Family Based Immigration

Family Based Immigration directly unites family members by allowing relatives to immigrate to the United States.  There are multiple categories which allow one to bring their relatives to the United States.  For each category, the wait time to immigrate to the United States varies by several years.  It is important to know which category your relative fits so that you may accurately estimate eligibility for and wait time for an immigrant visa.

Family Based Immigration Categories:

Immediate Relative-Spouses, Children (under 21) and Parents of U.S. Citizens

1st Preference Category-Unmarried Sons and Daughters over the age of 21 of U.S. Citizens

2nd Preference Category-Spouses, Children and Unmarried Sons and Daughters of Lawful Permanent Residents (Green Card holders)

3rd Preference Category-Married Sons and Daughters of U.S. Citizens

4th Preference Category-Brothers and Sisters of Adult U.S. Citizens

Immediate Relatives of U.S. Citizens:  The Immediate Relative category is by far one of the fastest pathways to permanent residence in the U.S.

Immediate Relatives include:

  • Spouse of a U.S. Citizen;
  • Children of a U.S. Citizen who are under the age of 21 ;
  • Step-children of a U.S. Citizen; and
  • Parents of a U.S. Citizen.

Immediate Relatives who are Inside the U.S. in lawful status:

An Immediate Relative who is inside the U.S. upon filing the immigrant petition and who is in lawful status (i.e. entered on a valid visa and has an unexpired Form I-94) is eligible to file an Adjustment of Status to that of Lawful Permanent Resident.  A spouse of a U.S. Citizen who was inspected and admitted to the U.S., is eligible to adjust status even if their I-94 is expired.

Example:   Ivona is a U.S. Citizen. Her mother enters the U.S. without intent to immigrant.  Ivona’s mother has come to the U.S. every year for five years to visit and stays about 4 months each visit.  Ivona has never discussed with her mother the possibility of becoming a permanent resident.   However, during the visit Ivona grows worried about her aging mother and speaks to her about getting a Green Card.  Her mother agrees and together they visit Ivona’s immigration attorney.  Ivona’s mother is eligible to adjust status to that of Permanent Resident.  Ivona files an immigrant petition on her mother’s behalf.  Because her mother’s I-94 is still valid and her stay has not expired, her mother is also eligible to file an Adjustment of Status.  Within 4-6 months of filing the case Ivona’s mother has a Green Card.

Immediate Relatives who are Outside the U.S.:

Immediate Relatives who are outside the United States when their petition is filed will, in most circumstances, process at the U.S. Consulate serving their home country and region.  The process requires the U.S. Citizen petitioning relative to file an immigrant petition on behalf of a spouse, child (under 21), or parent.  Once the immigrant petition is approved by the Department of Homeland Security, the approval is sent to the National Visa Center (NVC).  The National Visa Center is the U.S. Department of State office charged with reviewing the immigrant visa packet before the packet is sent to the U.S. Consulate.  The NVC process requires submission of original identification documents, police records, and the Affidavit of Support, among others

The Affidavit of Support

A U.S. Citizen or Lawful Permanent Resident petitioning for a relative to come to the United States or adjust status to Lawful Permanent Relative must demonstrate that they are able to support their relative to ensure that the relative does not become a public charge.  Minimum annual salary and asset requirements must meet the Poverty Guidelines outlined in Form I-864P.

Petitioner Income below the Poverty Line

If you do not meet the minimum annual salary or have assets to replace that salary, you may need a joint sponsor who is willing to sponsor your relative.   The Joint Sponsor must be willing to complete a Form I-864 and supply supporting evidence such as taxes, recent pay slips and an employment verification letter.

What obligations do I have as a sponsor or joint sponsor?

Whether you are the primary sponsor or the joint sponsor sponsoring an immigrant, by signing the Form I-864 you are agreeing to very specific obligations under the Immigration Nationality Act and other Federal laws.  The obligations are detailed on the Form I-864 itself.  If an intending immigrant becomes a Permanent Resident based on an I-864 you have signed, the following your responsibilities include:

  • “Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size (100 percent if you are the petitioning sponsor and are on active duty in the U.S. Armed Forces and the person is your husband, wife, unmarried child under 21 years old.)”
  • “Notify USCIS of any change in your address, within 30 days of the change, by filing Form I-865.”
  • “Until your obligations under the Form I-864 terminate, your income and assets may be considered (“deemed”) to be available to that person, in determining whether he or she is eligible for certain Federal means-tested public benefits and also for State or local means-tested public benefits, if the State or local government’s rules provide for consideration (“deeming”) of your income and assets as available to the person.”

What If I Do Not Fulfill My Obligations?

If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.

If a Federal, State or local agency, or a private agency provides any covered means-tested public benefit to the person who becomes a permanent resident based on the Form I-864 that you signed, the agency may ask you to reimburse them for the amount of the benefits they provided. If you do not make the reimbursement, the agency may sue you for the amount that the agency believes you owe.

If you are sued, and the court enters a judgment against you, the person or agency that sued you may use any legally permitted procedures for enforcing or collecting the judgment. You may also be required to pay the costs of collection, including attorney fees.

If you do not file a properly completed Form I-865 within 30 days of any change of address, USCIS may impose a civil fine for your failing to do so.


When Will These Obligations End?

Your obligations under a Form I-864 will end if the person who becomes a permanent resident based on a Form I-864 that you signed:

Becomes a U.S. citizen;

Has worked, or can be credited with, 40 quarters of coverage under the Social Security Act;

No longer has lawful permanent resident status, and has departed the United States;

Becomes subject to removal, but applies for and obtains in removal proceedings a new grant of adjustment of status, based on a new affidavit of support, if one is required; or Dies.

Note that divorce does not terminate your obligations under this Form I-864.

Your obligations under a Form I-864 also end if you die. Therefore, if you die, your Estate will not be required to take responsibility for the person’s support after your death. Your Estate may, however, be responsible for any support that you owed before you died.

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Scarborough Law, L.L.C.
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Scarborough Immigration Services Pvt. Ltd.
The Nest, RC Junction
Trivandrum-6950 35 India
Ph. : +91 98955 98755