The U.S. immigration system offers opportunities for U.S. citizens and permanent residents to petition for immediate family members, affording them eligibility for permanent residence. Foreign nationals can obtain status in the United States through various pathways, including the important family-based categories. For those on the priority waitlist, the Department of State’s monthly visa bulletin provides essential information on waiting times for different categories.
At our New York family immigration law firm, experienced attorney Jennifer Oltarsh and her legal associate and staff can assist with all your family immigration needs, including permanent residence through marriage, permanent residence for foreign nationals, and obtaining a provisional waiver for inadmissibility.
U.S. citizens and legal permanent residents may apply for their spouse and children, although permanent residents may only apply for unmarried children. U.S. citizens may also apply for parents, siblings, and married children. The spouse, minor child, and parents of U.S. citizens are immediately available to obtain residence. Other family members, such as spouses and children of permanent residents, adult children of US citizens, and siblings are placed on the priority waitlist, meaning they must wait until the priority date becomes current in order to be eligible to file for a Green Card. To obtain a Green Card in the United States, the foreign national must have entered the country legally and if on the priority list be in the US in valid status. For immediate relatives, only a legal entry is required. Certain aliens who are beneficiaries of old petitions filed before April 30, 2001, may be eligible to adjust pursuant to INAsec. 245(i).
Eligible relatives for permanent residence through family members include:
Marriage to a U.S. citizen or permanent resident can lead to a Green Card. A U.S. citizen may apply for their spouse to obtain a Green Card, and the spouse is immediately eligible to apply for permanent residence without a wait time. These beneficiaries are immediate relatives, who can obtain Green Cards without wait periods or numerical limits, although processing times can be lengthy. If the foreign national is in the United States, t the foreign national must have entered the United States legally to be eligible to adjust to permanent residence. For those immediate relative spouses outside the United States, permanent residence is obtained through consular processing of the immigrant visa at a U.S. Consulate or Embassy.
Permanent residents may also apply for a Green Card for their spouses, but these relatives are placed on a priority waitlist, meaning they must wait to become current to be eligible to apply for permanent residence. If the foreign national wishes to apply for permanent residence through adjustment of status in the United States, they must have entered legally and be in valid status at the time of the adjustment of status application. For those applicants outside the United States, the foreign national spouse will apply for an immigrant visa through consular processing.
The fiancé of a U.S. citizen may apply for a fiancé visa, allowing the foreign national to enter the United States. Upon entry, the fiancé must marry the U.S. citizen within 90 days to be eligible for permanent residence. The visa has restrictions on obtaining residence, and if marriage to the petitioning U.S. citizen does not occur within the 90-day period, there are limited means of adjusting status afterward. The visa permits minor children to accompany their parent to the United States.
Minor children under 21 of U.S. citizens are also immediately eligible for permanent residence. As long as the child entered the United States legally, they may adjust status. If the child entered the United States without inspection or went out of status, the child must process the immigrant visa at a U.S. Consulate overseas. Step-children can also process for permanent residence as immediate relatives, provided that their foreign national parent married the U.S. citizen or permanent resident before the child’s 18th birthday. Step-children, similar to birth children, are immediately eligible for permanent residence up to the age of 21.
U.S. citizens may also apply for their children over 21, their parents, and siblings. Adult children over 21, married children, and parents of U.S. citizens are all eligible to obtain residence. Similarly, minor children and spouses of permanent residents are eligible; however, all these categories of relatives go on the priority waitlist, meaning they must wait until the priority date becomes permanent to be eligible to file for a Green Card. The family-based category and country of origin are significant because some countries are oversubscribed, resulting in extended wait times for those on the waitlist to be eligible to apply for residence. When a petition becomes current, the spouse and children in the United States may adjust status if they have remained in lawful status; if not, they will have to return to their home country for visa processing. Certain aliens with old petitions or labor certifications filed before April 30, 2001, may be eligible to adjust pursuant to INA 245(i).
Countries such as Mexico, India, China, and the Philippines often have longer wait times due to being oversubscribed. Annual limits on the issuance of Green Cards and the number of people waiting in each category result in varying and somewhat unpredictable wait times, which can be monitored through the Department of State’s monthly visa bulletin. Certain beneficiary family members will be permitted to bring their own spouses and children with them. However, grandparents, grandchildren, cousins, aunts, uncles, parents-in-law, and other extended family members are not eligible to be directly petitioned for.
If, during the waiting period, the permanent resident petitioner becomes a U.S. citizen, the spouse, and minor children would be eligible to adjust to permanent residence even if the wife and children beneficiaries have overstayed. When a sponsoring permanent resident becomes a U.S. citizen, the quota category moves up, making the alien spouse and children under 21 immediate relatives, and hence immediately eligible for permanent residence. Changes in personal circumstances, such as marriage, affect the priority category and may even remove the individual from the list completely. Individual circumstances, such as previous crimes committed by the alien, may affect rights, and the case should be professionally evaluated.
For foreign nationals who entered the United States without inspection or for those on the priority waitlist who are in the United States but out of status, they may still be eligible based on an immediate family member’s petition but will have to travel outside the United States to obtain the visa at a U.S. Consulate overseas. Departure from the United States can trigger a ban from returning if the individual was in the U.S. unlawfully. Waivers of inadmissibility are available for processing in the United States if the foreign national has a qualifying family member, which is set by statute as a U.S. citizen or permanent resident spouse or parent (see provisional waiver).
The United States federal government now recognizes same-sex couples. This means that a U.S. citizen or permanent resident may apply for their spouse, regardless of their partner’s sex, provided that the marriage is legal in the location it occurred. Federal law recognizes and grants equal rights to same-sex couples. Our firm has special expertise with same-sex couples.
Oltarsh & Associates, P.C. has helped countless families reunite and obtain their residence for over 65 years. We can assist in the most complex cases and strive to make the process as easy and manageable as possible. If you have any questions or would like to petition for a family member or be petitioned, please contact New York family immigration lawyer Jennifer Oltarsh for an evaluation.
