The Immigration and Nationality Act (INA) divides family based petitions into “Immediate Relative” immigrant visas and the second is “Family Preference” immigrant visas.

Spouses;
Children under 21 years old;
Adopted orphans; or Parents
of United States citizens who are at least 21 years old. The United States does not set any limits on the number of Immediate Relative
visas it will grant in a given year.

Unmarried children of U.S. citizens who are older than 21 and their minor children; Spouses, minor children, and unmarried older children of Legal Permanent Residents (LPRs); Married sons and daughter of U.S. citizens, as well as their spouses and children; and, finally, Siblings of U.S. citizens and their minor children, provided the U.S. citizen is at least 21 years old.

The United States sets a fiscal year limit on the number of Family Preference visas it will grant, and most of these are allocated to the spouses and minor children of LPRs.

Because the number of individuals eligible to receive Family Preference visas often exceeds the available number of visas, there is often a waiting period in these categories for those who apply. These visas will then be issued in the chronological order in which the visa petitions were applied for by the visa applicant’s U.S. sponsor. In certain categories with many approved petitions compared to available visas, there may be a waiting period of several years or more, before the visa is issued.

The first step in obtaining a family-based immigration visa is the filing of a Petition for Alien Relative(form I-130) by the sponsoring relative with the United States Citizenship and Immigration Service (USCIS).

U.S. citizen sponsors must be at least 21 years old to file a petition for a sibling or a parent, and, although there is no minimum age for other categories of family- based immigrants, a U.S. citizen or LPR must be at least 18 years of age and have a residence in the U.S. before he or she can sign an Affidavit of Support, which is required for an immigrant visa for a spouse and other relatives of U.S. sponsors. In all cases, the U.S. sponsor must maintain a principal residence in the United States, and plan to live there in the foreseeable future.

In addition to these age and residence requirements, a number of other requirements must be met that relate to the production of specific documents, the filing of USCIS forms, and the payment of fees. Among these requirements are:

Applicant must possess a passport that is valid at least 60 days beyond the issuing of the visa.

Applicant must file an Affidavit of Support from the U.S. sponsor, showing that the immigrant has adequate financial support; an affidavit of support can be obtained by a 3rd party if the sponsor doesn’t have sufficient income to exceed the guidelines.

Applicant must supply two 2×2 passport style photographs;Applicant must submit civil documents, such as a birth certificate; marriage certificate (if applicable); military records (if applicable); police records; and so on;

Applicant must complete a medical examination by an approved Immigration panel physician, which will include a record of receiving required vaccinations.

In addition, once the National Visa Center determines that all the required documents have been filed, the visa applicant will undergo an interview at a U.S. embassy or consulate; if the beneficiary is located in the United States, then the interview and processing with take place with USCIS and a local office for the interview.

Applicants for family-based immigrant visas should understand that there is no set time frame in which visas are issued once the application process has been initiated. In addition, as noted above, Family Preference visas can take a lot of time because of the numerical limitation on the number of visas issued, even where applicants have completed all the necessary paperwork. In addition, any application can be delayed by an applicant who fails comply with all of the documentation and other requirements.

As a general rule, while family-based immigration visas are pending disposition by the USCIS, those family members will not be able to obtain a permit to work in the United States or be able visit the United States under some other provision of immigration law. Instead, those family members should remain in their home countries while the visa application is being processed. While there are a few limited exceptions to these general rules, individuals should not attempt to circumvent the process without obtaining the advice of a qualified immigration attorney. A family member’s failure to comply with all legal requirements can jeopardize their opportunity to obtain the immigration visa they are seeking.

Applicants should also be aware that certain conditions and activities may make them ineligible for a visa, even where all of the documentation and other requirements are met. For example, if an individual has been convicted of drug trafficking, has overstayed a previous visa, or submitted any fraudulent documents, they will not be issued a visa. In some cases, however, an applicant may be able to obtain a waiver from a condition of ineligibility.

Consequently, immigrant visa applicants should never make any final travel arrangements, dispose of property, or give up jobs unless and until a visa is issued. An immigrant visa is generally valid for six months from the date it is issued.

Finally, while a visa allows a foreign citizen to travel to the United States and request permission to enter, applicants should be aware that a visa does not guarantee entry. U.S. Customs and Border Protection officials have authority to permit or deny admission. Therefore, travelers should review and discuss with their Immigration attorney this important information about admission and entry requirements before traveling.

The family based immigration visa process, although appearing very simple, can be very complicated and technical to your specific case. We always feel strongly about hiring a qualified Immigration attorney to make sure things are done properly the first time. Once a case is denied, it can be difficult or even not possible to reverse the denial.