Who can file visa petitions for family members?
U.S. citizens and “lawful permanent residents” (green card holders) can petition for certain family members.
If the family member is outside the U.S., two steps are required:
- USCIS (United States Citizenship and Immigration Services) must first approve the petition; and then
- The immigrant visa is issued by a U.S. consulate abroad, which usually then sends it to the applicant.
If the family member is already in the U.S., the entire process may sometimes be completed in the U.S., without travel. When a person obtains a green card in the U.S., it is called an “adjustment of status.”
Which relatives are eligible for visas?
There are two classes of relatives for whom you can request visas: immediate relatives, and those who are in “preference categories.”
Immediate Relatives (no limit on the number of visas for these family members)
- Spouses of U.S. citizens, including same-sex spouses
- Parents of U.S. citizens, where the citizen is at least 21 years old
- Children of U.S. citizens, where the child is under 21
- Other Relatives (restricted number of visas for these preference categories)
- Unmarried sons or daughters of a U.S. citizen
- Married sons or daughters (including spouses and children) of a U.S. citizen
- Spouse and children (under 21) of a lawful permanent resident
- Unmarried sons or daughters (over 21) of lawful permanent resident
- Brothers or sisters (including spouses and children) of a U.S. citizen
How many visas are available for the preference categories?
A limited number of visas are available for each of these categories, and a new block of visas becomes available on October 1st of each year. There are different waiting periods for each category, and it often takes years for these visas to be available, especially if your family member is from Mexico, China, India or the Philippines. The State Department publishes the Visa Bulletin each month, indicating how long the wait is.
Who can “Adjust Status” in the U.S?
Some relatives can become permanent residents of the U.S. without leaving the country. This means that they “adjust status” while in the U.S.
Immediate relatives who entered the U.S. with a visa or other lawful permission are generally eligible to adjust status. Relatives who entered the country unlawfully are sometimes eligible to adjust under very specific circumstances.
What is the “waiver” process for a relative who entered the U.S. unlawfully?
Since March 2013, immediate relatives who entered the U.S. unlawfully – and have been here for 180 days or more – may be eligible to file a waiver and stay in the U.S. while USCIS processes the waiver request. The relative will usually have to leave the U.S. and attend an appointment at the U.S. Consulate in their home country.
See the Provisional Waivers page for more information on this process.
I’ve heard that section 245(i) of the Immigration and Naturalization Act can be helpful. What is it?
Immediate relatives and preference category immigrants who entered the U.S. “without inspection” – that is, illegally – may be “grandfathered” under section 245(i) if a relative or an employer petitioned for them before April 30, 2001. Derivatives beneficiaries on such a petition are also covered. If you think you may qualify under 245(i), you should consult with attorney Camille Cook immediately.