Family-Based Immigrant Visas (Adjustment of status, consular processing)
U.S. citizens and lawful permanent residents may file a petition for certain family members to receive their "green card," which will give them lawful permanent residence in the U.S. Several different categories exist under U.S. regulations, each with its own specific set of requirements and processes.
With the exception of immediate relatives of U.S. citizens, the U.S. government has placed a cap on the number of visas allowed in each category per year. Depending on your country of origin and your relationship with the U.S. citizen or lawful permanent resident, you may have to wait several years or longer before a visa becomes available. Visas are distributed according to the U.S. Department of State's monthly visa bulletin.
Visas can be obtained for family members living abroad, or in some instances, for family members already present in the U.S. The application process changes depending on where the family member is living.
Please click the links before for more information on the types of visas available and the application process.
With the exception of immediate relatives of U.S. citizens, the U.S. government has placed a cap on the number of visas allowed in each category per year. Depending on your country of origin and your relationship with the U.S. citizen or lawful permanent resident, you may have to wait several years or longer before a visa becomes available. Visas are distributed according to the U.S. Department of State's monthly visa bulletin.
Visas can be obtained for family members living abroad, or in some instances, for family members already present in the U.S. The application process changes depending on where the family member is living.
Please click the links before for more information on the types of visas available and the application process.
For information on visas available for fiancé(e)s, please click here.
Types of Visas Available
With the exception of the first category below (Immediate Relative of a U.S. Citizen), all family members seeking to obtain a visa will have to wait until their visa becomes "current." This means that they may have to wait several years before receiving their visa and immigrating to the U.S.
Immediate Relative of a U.S. Citizen
Because no cap is associated with this type of visa, U.S. citizens can immediately petition for their families. A U.S. citizen can petition for the following family members:
Unmarried Sons and Daughters of U.S. Citizens (i.e., children over 21)
U.S. citizens can petition for their unmarried sons and daughters to obtain their green cards.
The minor children of sons and daughters may also be included on the application.
Currently there is a long waiting list for unmarried sons and daughters of U.S. citizens.
Family Members of Lawful Permanent Residents
A Lawful Permanent Resident (LPRs) can petition for the following family members:
Among family members of LPRs, the waiting time is longer for unmarried sons and daughters than it is for spouses and children under 21. It is possible for a son or daughter to receive his or her green card in the future even if he or she is then over 21. Because of this, it is important to file the application before the child's 21st birthday if possible. Our office can provide more specifics on this process.
Married Sons and Daughters of U.S. Citizens (i.e., children over 21)
U.S. citizens can also petition for their married sons and daughters.
Spouses and minor children of married sons and daughters may also be included in the application.
A long waiting list currently exists for potential visa applicants in this category.
Brothers and Sisters of U.S. Citizens
If a U.S. citizen is over 21, he or she can petition for his or her brothers and sisters.
Spouses and minor children of beneficiaries in this category may also be included in the application.
A long waiting list currently exists for potential visa applicants in this category.
Note: Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.
Immediate Relative of a U.S. Citizen
Because no cap is associated with this type of visa, U.S. citizens can immediately petition for their families. A U.S. citizen can petition for the following family members:
- Spouse
- Unmarried children under 21 (including step-children and adopted children)
- Orphans adopted abroad (or about to be adopted)
- Parents (if the U.S. citizen is 21 or older)
Unmarried Sons and Daughters of U.S. Citizens (i.e., children over 21)
U.S. citizens can petition for their unmarried sons and daughters to obtain their green cards.
The minor children of sons and daughters may also be included on the application.
Currently there is a long waiting list for unmarried sons and daughters of U.S. citizens.
Family Members of Lawful Permanent Residents
A Lawful Permanent Resident (LPRs) can petition for the following family members:
- Spouse
- Children under 21
- Unmarried Sons and Daughters (i.e., children over 21)
Among family members of LPRs, the waiting time is longer for unmarried sons and daughters than it is for spouses and children under 21. It is possible for a son or daughter to receive his or her green card in the future even if he or she is then over 21. Because of this, it is important to file the application before the child's 21st birthday if possible. Our office can provide more specifics on this process.
Married Sons and Daughters of U.S. Citizens (i.e., children over 21)
U.S. citizens can also petition for their married sons and daughters.
Spouses and minor children of married sons and daughters may also be included in the application.
A long waiting list currently exists for potential visa applicants in this category.
Brothers and Sisters of U.S. Citizens
If a U.S. citizen is over 21, he or she can petition for his or her brothers and sisters.
Spouses and minor children of beneficiaries in this category may also be included in the application.
A long waiting list currently exists for potential visa applicants in this category.
Note: Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.
Application Process
There are two ways through which someone can apply for a green card in the U.S.:
1) Adjustment of status, for certain individuals already living in the U.S., and
2) Consular processing, for individuals applying from outside the U.S., and individuals living in the U.S. who do not qualify for adjustment of status.
The first step in either process is for the U.S. citizen or lawful permanent resident to file an immigrant petition with the United States Citizenship and Immigration Services (USCIS). Typically this form is the Petition for Alien Relative (Form I-130). As mentioned above, the U.S. government only grants a certain number of visas in each category every year. Because of this, it may take several years before your visa is approved. Remember, however, that certain immediate relatives of U.S. citizens will not have to wait. Once a visa is available, you will then be able to file for an adjustment of status or begin consular processing.
Adjustment of Status
Some immigrants already in the United States qualify for adjustment of status when their family petition is approved – a way to finish the process and receive their green card without ever having to leave the country. Generally, an individual can only file for adjustment of status in the United States if they are an immediate relative of a U.S. citizen and have entered the country legally, for example on a visitor visa. Some others may also qualify for adjustment of status under a former law known as 245(i), if a petition was filed for them before April 30, 2001 and they meet certain other requirements. Any other person will have to go through consular processing outside of the United States.
An immediate relative of a U.S. citizen should apply for his or her adjustment of status at the same time his or her family member files the family petition discussed above. An immediate relative may also apply for a work permit at the same time, allowing the relative to have authorization to work while his or her immigration petition is still pending.
Consular Processing
An individual who does not meet the criteria for adjustment of status will need to go through consular processing outside of the U.S. This process begins when the family member’s immigrant petition has been approved.
Please note that individuals who live in the U.S. for longer than 6 months at any time without having a lawful status, and then depart the U.S., may have to wait 3 to 10 years before returning. This is especially important for individuals living in the U.S. today who arrived illegally and want to obtain a green card. Even if this person marries a U.S. citizen, he or she will need to depart the country in order to go through consular processing, which could trigger the 3- or 10-year bar from returning. It is important to discuss your situation with an attorney so that he or she can inform you of potential risks of leaving the U.S. and ways to obtain permission to return prior to the 3- or 10-year bar. Our attorneys are able to provide guidance in this situation.
For individuals who meet the criteria above, the next step in the process is to schedule an interview at a consular office, typically in their home country. If the consular officer decides that the individual is eligible for a visa, he or she can then travel to the U.S. The last step in the process is to be inspected by Customs and Border Patrol (CBP) at the airport, port, or border crossing. If the CBP officer agrees the individual is admissible to the U.S., he or she will be admitted into the country and mailed a green card within 30 days.
Our attorneys can help you navigate through the complexities of determining a visa category and applying for a visa. We can also provide advice regarding which type of processing is possible in your specific situation and whether you can still apply for a green card even if you do not meet the exact criteria above.
1) Adjustment of status, for certain individuals already living in the U.S., and
2) Consular processing, for individuals applying from outside the U.S., and individuals living in the U.S. who do not qualify for adjustment of status.
The first step in either process is for the U.S. citizen or lawful permanent resident to file an immigrant petition with the United States Citizenship and Immigration Services (USCIS). Typically this form is the Petition for Alien Relative (Form I-130). As mentioned above, the U.S. government only grants a certain number of visas in each category every year. Because of this, it may take several years before your visa is approved. Remember, however, that certain immediate relatives of U.S. citizens will not have to wait. Once a visa is available, you will then be able to file for an adjustment of status or begin consular processing.
Adjustment of Status
Some immigrants already in the United States qualify for adjustment of status when their family petition is approved – a way to finish the process and receive their green card without ever having to leave the country. Generally, an individual can only file for adjustment of status in the United States if they are an immediate relative of a U.S. citizen and have entered the country legally, for example on a visitor visa. Some others may also qualify for adjustment of status under a former law known as 245(i), if a petition was filed for them before April 30, 2001 and they meet certain other requirements. Any other person will have to go through consular processing outside of the United States.
An immediate relative of a U.S. citizen should apply for his or her adjustment of status at the same time his or her family member files the family petition discussed above. An immediate relative may also apply for a work permit at the same time, allowing the relative to have authorization to work while his or her immigration petition is still pending.
Consular Processing
An individual who does not meet the criteria for adjustment of status will need to go through consular processing outside of the U.S. This process begins when the family member’s immigrant petition has been approved.
Please note that individuals who live in the U.S. for longer than 6 months at any time without having a lawful status, and then depart the U.S., may have to wait 3 to 10 years before returning. This is especially important for individuals living in the U.S. today who arrived illegally and want to obtain a green card. Even if this person marries a U.S. citizen, he or she will need to depart the country in order to go through consular processing, which could trigger the 3- or 10-year bar from returning. It is important to discuss your situation with an attorney so that he or she can inform you of potential risks of leaving the U.S. and ways to obtain permission to return prior to the 3- or 10-year bar. Our attorneys are able to provide guidance in this situation.
For individuals who meet the criteria above, the next step in the process is to schedule an interview at a consular office, typically in their home country. If the consular officer decides that the individual is eligible for a visa, he or she can then travel to the U.S. The last step in the process is to be inspected by Customs and Border Patrol (CBP) at the airport, port, or border crossing. If the CBP officer agrees the individual is admissible to the U.S., he or she will be admitted into the country and mailed a green card within 30 days.
Our attorneys can help you navigate through the complexities of determining a visa category and applying for a visa. We can also provide advice regarding which type of processing is possible in your specific situation and whether you can still apply for a green card even if you do not meet the exact criteria above.
