I. Understanding Family Based Petitions

Family-based petitioner are limited by statute to a certain number of persons each year. In recent years, the number of immigrants allowed under family sponsorship was 480,000 per year. There are two main categories for family-based immigrant visas:

immediate relative of a U.S. citizen; or

under one of four preference immigrant visas.

There is no cap on the number of visas allowed under the "immediate relative" category. However, the number of immediate relatives are subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year.

If an applicant does not qualify as an immediate relative, they may apply under one of four categories ranked in order of preference. Since numerical caps apply to these categories, visa petitions are ranked chronologically based on a "first come - first serve basis." Because of the numerical cap, there are long waiting periods to obtain a visa in most of the family-based immigrant categories. The date of the application is called a priority date.

The type of visa category applicable to an intending immigrant in the four available areas of preference depends upon two factors:

whether the person sponsoring the immigrant is a U.S. citizen or a lawful permanent resident and;

the closeness and dependency of the relationship between the immigrant and the United States relative.

II. Who is a United States Citizen?

Generally speaking, any person born in the United States has a claim to U.S. citizenship. Persons born in countries other than the U.S. may have a claim, under United States law, to U.S. nationality if either parent was born or naturalized in the U.S., or either parent was a U.S. citizen at the time of applicant's birth. However, it is important to remember to confirm your citizenship with a consular office before filing a family based petition. Moreover, you should wait until your visa petition has been approved before acting in reliance on it. All to often, an applicant will make any final travel arrangements, dispose of assets, or leave existing jobs only to discover that their petition has been denied.

III. Non-Preference: Immediate Relatives

Immediate Relatives may immigrate to the United States on a family based petition. This is the most attractive category since there is no limitation to the number of immigrants who may qualify under this category and, in most cases, visa numbers are immediately available for these individuals to apply for lawful permanent residence. Immediate Relatives include spouses, children and parents of U.S. citizens. However, some additional definitions and clarifications are required:

Age of Citizen: A US citizen must be at least 21 years of age in order to sponsor his or her parents.

"Child" Defined: Children are defined as natural-born (legitimate), adopted, step-children, or legitimated.

Widows and Widowers: A Widow or a widower of a US citizen qualifies under this category so long as the person submits a petition within two years death of their spouse and a remarriage has not occurred

Petitioning Parents:. In order for a parent to petition for a child, the child must be unmarried and under the age of 21 to qualify.

Petitioning Children: In order for a child to petition for their parent, the child must be at least 21 years of age.

Petitioning Spouses: If a couple has been married less than two years at the time the visa application is submitted to the INS, the immigrant will be granted a two-year period of "conditional residence" status.

Condition Removal: To remove the conditions, a second application must then be submitted to the INS and the couple is required to attend a second interview to establish the validity of their marital relationship.

Validity of Marriage: The validity of the marriage is best established by demonstrating that the parties cohabitated, purchased assets jointly, and commingled income in joint accounts. It is important that the second application is submitted before expiration of the conditional status.

Death of citizen spouse- Divorce - Abuse: The INS has special procedures for situations where a spouse dies, the parties divorce or domestic abuse occurs which exposes the immigrant extreme emotional and/or physical abuse at the hands of his/her U.S. citizen spouse. Under these circumstances, the immigrant may submit an application to remove the conditions on his or her status which will be approved only if it is demonstrated that termination of immigrant's status and deportation would cause extreme hardship. Since such petitions are rarely approved it is extremely important to contact an experienced immigration attorney.

IV. Preference One (FB-1)

Unmarried sons or daughters (21 or older) of US citizens.

V. Preference Two (FB-2)

Spouses and children (under 21) of lawful permanent residents.

Unmarried sons and daughters (21 or older) of lawful permanent residents.

VII. Preference Three (FB-3)

Married sons or daughters of US citizens and their unmarried children under 21.

VIII. Preference Four (FB-4)

Brothers or sisters of US citizens, provided that the citizen is 21 or older and their unmarried children are under 21.

IX. Priority Dates

If the number of applicants exceeds the number of visas available under a particular category, that category is considered oversubscribed. As a result, the applications will be processed and visas issued in the chronological order in which the petitions were filed until the numerical cap has been reached. The filing date of the petition is called the applicant's "priority date." A visa cannot be issued until the priority date is reached. This means that there may be a lengthy waiting period. Sometimes that period may exceed several years.

X. Application Process

Step One: A sponsoring US citizen or permanent resident must complete and file an I-130 Petition for an Alien Relative with supporting documentation. Documentation that is necessary includes:

Birth or baptismal certificates for both the sponsor and the foreign relative if they are brother and sisters with the same parents;

A Marriage certificate for spousal applications;

Divorce papers if there was a preceding marriage or a waiver is sought;

Form G-325 which requests biographical information for both an alien spouse and the sponsoring U.S. citizen

Two photos of an alien spouse;

Evidence of U.S. citizenship and Form I-551 Alien Registration Receipt Card;

A filing fee of $110 (cash or US postal money order).

If proper documentation is not available, secondary evidence must be presented. This may take the form of sworn affidavits or other documentation attesting to the existence of the claimed family relationship.

Step Two: After the I-130 Petition is approved by the INS, a Form called an I-797 -Notice of Action will be sent to the National Visa Processing Center. This information will then be forwarded on to the petitioning party and the appropriate U.S. consulate office in the country where the alien relative must apply for his/her immigrant visa.

Step Three: The alien relative must contact the US consulate in his or her country and follow instructions regarding the process including submitting any additional information that is necessary. This usually will include Form 179 - a summary of biographical data and the following documents:

Passport;

Birth certificate;

Photographs of the applicant (usually four);

Form I-864 Affidavit of Support from Petitioning party;

Proof of Marriage and any former marriages;

Documentation of any divorce.

Any foreign documents must be accompanied by a certified English translation.

Step Four: Every applicant must have a complete medical examination performed by a physician before applying at the consulate for an interview.