Description

Only a U.S. citizen, also referred to as a “Petitioner”, may be eligible to file a petition on behalf of a migrant sibling, also referred to as a “Beneficiary” residing in the United States or abroad. Currently, there is a lengthy wait time for a visa to become available to permit the Beneficiary and any qualifying derivative to obtain legal status in the United States. A petition filed on behalf of a sibling falls under the fourth (4^th) family-sponsored preference class of the Immigration and Nationality Act (INA), allotting visas to brothers and sisters of adult U.S. citizens. Unfortunately, migrant siblings may experience a prolonged wait time, over a decade, prior to a visa becoming available as there are only a limited number of green cards issued per year. In certain countries that adhere to a visa cap, the wait time may be longer due to insufficient visas allocated per year.

A family-based petition is composed of a multi-step process and immigration paths may vary depending on important factors related to the Beneficiary’s visa availability, current residence, method of entry into the United States, prior immigration, and criminal history. Regardless of the immigration path that the Petitioner and Beneficiary may follow, the filing of an initial petition is a necessary step to initiate an immigration case with U.S. Citizenship and Immigration Services (USCIS).

Immigration recognizes a “sibling” as a biological brother/sister, stepsibling and/or adopted sibling as long as at least one (1) common parent is shared. In the circumstances where the Petitioner is interested in sponsoring an adoptive and/or stepsibling, certain requirements must have been met in order to meet eligibility. If a relationship is established through adoption, the Beneficiary must have been adopted prior to reaching sixteen (16) years of age. If a relationship as stepsibling is established via marriage of parents, the legal marriage must have occurred prior to the Beneficiary reaching eighteen (18) years of age. It is important to ensure eligibility to avoid further delays and/or jeopardizing years of wait time to obtain adjudication. It is highly recommended to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish the best course of action.

To initiate the petition process, the U.S. citizen is generally required to submit the petition to USCIS along all other supporting documentation, regardless of the Beneficiary residing in the United States or abroad. The initial documentation submitted must verify the direct relationship between U.S. citizen and Beneficiary, either biologically or via adoption and marriages to stepparents. Once USCIS processes the petition, a Notice of Receipt will be mailed to the U.S. citizen’s address of record. It is very important to safely retain record of this notice as it includes important information regarding receipt number, priority date, class request as well as general information for the Petitioner and Beneficiary. Post-petition approval, USCIS will transfer the case to the Department of State National Visa Center (NVC) Consular Electronic Application Center (CEAC) for further processing. Although account registration may be possible, no further action may be required for a prolonged period of time unless a visa becomes available.

Currently, if the Beneficiary resides abroad and a visa becomes available, post-petition approval, the case may continue processing with the NVC. Additional forms and documentation filings may be required in order 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 may be required to obtain a medical examination and attend a consular processing interview to finalize this multi-step process. Upon case approval and return of a sealed passport containing a valid visa, the Beneficiary will be able to lawful enter the United States under an immigrant visa. An inspection by a U.S. Customs and Border Protection (CBP) officer at a port of entry will establish a legal entry and lawful permanent status in the United States. As the immigration law and procedures continue to evolve, the Beneficiary may experience additional requirements and/or procedures over time before the petition reaches the consular process phase.

Currently, if the Beneficiary is legally in the United States and a visa becomes available, the Beneficiary may be eligible to file for adjustment of status in the United States with USCIS. The process will facilitate the Beneficiary’ ability to obtain a work authorization document (EAD) while the processing of a green card is pending. However, in the situation where the Beneficiary remained in the United States post entries without legal inspection, consular processing at a U.S. embassy or consular office abroad may be the most viable option once a visa becomes available. Additional services may be required that include the filing of a Waiver(s) and/or motion(s) before the Executive Office of Immigration Review (EOIR). It is recommended that the Petitioner and the Beneficiary be guided and/or supported by a licensed attorney and/or an accredited legal representative prior to any action taken at a consular process level.

If a waiver is recommended, the Beneficiary may require a qualifying family relative such as a U.S. citizen or permanent resident spouse and/or parents to be eligible. With legal representation, the Beneficiary will be able to verify qualification for a waiver to be able to secure departure from the United States and be able to attend an interview abroad for further processing. Upon approval of an immigrant visa, the Beneficiary will be able to re-enter the United States under lawful permanent residence and obtain a green card.

Benefits

The filing or the approval of the petition does not grant the Beneficiary legal status or an immediate immigration benefit in the United States. However, once the Beneficiary successfully navigates through the multi-step process (over the course of a decade) and obtains approval of an immigrant visa at U.S. embassy or consular office abroad, the Beneficiary will obtain lawful permanent status.

Green cards are produced upon inspection at a port of entry and lawful entry to the United States. Green cards are mailed to the address of preference detailed on Form, DS-260, Immigrant Visa Electronic Application. The Beneficiary may also become eligible to receive a social security number pursuant to an approved adjustment of status application or consular processing.

Derivative Dependents

A U.S. citizen may file a family-based petition on behalf of a Beneficiary and include the Beneficiary’s unmarried sons and daughters. The sons and daughters will be listed as part of the petition as dependents. However, at the time the Beneficiary consular processes and is granted the lawful permanent resident, the unmarried sons and daughters cannot have reached 21 years of age. Unfortunately, due to the prolonged wait time for a visa becoming available, a majority of dependents may age out and/or impact their marital status.

Process Description

A family-based petition is a multi-step process that involves agencies like the USCIS, Department of State National Visa Center (NVC), U.S. embassy or consular office abroad as well as U.S. Customs and Border Protection (CBP). A petition filed with USCIS by a U.S. citizen on behalf of a Beneficiary, may be processed and approved within 12-24 months. Post-petition approval requires a significant wait time. The lack of visa availability will halt the petition process for at least a decade. Petitioners and/or Beneficiaries may visit USCIS’ webpage and use USCIS tools and resources to obtain up-to-date 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 best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish best course of action. A legal attorney may be able to assess the Beneficiary’s circumstances according to the law, immigration bars, and restrictions. Additionally, over the course of a decade, significant changes may apply to the immigration law and/or procedures.

Relevant Links List

Citations

Family-based petitions on behalf of a migrant sibling are processed and adjudicated under strict eligibility to verify relationship. 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 laws and regulations include:

Citations List

Related Forms List

Supporting Documents

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

Supporting Documents List