As a relative of either a citizen of the U.S. or a lawful permanent resident, Certain aliens enjoy a variety of rights and privileges to come to the United States in immigrant visas. Family-Based Immigration ranges from bringing in immediate relatives of U.S. citizens (spouse and minor, unmarried children and parents) to “preference” relatives in several categories (unmarried sons and daughters of green card holders and U.S. citizens, married sons and daughters of citizens, and brothers and sisters of U.S. citizens).
Marriages within the United States
The U.S. citizen needs to submit a visa petition to the appropriate local INS office or the Regional Service Center to prove that the marriage was not entered into for the sole purpose of obtaining a green card. (Effective since November 29, 1996, the application is now submitted to the INS Regional Service Center for processing for Maryland residents, and to the local INS office for everyone else.) The burden is on the parties to establish the bona fides of the marriage.
At the same time, the non-citizen spouse should submit an application for adjustment of status, green card-type photographs, and numerous other INS forms, plus INS filing fees.
The INS schedules an interview within 2 to 18 months, depending on the location. The Service Centers take about 90 days for the employment card (EAD) and local office processing times for EADs range from 1 to 90 days. If the interview occurs within 90 days, it is possible that no work or travel permit will be issued.
Marriages Outside the United States
The non-citizen spouse usually must remain in her/his country until s/he obtains the green card. On the other hand, if the parties are not yet married, then the foreign fiancé/e can enter the U.S. on the K-1 fiancé/e visa but is required to get married to the sponsoring U.S. citizen and file the adjustment of status application package for the green card within 90 days of entry.
If the marriage takes place abroad, then after the marriage, the citizen spouse submits a visa petition to either the appropriate INS office or directly to the U.S. embassy or consulate in the country where the non-citizen spouse lives. Embassies / consulates may impose various restrictions on who is eligible to file petitions there. Depending on the location, it could take several months to obtain the approval.
Once the visa petition has been approved, the non-citizen spouse will receive a packet from the National Visa Center (NVC). The packet will inform that spouse of the various documents required at the immigrant visa interview abroad and the packet will also include documents requesting biographic data that need to be completed and forwarded to the U.S. embassy or consulate abroad. The process can take a further three to six months.
In order to expedite the immigrant visa process after filing the visa petition (I-130), the U.S.-citizen spouse can also file a K-3 petition. As with the immigrant visa process, NVC notifies the consulate of the approval of the K-3 petition. Often the spouse is able to come to the U.S. on the K-3 in only half the time it would take to wait for the whole immigrant visa process to be completed. For more information on the K-3, please see our Non-immigrant Visas.
In order to avoid a long separation, sometimes the spouse returns to the U.S. after marriage, depending upon the type of visa for which s/he may qualify, and files the necessary applications only after they are both in the United States. However, depending upon what type of visa is used, it is common for the INS to stop the non-citizen spouse at the border and exclude him/her from entering the U.S. on the ground that s/he is an intending immigrant. Since spouses of U.S. citizens are considered “immediate relatives” under immigration laws, they are exempt from all numerical quota limitations for the green card, so there is no waiting list.
If the marriage is less than two years old when the non-citizen spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the end of the two-years.
If the marriage has terminated by reason of divorce, death of the citizen spouse, or spousal abuse, the non-citizen spouse may apply for a waiver of the joint petition requirement.
Immediate relatives of U.S. citizens are: spouses, children, and parents. In this case “children” are defined as unmarried and under 21 years of age. For parents of a U.S. citizen, the petitioning son or daughter must be at least 21 years of age.
The definition of “immediate relative” includes widows of U.S. citizens, provided that the alien was the spouse of the citizen for at least 2 years prior to the citizen’s death and was not legally separated from the citizen at the time of his/her death.
NB : The petition for permanent residence has to be filed within 2 years after the citizen’s death and before re-marriage.
The advantage of qualifying as an immediate relative is that there is no numerical limitation or backlogs for sponsorship.
There are four preference categories for limited family-based immigration:
1st Pref – unmarried sons and daughters (any age) of U.S. citizens,
2nd Pref – spouses and unmarried sons and daughters of lawful permanent residents,
3rd Pref – married sons and daughters of U.S. citizens,
4th Pref – brothers/sisters of U.S. citizens.
At present the waiting time frames for the 4th preference siblings of U.S. citizens is approximately 10-12 years!! The Visa Bulletin, which is released each month by the U.S. State Department, provides the cut-off dates in each of the categories we have outlined above.
For those wishing to adopt from any country, it is a good idea to consult with an attorney who concentrates in adoption law in the state of residence of the interested U.S. citizen parents. It is also wise to consult an immigration attorney or an immigration agency that can assist in international adoptions.