Family-Based Immigration

What agencies are involved in the adjudication of Family based immigration?

  • U.S. Citizenship and Immigration Services (USCIS): USCIS oversees immigration to the United States and processes immigrant and non-immigrant petitions. The USCIS and its local offices will process applications for adjustment of status within the United States.
  • National Visa Center: Post USCIS approval, petitions for family members living abroad are sent to the National Visa Center (NVC) to assist in document organization and final review before sending the matter to the U.S. Department of State.
  • U.S. Department of State: Overseeing all U.S. Embassies and Consulates where family members will apply and be interviewed for their U.S. visa.

Non-immigrant Visas for Family Members

Fiancé Visa

The Fianc(e)é nonimmigrant visa or K-1 visa allows a U.S. Citizen with an overseas fiancé(e) to bring him or her to U.S. to get married. The U.S. citizen and their fianc(e)é must intend to get married within 90 days of the K-1 visa holders’ entry into the U.S. The K-1 visa holder’s children may enter as K-2’s if the visa is approved. In order to qualify for a K-1 Visa – the parties must have met each other at least once in the 2 year period before the filing of the K-1 petition in most circumstances. In addition, the bona fide nature of the relationship and intention to marry must be demonstrated. Fianc(e)é visas are initially completed via Petition (using form I-129F) to the U.S. Citizenship and Immigration Services followed by final processing at the Fianc(e)é’s local Embassy or Consulate. The final stage of the process is the filing of an adjustment of status application to change the Fianc(e)é’s status to Conditional Permanent Resident after getting married.

K-3 Visa

The K-3 visa allows a U.S. Citizen with an overseas spouse (K-3) or child (K-4) to file a petition for them to enter the United States under a temporary visa before they obtain lawful permanent residence status. K3/K4 visas are initially completed via petition to the U.S. Citizenship and Immigration Services followed by final processing at the visa applicant’s local Embassy or Consulate.

Tourist Visas

Family members living abroad can often face significant issues obtaining tourist visas to enter the United States to visit their family. Careful planning is recommended during the process to obtain a B-2 visa as Consulates deny these applications at a remarkably high rate.

Immigrant Visas and Green cards for Family Members

Family members may be sponsored by a U.S. petitioner to join them in the United States. Petitioners can be U.S. Citizens or Lawful Permanent Residents. The family members that may be sponsored include spouses, children, parents, and other qualified relatives. U.S. immigration broadly divides family green card applications between Immediate Relatives and Family Preference Petitions. Generally, these petitions must be accompanied by evidence supporting the family relationship as well as the financial ability of the petitioner to support the family member.

Immediate Relative Petitions

Immediate relatives are considered to be the spouse, parents, and unmarried children (under 21) of U.S. Citizens. There is no annual limit for immediate relative petition and are generally processed initially by petition (using Form I-130) to the U.S. Citizenship and Immigration Services followed by either an Adjustment of Status Application (via Form I-485) to change their status to permanent resident or processing at a U.S. Embassy to obtain an immigrant visa. Immediate relative petitions must always be subject to an interview of the beneficiary by either a local officer or an embassy official. Immediate relative petitions for spouses must contain significant supporting evidence of the the bona fide nature of the relationship. Given the importance that these petitions have for family unity, immediate relative petitions require specific preparation and careful planning.

Family Preference Petitions

Family preference petitions provide a unique avenue to bring a more distant relatives to the United States. U.S. immigration law places a limit on the total number of family preference visas that can be issued each year. Most categories of preference visa are oversubscribed and face delays in final processing. Family Preference Petitions are processed initially by petition (using Form I-130) to the U.S. Citizenship and Immigration Services followed by processing at a U.S. Embassy to obtain an immigrant visa.

U.S. citizens can file a preference visa petition for their:

  • Unmarried Son or daughter;
  • Brother or sister.

U.S. Lawful Permanent Residents can only file an immigrant visa petition for their:

  • Spouse;
  • Unmarried son or daughter.

Removing Conditions on Permanent Residence

Individuals who obtained their Permanent Residence based on marriage to a U.S. Citizen are often subject to conditions on their residence. These conditions must be removed by petition (via Form I-751) to the U.S. Citizenship and Immigration Services. It is critically important that conditional permanent residents timely file the petition to remove the conditions on their residence. These petitions are subject to significant scrutiny and must be prepared carefully. Upon approval the permanent resident’s conditions are removed and they will receive a full ten years permanent resident card. With the lengthy processing time of petitions to remove conditions, it is often recommended that qualifying petitioners apply for citizenship during the process to have both cases completed at the same time by the U.S. Citizenship and Immigration Services.

Re-Entry Permits

Lawful Permanent Residents can reside in the United States indefinitely. However, employment or family obligations can temporarily force a permanent resident to leave the United States temporarily. If a permanent resident will be absent from the United States for significant periods of time it is important, they obtain a re-entry permit to avoid inadvertently losing their status.

Our lawyers understand the desire of many people from around the world to move to America in hopes of joining family members. Our lawyers will handle your case with care and sensitivity. An experienced immigration lawyer will lead you or a loved one through the process of obtaining a visa, a green card, citizenship, or any other immigration benefit you seek. Guidance from a professional will help you determine what’s possible and which option will best fit your needs or that of a family member.

If you have family members who wish to join you in the United States, it’s important to start the process early. Tully Rinckey is able to assist people and organizations world-wide with domestic and international immigration matters. Attorney Michael Freestone has over 8 years of experience representing large corporations and is able to navigate complex immigration issues and analyze the facts and recommend the best course of action.

Future Developments

Numerous proposals to encourage immigrant entrepreneurs have been proposed in the last few years. Proposals have included new visa types, specific employment documents and other types of benefits.