Description

Only a U.S. citizen adult son or daughter, above the age of 21 years old, may be eligible to file a petition on behalf of a migrant parent, also referred to as a “Beneficiary”, residing in the United States or abroad. The U.S. citizen, also referred to as a “Petitioner”, will be required to file independent petitions for each qualifying migrant parent. 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 current residency, method of entry into the United States, prior immigration and/or criminal history. Regardless of the immigration path that 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).

In the situation where the Beneficiary resides abroad, the U.S. citizen will be required to submit the petition to USCIS along all other supporting documentation. The initial documentation submitted must verify the legitimacy of the relationship between the U.S. citizen and the Beneficiary, either by birth, adoption, or parents’ marriages. Once USCIS processes the petition, a Receipt Notice 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. Post-petition approval, USCIS will transfer the case to the Department of State National Visa Center (NVC) for further processing.

At the consular processing stage, additional forms and supporting documentation filings may be generally required in order for an interview to be scheduled at a U.S. embassy or consular office abroad. A less complex process can be anticipated if the Beneficiary does not have any unfavorable factors that may potentially impact a petition approval. The Beneficiary may generally 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 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 is unlawfully in the United States and is not found to be inadmissible to the United States, the Beneficiary may be eligible to simultaneously file Form I-130, Petition for Alien Relative, and Form 485, Application to Register Permanent Residence or Adjust Status, with USCIS. This process will generally facilitate the Beneficiary’s ability to obtain a work authorization document (EAD) and a social security card while the processing of an adjustment of status application is pending. The Petitioner and Beneficiary will be required to attend an interview to obtain adjudication on the family-based petition and adjustment of status application.

A Beneficiary may also qualify for adjustment of status under Section 245(i) of the immigration law even if entry to the United States was initially without inspection. In order to be eligible under 245(i), the Beneficiary must have been physically present in the United States on December 21, 2000, and must have been the principal or derivative beneficiary of a petition/labor certification filed on or before April 30, 2001. It is important to provide substantial documentation to comply with both requirements in order to avoid denial. The Beneficiary will then continue with the process described above and attend an interview appointment to adjudicate all pending applications related to an adjustment of status. Unfortunately, if the Beneficiary remained in the United State post entry without inspection and fails to meet 245(i) requirements, consular processing at a U.S. embassy or consular office abroad may be the most viable option. However, 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 advise the Beneficiary on the right course of action. A thorough review and legal analysis may be required to secure reentry to the United States post a consular processing interview abroad. 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 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 and obtains approval of an adjustment of status with USCIS or an immigrant visa at U.S. embassy or consular office abroad, the Beneficiary may obtain lawful permanent 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

Generally, when a U.S. citizen files a petition on behalf of a migrant parent, no additional derivative dependents may be included as part of the same family-based petition. The Beneficiary’s spouse, children, and parents cannot be included. However, the Petitioner may simultaneously file independent petitions on behalf of any qualifying relative.

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. A petition filed with USCIS by a U.S. citizen on behalf of a migrant parent, may be processed and approved approximately within 12-24 months.

At a consular processing level, post-petition approval, there may be an additional wait time of approximately 12 months prior to obtaining an interview an U.S. embassy and/or consular office abroad. For cases requiring waiver(s) and/or additional filings at the immigration court level, there may be a significantly longer wait time.

The petition process varies depending on USCIS internal policies and beneficiaries 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 best 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 according to the law, immigration bars, and/or restrictions.

Relevant Links List

Citations

Family-based petitions on behalf of a migrant parent 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 migrant parent, supporting documentation will be required to establish relationship and identity. Some of the supporting documentation may include:

Supporting Documents List