U.S. Immigration Policy Supports Family Reunification When Possible

From the beginning of our country, immigration has had prominence in our national policy and federal laws. Historical events dictated that the vast majority of people in the U.S. has immediate or historical roots abroad, and our laws have always had to grapple with the reality that families did not (and do not today) always immigrate together at the same time. Hence, the government is pressured to enable family reunification and current immigration law reflects just that.

Two main categories exist for permanent immigration to the U.S.: family-based and employment-based immigration, with those immigrating because of family ties far exceeding the number of those coming into the country for job-related reasons.

Two major routes exist for family-based immigration. The first route is for those lucky enough to be considered immediate relatives of U.S. citizens. These immediate relatives are admitted in unlimited numbers and become lawful permanent residents, also called LPRs (foreign nationals with permission to live and work in the U.S.).

The second route is for those who fall into any of four “family preference categories.” Unfortunately, those falling into these categories are subject to per-country limits and annual numerical caps and it can take many years – even decades – for them to gain entry. (They are admitted according to “priority dates,” chronologically according to the dates their petitions to enter were filed.)

The U.S.-based relative is the sponsor and the relative abroad, the beneficiary.

Immediate Relatives

Five visa types exist for immediate relatives of U.S. citizens:

• IR-1: Spouse (a “legally wedded husband or wife,” including a common-law spouse under the law of the country of marriage; cohabitation not sufficient; same-sex marriage not recognized regardless of legality in the country of marriage; only the earliest spouse in a polygamous marriage; marriage between spouses related by blood usually recognized if legal and not a crime in country of marriage; “sham” marriage not recognized where couple did not intend at the time of the marriage to maintain a genuine marital relationship)

Note: For a marriage under two years in duration, the permanent resident status of the immigrating spouse is only conditional; status can be adjusted to permanent after the two-year anniversary of the marriage.

• IR-2: Unmarried child under 21
• IR-3: Orphan adopted abroad
• IR-4: Orphan adopted in U.S.
• IR-5: Parent of U.S. citizen who is 21 or older

Family Preferences

Family-preference immigrant visas are those made available for certain family relationships with U.S. citizens and others with LPRs. Here are the four family-preference categories:

· F1 Family First Preference (Annual cap 23,400): U.S. citizen sponsorship of their unmarried children

· F2 Family Second Preference (Annual cap 114,200): LPR sponsorship of their spouses, minor children and unmarried children over 20 (a minimum of 77 percent of visas in this category designated for spouses and minor children with the rest for qualifying unmarried adult children)

· F3 Family Third Preference (Annual cap 23,400): U.S. citizen sponsorship of their married children (along with their children’s spouses and minor children)

· F4 Family Fourth Preference (Annual cap 65,000): U.S. citizen (at least 21 years of age in this category) sponsorship of their siblings

Significantly, certain spouses and children of the direct beneficiaries in these four categories are automatically granted derivative status. Derivatives are entitled to the same preferential treatment as their qualifying spouses or parents, as long as the derivatives are “accompanying or following to join” their spouse or parent beneficiaries.

Procedural Requirements

Some immigration categories require the sponsor to be of a certain age and domiciled in the U.S. The sponsor usually begins the family-based immigration process by filing a Petition for Alien Relative (Form I-130) with the U.S. Citizenship and Immigration Services, known as USCIS, part of the Department of Homeland Security.

Most sponsors must also agree to provide a certain level of ongoing financial support for their incoming relatives, and have to file affidavits proving adequate income and resources to do so.

If ISCIS approves the petition, the National Visa Center processes it by collecting required fees and extensive documentation, including proof of a required medical examination by an approved doctor in the beneficiary’s country of residence, and of vaccinations (14 different vaccines, unless found “medically inappropriate” for the person by the examining physician). The beneficiary will be interviewed and fingerprinted at a local U.S. embassy or consulate.

Not all beneficiaries of the family-based categories will be automatically eligible. For example, the previous commission of certain crimes or immigration violations, or fraud in the attempt to enter the country, may disqualify a relative.

Notably, family sponsors may not be eligible to bring their qualified relatives into the country if the sponsors have been convicted of certain child sex abuse crimes.

Other Family Categories

Beyond these main nine categories, other ways exist for family members to legally enter the country. For example, citizens can apply for nonimmigrant fiance or fiancee visas. Other examples of people sometimes eligible for admission as relatives include certain “Amerasian” children from particular Southeast Asian countries, children and spouses of refugees and asylees, some widows and widowers of deceased citizens and others.

Get Legal Advice

This article has been an overview of family-based immigration. For any broad statement about U.S. immigration law, an exception or a nuance probably exists in some statute, regulation or court case. U.S. immigration law is incredibly complex, and any citizen or lawful permanent resident considering an attempt to bring a relative to the U.S. should consult with an experienced immigration attorney as early in the process as possible for current, detailed advice.

A knowledgeable lawyer can look at the particular situation and provide guidance on the family member’s possibilities for legal entry, including information about issues like eligibility, potential problems or exceptions, likely wait time, documentation requirements and fees.