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Immigration Eligibility and Preference Categories

Going through a family-based immigration journey can feel overwhelming and challenging. Getting familiar with intricate rules and laws is crucial. This is especially true when navigating preference categories and understanding priority dates. Despite its complexities, it is best to stay informed.

This article aims to give you a better understanding of your rights and bring clarity to the visa eligibility and preference categories.

What Does the Immigration Preference Category Mean

The U.S. government allows certain qualifying foreign nationals who are family of lawful permanent residents (LPR) and U.S. citizens to migrate to the United States as lawful permanent residents. The U.S. embassy or consulate of the beneficiary's home country often processes the petition.

The relative you want to bring over must get an immigrant visa number based on their preference category.

The U.S. Citizenship and Immigration Services (USCIS) classifies people wanting to immigrate based on a preference system. An immigrant visa number will become available for immediate relatives of U.S. citizens, such as spouses and minor children. The relatives in the remaining categories must wait for an immigrant visa number according to the following preferences:

  • First preference (F1): Unmarried children 21 years of age and older of U.S. citizens
  • Second preference (F2A): Spouses and unmarried children under 21 of LPRs
  • Second preference (F2B): Unmarried children 21 years of age and older of lawful permanent residents
  • Third preference (F3): Married sons and daughters of U.S. citizens
  • Fourth preference (F4): Brothers and sisters of U.S. citizens if the U.S. citizen is 21 and older.

Once you submit your I-130 Petition for Alien Relative to USCIS, it will approve or deny it. It will also send a request if they need an affidavit of support or other documentation.

If the USCIS approves the visa petition, it will notify the petitioner. USCIS will send the approved visa petition to the Department of State's National Visa Center, which will remain until an immigrant visa number is available. The Center will notify you and the foreign national when it gets the visa petition. It will again notify you when an immigrant visa number becomes available.

You don't need to contact the National Visa Center unless you change your address or there is a change in your situation, or that of your alien relative, that may affect eligibility for an immigrant visa, such as reaching age 21, marriage, divorce, or death of a spouse.

How To Sponsor Family Members Immigrating to the U.S.

Your immigration status determines which relatives you can sponsor to the United States. To be eligible to sponsor a family member to come to the U.S. with an immigrant visa, the sponsor should at least be 21 and either a:

  • U.S. citizen
  • Lawful Permanent Resident (green card holder)
  • Refugee admitted or asylee granted asylum status within the past two years.

Types of Family-Based Immigrant Visas:

There are two types of family-based immigrant visas. They can either be immediate relatives or family preferences.

Immediate Relative Immigrants

These visas are for close family ties with the sponsor. The number of immigrants who can get visas under this category is not limited to every fiscal year. You are an immediate relative of a U.S. citizen or a lawful permanent resident if you are:

  • Spouse
  • Unmarried child under 21; or
  • Parent of a U.S. Citizen if the citizen is 21 or older

Family Preference Immigrants

These visas are for more distant or specific family relationships with the sponsor. The USCIS gives specific numerical limitations on how many can get this visa every fiscal year.

Note that a U.S. citizen can petition their:

  • Spouse
  • Child or children
  • Parents
  • Brothers or sisters of U.S. citizens

Lawful permanent residents can only petition for immigrant visas their:

  • Spouse
  • Unmarried son or daughter

Required Documentation for Bringing Sons and Daughters to the United States

To bring sons and daughters to the United States, you should show the following documents to the USCIS:

  • Petition for Alien Relative (Form I-130)
  • Evidence of your U.S. citizenship. Your U.S. passport, consular report of birth abroad, a copy of your naturalization certificate, or your citizenship certificate.
  • For permanent residents, show your status with a copy of your green card or your foreign passport showing a stamp of your permanent residence.
  • If you or your child's name has changed, proof of the change of name could be a marriage certificate, divorce decree, court judgment of change of name, etc.
  • Proof of relationship with the son or daughter.

Required Documentation for Bringing a Spouse to the United States

To complete the process of petitioning a spouse to the U.S., you, as a petitioner, should submit the following documents:

  • Petition for Alien Relative (Form I-130)
  • A copy of your civil marriage certificate
  • Passport-style photos of you and your spouse
  • A copy of all annulment decrees, divorce decrees, death certificates, or other documents demonstrating that all previous marriages entered by you and your foreign national spouse were terminated
  • Evidence of all legal name changes of you and your spouse.
  • Proof of your U.S. citizenship. Your U.S. passport, consular report of birth abroad, a copy of your naturalization certificate, or your citizenship certificate.
  • For permanent residents, you should show your status with a copy of your green card or your foreign passport showing a stamp of your permanent residence.

Can My Child or Spouse Come to the U.S. While the Petition is Pending?

Family-based preference visas have high demand, often creating a backlog of applications. So, it's common for immigrant visa applications to take time to process.

Once you submit your Form I-130, U.S. citizens can file Form I-129F. This will allow your child or spouse to get a K3/K4 nonimmigrant visa.

K-4 nonimmigrant visa will allow your child to go to the U.S. to live, go to school, or work pending their immigration application. But, a K-3 visa for your spouse will allow them to come to the U.S. to live and work while awaiting their permanent resident status.

Note that you are not required to file Form I-129F. This nonimmigrant visa will only allow them to come to the U.S. pending the petition. But, your child or spouse may opt to wait in their home country while the visa petition gets processed.

Seek Legal Advice From an Immigration Attorney

U.S. immigration laws, such as the Immigration and Nationality Act (INA), are challenging to understand. Especially when navigating through the intricate rules of family-based immigration petitions involving your loved ones. There are also certain situations where you are eligible for the waiver of specific requirements.

Although this guide offers a comprehensive overview for people trying to bring family members to the U.S., the requirements vary depending on each case. Talk to an immigration law attorney near you. They can help you understand the complexities of preference visa categories.

Immigration lawyers can also provide other immigration services such as adjustment of status, visas for employment-based immigrants, skilled workers, religious workers, special immigrants, and other types of visa applications.

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