I-130 Family Petitions, Adjustment of Status and Consular Processing

Family-based petitions are one of the ways in which foreign-nationals can receive green cards or permanent residency in the United States. The petition designated for Family Petitions is form I-130.

Only U.S. citizens and Lawful Permanent Residents can sponsor their family members through a qualifying family relationship. This has to be first degree relationships, such as spouses, children, parents and siblings. U.S. citizens, whether by birth or naturalization, can sponsor their spouses, children, parents and siblings. Lawful Permanent Residents can only sponsor their spouses and unmarried children.

Family petitions for immediate relatives have no limits set by the immigration law but there is a limit on all other family-based categories. Since Congress did not raise the limit in decades, and the U.S. population has more immigrants now than ever, there are backlogs from several years to decades in many of the family-based petitions. Therefore, before filing a petition in the preference categories, you should analyze your case with an experienced immigration attorney, because there may be another option instead of waiting many years.

I-130 Immediate Relative Petitions

Immediate Relatives include: parent, spouses or children U.S. citizens. In this case, the children must be under 21 years old and unmarried.  The U.S. citizen has to be over 21 in order to sponsor a parent for a visa. Individuals in this category may immediately apply for permanent resident status.

People who qualify for the Immediate Relative category and lawfully admitted to the United States with a visa or through the visa waiver program or ESTA are eligible to apply directly for a green card through the Adjustment of Status process.  Those immediate relatives residing outside of the United States or those who entered the U.S. illegally usually immigrate to the United States through Consular Processing. It should be noted that the I-130 petition is only one part of the process to becoming a permanent resident. In order to complete the process, one must complete an I-485, Application for Adjustment of Status, if they are inside the United States. This can be filed concurrently for immediate relatives. Alternatively, they can choose to complete Consular Processing, if they are living abroad or came to the U.S. illegally.

Spouses of U.S. citizens who are filing for Adjustment of Status are required to go through a personal interview at a USCIS local office. The interview is conducted with both spouses present, and many documents will have to be submitted in order to prove the marriage is legitimate. Since there is a high percentage of fraud in marriage applications, USCIS officers are trained to investigate the validity of the marriage in these interviews.

I-130 Preference Categories

There is an annual limit on the immigrant visas that can be issued in each family-based visa preference category. The Visa Bulletin is used to monitor usage of immigrant visas and is issued by the Department of State each month. The Visa Bulletin lists each family-based category and country-specific categories that determine which priority dates can file for the Adjustment of Status or complete their Consular Process to get a green card.

The first family category, or Family 1st, is for children of U.S. citizens who are older than 21. The second family category is divided into two categories, F2A is for spouses and unmarried children under 21 of Lawful Permanent Residents and F2B is for children of Lawful Permanent Residents who are older than 21 but unmarried. There is no category for married children of Lawful Permanent Residents. If the child gets married before the parent naturalizes, their petition may be automatically revoked and lost. F3 is for married children of U.S. citizens and F4 is for siblings of U.S. citizens. Sometimes it is possible to jump from one category to another while keeping your place in line, also known as priority date. For example, if you are an unmarried child of a U.S. citizen and later marry, you can move from family 1st to 3rd. You should also know that the family preference categories give derivative green card status to any spouse and minor children that will immigrate with you to the U.S.

The backlog will vary from category to category and also will vary according of the country of nationality of the visa applicant. For example, Mexico and Philippines are two countries that heavily use the family sponsorship therefore the backlogs for citizens of these countries are much longer than others.

Remember that the I-130 petition is only one part of the process to becoming a permanent resident. In order to complete the process, you must either complete an I-485, Application for Adjustment of Status, if you are inside the United States in valid status, or complete Consular Processing, if you are living abroad or came to the U.S. illegally. In the family preference categories, apart from a few exceptions, you will have to maintain a lawful legal status throughout your stay in the U.S., otherwise you may be ineligible from receiving a green card even if you have an approved I-130. Filing the I-130 does not give you legal status or authorization to stay in the United States.

Consular Processing

Consular Processing allows immigrants residing outside of the United States to obtain their permanent resident status. In Consular Processing, you will first have to work with the Department of State’s National Visa Center or NVC in order to complete your file for the consulate. The final step will be your interview at the U.S. consulate or embassy in your country of nationality or residence.

Once your I-130 immigrant petition is approved, you are required to complete initial processing for their visa by submitting a series of documents and applications to the NVC. The NVC verifies that all required documents are submitted and proceeds with scheduling you for an immigrant visa interview at the designated U.S. consulate.

Upon approval of the immigrant visa, individuals who complete the Consular Process are issued an immigrant visa in their passport, which allows them to immediately enter the United States. Once you enter the United States, the immigrant visa is endorsed into a permanent resident card. This means your status immediately changes and you will become a permanent resident immediately upon your admission to the United States.

If you need to obtain a green card for yourself or a family member and would like to learn more about how to file for your case, please give us a call. Our team of expert immigration attorneys will work with you to develop the best strategy to deliver you the results you need as fast as possible.