Description

A U.S. citizen or lawful permanent resident, also referred to as a “Petitioner”, may be eligible to file a petition on behalf of a migrant spouse, also referred to as a “Beneficiary”, residing in the United States or abroad. Regardless of the Petitioner’s lawful status, the filing of an initial petition is the necessary step to initiate an immigration case with U.S. Citizenship and Immigration Services (USCIS). It is important to note that a family-based petition is composed of a multi-step process and immigration paths required generally vary depending on other important factors related to the Beneficiary’s visa availability, current residence, method of entry into the United States, prior immigration, and criminal history.

In the situation where the Beneficiary is married to a U.S. citizen and remained in the United States after the expiration of a nonimmigrant visa, the Beneficiary may be eligible to file for adjustment of status, a green card, in the United States. This process allows the simultaneous filing of Form I-130, Petition for Alien Relative, and Form 485, Application to Register Permanent Residence or Adjust Status, with USCIS. USCIS will process and adjudicate the case while the Beneficiary remains in the United States. The process is generally less complex and facilitates the Beneficiary’s ability to obtain a work authorization document (EAD) and a social security while the processing of an adjustment of status application is pending. If the Petitioner only holds U.S. lawful permanent status and there’s a current visa available under a ‘Family-Sponsored Preference’, then the Beneficiary may immediately file for adjustment of status with USCIS. An up-to-date Visa Bulletin for all visas availability based on all sponsored preference can be found at the U.S. Department of State – Bureau of Consular Affairs website. Generally, to meet eligibility, the visa must remain available during the month that USCIS receives all corresponding filings.

In the situation where the family-based petition is approved by USCIS and a visa becomes available while the Beneficiary resides abroad, the case may continue processing at the Department of State National Visa Center (NVC). Additional forms and supporting documentation filings may be required for an interview to be scheduled at a U.S. embassy or consular office abroad. A straightforward process can be generally anticipated if the Beneficiary does not have any unfavorable factors that may potentially impact a petition approval. The Beneficiary must generally provide a medical examination and attend a consular processing interview to finalize this multi-step process. Upon an interview case approval and return of a sealed passport containing a valid immigrant visa, the Beneficiary will be able to travel to the United States. An inspection by a U.S. Customs and Border Protection (CBP) officer at a port of entry will establish lawful permanent status in the United States.

In the situation where the Beneficiary remained in the United States post entries without lawful inspection, consular processing at a U.S. embassy or consular office abroad may generally be the most viable option. Certain factors related to the Beneficiary’s criminal history and/or previous immigration history related to unlawful entries into the United States may require additional filings and possibly prolong the consular processing phase. Depending on the compromised factors, additional filings may include waiver(s) and/or motion(s) with agencies such as USCIS or the Executive Office for Immigration Review (EOIR). It is recommended that a licensed attorney and/or an accredited legal representative advice the Beneficiary on the right course of action. A thorough review and legal analysis may be required to facilitate reentry to the United States post a consular processing interview abroad. However, only an approval of an immigrant visa will secure entry to the United States as a lawful permanent resident.

Benefits

The filing or the approval of Form I-130 does not grant the Beneficiary lawful status or an immediate immigration benefit in the United States. However, once the Beneficiary successfully navigates through the multi-step process with the corresponding agencies, the Beneficiary will then be eligible to obtain lawful permanent and/or conditional status in the United States. Conditional status is generally granted on a conditional basis and the Beneficiary’s green card is only validated for a period of 2 years. An additional process is required to remove the conditions prior to expiration to obtain lawful permanent resident status.

The Beneficiary may also become eligible to apply for an employment authorization document (EAD) and a social security number pursuant to a pending adjustment of status application with USCIS.

Green cards are generally produced by USCIS upon approval of an adjustment of status application interview in the United State. However, during consular processing, green cards are generally produced upon inspection at a port of entry and lawful entry to the United States. Green cards are generally mailed to the address of preference detailed on Form, DS-260, Immigrant Visa Electronic Application.

Derivative Dependents

A U.S. citizen may file a family-based petition on behalf of a Beneficiary while in compliance with immigration laws related to marriage legality. However, there is no derivative status for biological, step and/or adopted children under the same petition. A U.S. citizen is generally required to file separate petitions for Beneficiary and migrant children. On the contrary, a U.S. lawful permanent resident may file a petition and include a Beneficiary and migrant children, as long as children are under the age of 21 years old.

Process Description

A family-based petition is a complex multi-step process that involves agencies like USCIS, NVC, U.S. embassy or consular office abroad as well as CBP. The initial part of a family-based petition is to submit an application along with all supporting documentation. Based on the Petitioner’s lawful status, either a U.S. citizen or lawful permanent resident, the processing times may vary significantly as detailed above.

A petition filed by a U.S. citizen on behalf of a Beneficiary, immediate family member, holds priority preference. Indeed, immigrant visas for immediate relatives of U.S. citizens are unlimited and are often available for faster processing. Generally, a petition filed with USCIS may be processed and approved approximately within 12 months. On the contrary, petitions filed by U.S. lawful permanent residents on behalf of a Beneficiary endure a significant longer processing time. Visas are not immediately available as the petition holds second preference level. Generally, a petition filed with USCIS may be processed and approved approximately under 24 months.

The petition process varies depending on USCIS internal policies and migrants are encouraged to visit USCIS’ website to obtain up-to-date estimated case processing times.

Unfavorable Circumstances

For some individuals, immigration is a complex process to navigate through due to the strict requirements and interpretation of the law. A Beneficiary’s criminal history and/or previous immigration history related to unlawful entries, prior deportations, and/or previous immigration benefit denials, may negatively impact a petition. Although some factors may not necessarily cause the denial of a petition, it is recommended to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish the best course of action. A licensed attorney may be able to assess the Beneficiary’s circumstances accordingly to the law, immigration bars, and/or restrictions.

Relevant Links List

Citations

Family-based petitions on behalf of a Beneficiary are processed and adjudicated under strict eligibility. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable law and regulations include:

Citations List

Related Forms List

Supporting Documents

For an initial filing of a family-based petition on behalf of a Beneficiary, supporting documentation will be required to establish relationship and identity. Some of the supporting documentation may include:

Supporting Documents List