Generally, there are two ways that one may petition an alien to immigrate to the United States. The first way is through familial relationships, using what is known as “Family-Based Immigration.” This is filed using a Form I-130 Petition. The other is through employment relationships under the category of “Employment-Based Immigration”. These are filed using a Form I-140 Petition. This article discusses petitioning through Family-Based Immigration.
Filing a petition is the first step in the petitioning process. After filing the petition, one should file a Form I-485 adjustment of status application if the alien is already in the U.S. If the alien being petitioned is abroad, the petitioner must go through the immigrant visa Consular Processing in the country’s U.S. Consulate office.
I am already legally in the U.S.; who am I entitled to petition?
If you are already in the United States, who you may petition depends on two things:
1) what your current citizenship status is
2) what the alien’s relationship to you is
Regarding your current citizenship status, eligibility for petitioning depends on whether you are a U.S. Citizen or a Permanent Resident. Regarding the alien’s relationship to you, eligibility depends on whether the person is an immediate relative or simply a close family member. The various categories for immigration visas are outlined below.
Immediate Relatives of U.S. Citizens
Aliens who are immediate relatives of U.S. Citizens receive the highest preference in terms of obtaining an immigration visa. An immediate relative is defined as either a spouse, unmarried children under the age of 21, or parents, of a U.S. Citizen.
The filing process for immediate relatives of citizens is “streamlined”, meaning that the petitioner can file all the paperwork at the same time. In addition, there is no limit to the number of visas that may be issued per year under this category. (Sponsors under the other categories must file specific papers at different time intervals, and there are limits to the number of visas issued per year). The categories and requirements for immediate relatives of U.S. citizens are as follows:
- Spouses of U.S. Citizens– the alien must be married to a U.S. citizen
- Unmarried Children under the age of 21 years old of U.S. Citizens– the alien must be the son or daughter of a U.S. citizen; they must be unmarried, and under the age of 21. Adopted children qualify under this category
- Parents of U.S. Citizens– the alien must be the parent of a U.S. citizen, and the U.S. citizen must be over 21 years of age.
Close Family Members of U.S. Citizens
Those not qualifying under the “immediate relatives” category may file under this category. These include unmarried children over 21 years of age of U.S. citizens, married children of U.S. citizens, and siblings of U.S. citizens. However, as mentioned above, petitions filed under this category are not “streamlined”, and are subject to a limit as to how many visas may be issued per year. These are the petitions that are treated in the “Visa Bulletin” (see below).
Under this category, relatives of the citizen are classified into different “Preferences”, for example, “First Preference, Second Preference”, etc. The higher the preference, the faster the alien will be eligible for a green card. The preference categories are as follows:
First Preference: Unmarried children who are under 21 years of age of U.S. citizens– here, the alien must be a child of a U.S. citizen, and be over 21 years old
Second Preference: see below (Permanent Residents)
Third Preference: Married children of U.S. citizens– the alien must be a child of a U.S. citizen, and married.
Fourth Preference: Siblings (brothers or sisters) of U.S. citizens– To qualify as a brother or sister, both the citizen and the alien must be children of the same parent. The U.S. citizen must be over 21 years old.
If you are not a U.S. citizen but are a Permanent Resident (green card holder), you may only petition your spouse and unmarried children. This category forms the “Second Preference” category for aliens.
Second Preference 2A: Spouses, and children who are under 21 years of age of Permanent Residents
Second Preference 2B: Children who are over 21 years of age of Permanent Residents
Note: Children in this category must be unmarried; adopted children also qualify. Parents may also be petitioned if the permanent resident is over 21 years old.
How long is the wait?
After filling for petition, the alien still must wait a specified amount of time before they can come to the U.S. under a green card. The waiting periods and the number of visas issued vary depending on various factors such as country of origin.
To recap, if you are a U.S. Citizen, you may petition the following persons under the family-based immigration category, and the waiting period for green card eligibility usually is:
- Your spouse (husband or wife): 6-12 months waiting period
- Unmarried children who are under 21 years old: 6-12 months waiting period
- Unmarried sons or daughters who are over 21 years old: 5 years
- Married sons or daughters of any age: 8 years
- Parents and siblings, if the petitioner is over 21 years old: about 6-12 months for parents and up to 11 years for siblings
If you are a Permanent Resident (“green card holder”) the waiting periods for the following people are:
- Your spouse: 5 years or longer
- Unmarried sons and daughters: 5 years or longer if the child is under 21 years old and anywhere from 7-10 years if the child is over 21 years old.
What about fiancés?
Only U.S. citizens may petition a fiancé under a K-1 filling. Petitioning a fiancé involves several extra steps, mainly to prove that the couple has spent time with each other and are validly engaged. Some of these extra requirements include photographs of the couple together, travel tickets documenting that the citizen did in fact visit the fiancé, and other items proving time spent together.
The waiting period for obtaining a fiancé visa is typically about 3-6 months, though it may be longer depending on the circumstances. Once the fiancé visa is granted, the fiancé may enter the U.S. It should be noted that the couple must get married within 90 days after the fiancé enters into the U.S. After marriage, the fiancé is subject to several other conditions including filing for Permanent Residence status.
The Visa Bulletin
As stated above, the number of visas available, as well as waiting periods are subject to limitation and changes according to the month of application and the alien’s home country. The U.S. Department of State issues a visa bulletin that outlines the details of these numbers based on category of preference. Again, the visa bulletin only deals with the types of categories mentioned above that are not “streamlined”. To view this bulletin, visit the Visa Bulletin link [http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html] (the bulletin changes every month).
How do I obtain a Form I-130 and how much is the filling fee?
Form I-130, “Petition for Alien Relative” is produced by the U.S. Citizenship and Immigration Services (USCIS). It may be downloaded at the USCIS forms website. The filing fee is $355 per form. Separate forms must be filed for each alien relative being petitioned. Instructions for filling may also be obtained at the forms website.
Conclusion: Do I need a lawyer in order to file?