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Family-based immigration is the backbone of our immigration system. It allows for families to
stay together and live in the U.S. One of the most common avenues for a foreign national to
obtain legal permanent residence in the United States is through the family-based immigration
process. As a spouse, parent, or child of a U.S. citizen or legal permanent resident, an individual
may be eligible for permanent resident status through an adjustment of status application or
alternatively, an immigrant visa application if they meet specific criteria.
This involves the petitioner, who is a U.S. citizen or permanent resident. It also involves the
beneficiary, who is the foreign family member who wants to obtain a visa.
Eligibility for Family-Based Visas
All family-based immigrant visa applications fall into one of two categories: immediate relatives,
or family preference. These categories help define the family relationship between the sponsor
and the beneficiary. Often, they also dictate the priority of the case and the length of time it will
take. While the number of immediate relative visas is not limited, the number of preference
category visas is limited every year.
Immediate relatives include spouses of U.S. citizens, unmarried children of U.S. citizens under
the age of 21; orphans adopted (or to be adopted) by a U.S. citizen; and parents of U.S. citizens
who are at least 21 years old. For purposes of family-based immigration, simply living together
or being in a common-law marriage is not considered a “spouse.” Same-sex marriages are valid
marriages for immigration purposes. Family preference categories include:
▪ Unmarried, adult children aged 21 or over of U.S. citizens
▪ Spouses and unmarried children aged 21 or under of permanent residents
▪ Unmarried, adult children of permanent residents
▪ Married children of U.S. citizens
▪ Siblings of adult U.S. citizens
In addition to the above, U.S. citizens may also petition to sponsor a foreign fiancé to come to
the U.S. for the purpose of marriage. This process begins by filing Form 129F, Petition for Alien
Fiancé, and it requires the securing of a non-immigrant K-1 visa. While there is no minimum age
to file a petition on behalf of a fiancé or spouse, the Affidavit of Support requires the minimum
age of 18 and residency in the U.S. An experienced fiancé visa lawyer can be invaluable in this
process.
Overview of the Family-Based Immigration Process
The rules and process of family-based immigration can be complex and confusing for a layperson. The process generally begins with the petitioner filing a Form I-130, Petition for Alien Relative, with the USCIS. When that form is accepted, a priority date is set for the application, essentially determining your place in line for approval.
Family members who are residing in their home countries will often need USCIS approval of
their application before they may obtain a visa to enter the U.S. Those who are already in the
U.S. in a lawful nonimmigrant status must apply for a change of status for permanent residency.
The sponsor will also need to file an Affidavit of Support, which is used to show they have
adequate means of financial support and are not likely to rely on the U.S. government for
financial support. Whether you already reside in the U.S. or are awaiting your visa abroad, you
will need to undergo an interview with the federal government.
In the case of a spouse visa, or marriage-based petition, if the sponsor and beneficiary have been
married for less than two years, then the immigrant spouse’s permanent residency will be
considered “conditional.” The spouses must apply together to USCIS to remove the conditional
status within the ninety days before the two-year anniversary of the immigrant spouse’s entry
into the U.S.
The process can be quite lengthy, sometimes taking several years. This is often because demand
for family preference immigrant visas is often high, exceeding the number of visas available, and
creating a backlog.
Fees Involved
According to the State Department, fees are charged for the filing of Petitions for Alien
Relatives, as well as processing an immigrant visa application. In addition, there are fees for the
required medical examination, vaccinations, translations, and obtaining essential documents. The
USCIS website provides a full list of filing fees.
Possible Complications
In addition to the complexity of the process, many family immigration cases are fraught with
issues that can complicate matters.
▪ It may be difficult to prove a familial relationship between the sponsor and the
beneficiary, necessitating additional proof and information
▪ There may be eligibility issues, such as a member of the family not being considered a
“preference relative”
▪ There may be inadmissibility issues, such as prior criminal convictions
▪ You may need to provide significant supplemental documentation, such as photographs,
originals of vital documents, or affidavits
▪ You might face unexpected questions or requests for information during your visa
interview, such as regarding your relationship in the case of a spouse visa
▪ You might need to overcome a prior rejection or denial of your immigrant visa
application
In the case of any of these issues, as well as many others, it may be increasingly difficult and
confusing to navigate the petition process on your own. Accounting for legal and technical
issues, it is in the best interests of many petitioners to retain the services of an immigration
attorney. Call our office at (904) 398-1992 or fill out a fast and convenient form to schedule a
free initial consultation!
Important Forms for Family-Based Immigration
▪ K-3 Visa: A spouse of a U.S. citizen who is the beneficiary of an I-130 petition filed by
their U.S. citizen spouse and who remains abroad may obtain a K-3 visa to allow their
spouse to come to the United States while they are awaiting a decision on the I-130
petition. The K-3 visa was intended to reduce the amount of time that a U.S. citizen and
their spouse would spend apart during the I-130 process. However, USCIS now generally
processes the I-130 petition in less time than the K-3, thereby reducing the need for the
K-3 visa overall.
▪ K-1 Fiancé Visa: The K-1 Fiancé visa allows U.S. citizens to bring their foreign fiancé to
the United States in order to get married. The U.S. citizen and fiancé must marry within
90 days of the fiancé entering as a K-1 non-immigrant. Once married, the U.S. citizen
may petition for the fiancé’s permanent resident status.
▪ I-601 / I-601A Waivers: When you are experiencing difficulties seeking lawful presence
in the U.S., you can appeal for leniency. Any potential immigrant, and some
nonimmigrants, who have been denied entry or an adjustment of status because of
specific inadmissibility reasons can apply for an I-601 waiver of inadmissibility. In other
cases, individuals who have eligible pending visa cases but have already been living in
the United States without lawful presence may be afraid to leave the U.S. for their visa
interview. If they qualify, these individuals can apply for an I-601A provisional unlawful
presence waiver before leaving the U.S. and avoid being banned from entering the U.S.
under USCIS’s three- or 10-year ban on re-entry.
▪ I-130 Family Petition and Immigrant Visa: United States citizens or permanent residents
who wish for their eligible relatives to immigrate to the United States as permanent
residents begin the first step of the permanent residence process by filing an I-130
petition. The I-130 petition can be filed for eligible relatives inside the United States or
those residing outside the United States. To complete the permanent residence process,
beneficiaries must either apply for adjustment of status inside the United States or an
immigrant visa at a U.S. consulate abroad.
▪ I-751 Removal of Conditions: Marriage-based applicants for permanent resident status
who were married to their spouse for less than two years at the time their permanent resident status is approved are granted permanent resident status on a conditional basis. Conditional Permanent Residents must then apply to remove the conditions on their permanent resident status in the 90-day period prior to expiration. USCIS seeks to confirm the continuation and bonafide nature of the marriage through the removal of conditions process and extensive documentation is required for the application.
▪ I-485 Adjustment of Status/Green Card Process: Adjustment of Status, also known as
“the green card process”, allows an applicant lawfully admitted to the United States to
change their status to permanent resident status. Applicants most commonly adjust their
status through a qualifying family member’s sponsorship, employment-based
sponsorship, or a self-petition. While an application for adjustment of status is pending,
an applicant can lawfully remain in the United States and may also be eligible for
employment and travel authorization.
How Can Nooney, Roberts, Hewett & Nowicki Help You
Our qualified and knowledgeable family immigration attorneys can help you navigate the family
immigration process. They will walk you through your options and help you determine the
correct process for your case.
▪ They will help you fill out the required petitions, obtain necessary documentation, and
ensure your filings meet all rules and requirements.
▪ They will help explain and decipher each action that a government agency takes in your
case.
▪ They will help you obtain any required supplemental documentation, such as supporting
documents to prove a valid marriage.
▪ They will represent your interests at hearings and in front of governmental agencies.
▪ They will help you prepare for your interview and represent you.
▪ Because the process can be complex and lengthy, retaining an immigration attorney can
help simplify and resolve some of the major legal and technical issues.
The family immigration attorneys at Nooney, Roberts, Hewett & Nowicki are adept at navigating
every facet of immigration law and related federal litigation. We offer comprehensive, unique,
and strategic solutions for our client’s immigration needs. We can provide consultations in
Spanish too! Call our office at (904) 398-1992 or fill out a fast and convenient form to schedule a
free initial consultation!
