Family immigration

A citizen or a lawful resident of the United States may petition for his(er) family to immigrate to the U.S. The family relationships subject to immigration benefits consist of the immediate family, the parents, the siblings, grouped in four categories called “preferences”.

Immediate Relatives
The Immigration and Nationality Act defines the family relationships to include:
Immediate family (Spouse, Unmarried Children under twenty-one year-old, and Parents.)
Other family relationships( Married Children, Children over 21 year-old, Siblings)
Benefits are available to U.S. citizens and to residents are different, for instant:
      1.   While US Citizens may petition for their spouses, unmarried children, married children, siblings and parents, lawful permanent residents may only petition for their spouses and unmarried children.
      2.   For US Citizen-petitioned immediate relatives (spouses, unmarried children under 21 and parents) there is no limit in the number of visas that may be issued in any given year whereas lawful residents’ spouses and children are subject to limited allocation of visas each year.

Spouses
At the heart of the marriage based immigration benefits is the marriage that first, must be bona fide – contracted by the parties in good faith and that is legally recognized in the eye of the law of the country (or state) where it is contracted. Second, such marriage must not go against public policy in America and third, the marriage must not be contracted for the purpose of evading U.S. immigration laws (sham marriage.) Further, as Federal law DOMA (Defense of Marriage Act) defines marriage as the union between a man and a woman, the current law does not grant immigration benefit based on same sex marriage.

A few years ago when the adjudication for a spousal immigration petition took a long time to adjudicate, a law called the Legal Immigration and Family Equity Act (the "LIFE Act") made available the K-3 visa to the spouse of U.S. citizens and K-4 to their under 21 year-old unmarried children under age 21 while awaiting processing of their immigration petitions. These types of visa, although still available, are no longer practical given the progress of the USCIS and Visa agencies to shorten the processing time of the immigration petitions.

K-1 Visa for Fiances of U.S. Citizens
A U.S. citizen, under certain requirements, may petition for his(er) fiancée to have a visa to travel to the U.S. where (s)he will marry the U.S. fiancé within 90 days from his(er) arrival. This benefit is not available to a permanent resident. After the marriage in the U.S., the beneficiary – now newly married – will apply to adjust his(er) status to permanent resident. The beneficiary’s unmarried children under 21 year-old are allowed to accompany the K-1 visa beneficiary under K-2 visa and to later adjust status to permanent resident as well.

Although K-1 visa is based on an “engagement” or a promise to marriage, such promise must also be made in good faith, and that the parties must prove that they are willing and capable to marry and that such promise to marriage has been made in compliance with the custom and culture norms in the country of the foreign fiancé(e).

Conditional Status and the Removal of Conditions
If a petition is filed, and granted for the immigration of the foreign spouse and his(er) dependents where the underlined marriage was less than 2 years old, the resident status thus obtained is called “conditional” and must be subject to an application to remove conditions that must be jointly filed by the petitioner and the beneficiary with 90 days preceding the expiration of the Conditional Resident card. If the petitioner and beneficiary fail to apply the removal of condition within the 90 day period, a waiver might be obtained under certain circumstances.

The removal of conditions may also be applied by the beneficiary alone where there was spousal abuses or death of the petitioner spouse.

Children
The Immigration and Nationality Act has specific definitions for who may be deem children for the purpose of immigration benefits. That includes children born in wedlock, step children (under 18 year-old at the time of the marriage), legitimated children, adopted children or natural children to American citizen.

The filial relationship must exist at the time of the petition and to have the benefit as a child where that applies, the beneficiary child must be not older than 21 year old at the time the visa is issued to him(er). Situations may arise where, due to the processing time length, a child may be under 21 at the time of the filing of the petition but over 21 at the time of the visa issuance. This “aged out” situation is remedied to an extent with the Child Status Protection Act” (http://www.uscis.gov/files/pressrelease/CCA_102504.pdf.)

Parents
Only U.S. citizens of over 21 year-old may file immigration petitions on behalf of their parents. This benefit is not available to permanent residents. Since parents are considered immediate family, a petition for parents is not subject to the number of visas limit in any given year.

Other Family-Based Immigration Categories
The other family based immigration benefits are classified in four general “preferences” each of which is subject to a specific annual number of visa availability for that category.
  
 Since the annual number visas for each category is limited, the visa is issued by the “priority date” of the petition. Depending on the category and whether the beneficiary is from China, Mexico, India or the Philippines, the waiting time due to visa backlogs vary from one category to another. Each month, the Department of State issues a Visa Bulletin showing the visa availability status for each category. http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html