopted and whether legal custody and joint residence can be established.  

One of a major concern when applying for a child arises when someone who applies for a green card as a child but turns 21 before being approved. Thereafter the person can no longer be considered a child for immigration purposes. Congress recognized that many children were aging out due to large U.S. Citizenship and Immigration Service (“USCIS”) processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. This allows some people to remain classified as children beyond their 21st birthday. However, the person must still be unmarried in order to remain eligible for classification as a child.

Parents

To determine if one is a parent, one need only look to the definition of child, as discussed above. If the child qualifies for one of the above-listed relationships, the parent is, by definition, considered a parent. For immigrant visa sponsorship purposes, however, only U.S. citizen children over the age of 21 can petition for a parent’s immigration.

Siblings

U.S. citizens can sponsor siblings for visas under the family 4th preference category. In general, a U.S. citizen may sponsor an adopted sibling like a biological sibling even if the U.S. citizen child themselves was adopted. However, if the U.S. citizen child initially obtained a green card as an adopted child, then they may not sponsor their siblings.

Spouses

The core to the success of marriage-based application is the validity of the marriage. The marriage must first be determined to be valid under the laws of the state or country where the marriage was performed. That would include religious marriages if such a marriage is recognized as legally valid in the jurisdiction where the ceremony takes place except that the jurisdiction requires a civil registration of the marriage. The applicants must also show that their marriage is bona fide and not for immigrant purposes only. 

Couples are normally interviewed during the USCIS adjustment of status phase of a case (if processing in the United States) or at a consulate abroad.

USCIS examiner or a consular officer may pay considerable attention to whether a marriage is bona fide, and a number of factors will potentially come in to play, including:

• How long did the couple know each other before marrying?

• Is the couple living together and, if not, is there a good reason that they are not?

• Does the couple appear to know each other well (much of the interview may probe this subject)?

• Has the couple merged their personal finances?

• Are the relatives of the U.S. citizen or permanent resident petitioner aware of the marriage?

• Did the marriage seem to be hurried and informal?

• Was the foreign national in a secure immigration status (or out of the country) or facing potential removal because of being out of status?

The applicants must show they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. The household of the petitioner must meet the income requirements based on125% of HHS Poverty Guidelines for their household size, as set forth in the following chart for the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands (2023):

In some cases, the applicants may submit proof of assets if their annual income is insufficient to meet the income requirement. They may also have a qualifying and willing co-sponsor join the petition as the applicant’s financial support. 

Fiancé(e) Visa (K-1)

The K-1 nonimmigrant visa is used by fiancés of U.S. citizens seeking to enter the United States for the purpose of marrying and filing for permanent residency through adjustment of status.

The K-1 visa has a few basic requirements:

• The couple has a bona fide intent to marry within 90 days of the foreign national entering the United States;
• Each member of the couple is legally able to marry; and
• The couple has met in person within two years of filing the petition unless a waiver can be granted when the in-person meeting requirement would violate the strict and long-established customs of the fiancé(e)’s foreign culture or social practice or resulted to extreme hardship to the U.S. citizen petitioner.

The K-2 visa is available to unmarried, minor children (under 21) of an individual who qualifies for the K-1 fiancé(e).

90 Day Rule

K-1 and K-2 nonimmigrant status automatically expires after 90 days upon the entry into the U.S. and cannot be extended. Generally, the foreign fiancé(e) and his or her children must leave the United States at the end of the 90 days if foreign fiancé(e) does not marry to the same U.S. citizen who petitioned the K-1 visa.  If they do not depart, they will be in violation of U.S. immigration law. They will be subject to removal (deportation).

If the marriage takes place after the 90 day period, the K-1 foreign fiancé(e) and (K-2 children) lose their status but the U.S. citizen spouse may file a Form I-130, Petition for Alien Relative so the foreign spouse may adjust status.

Generally, the K-1 fiancé(e) may not apply for a Green Card on any other basis besides marriage to the same US citizen who petitioned the K-1 visa.

Please do not hesitate to contact our experienced immigration attorneys for any family immigration questions. Schedule A Consultation.