Priority: Spouses, Fiance(e)s, and Adopted Children

The U.S. immigration process puts particular importance on reuniting family members and securing family relationships. Thus, immediate relatives such as spouses, fiance(e)s, unmarried children, and adopted children of U.S. citizens receive priority. Their visa processing is separate from other nonimmigrant visa holders and is often more expedited.

This article will offer an in-depth explanation of the family-based immigration system.

The Preference Categories

Individuals who migrate to the U.S. through the preference visa petition are categorized by preference. The table below enumerates the qualifying relatives and their categories.

Note for categories F1 and F2B, their visa adjudication depends on their marital status. Married sons and daughters could lose their eligibility to immigrate through this category.

Marriages

The following is a description of the visa application process for foreign national spouses:

• The U.S. Citizenship and Immigration Services (USCIS) can approve a visa petition filed on behalf of the spouse, as long as the spouse is admissible to the United States. This process involves what is known as the Petition for Alien Relative.

• If the spouse is in a foreign country when the visa petition is approved, the spouse will go to his or her nearest U.S. consulate. The spouse should complete the processing for an immigrant visa before traveling to the U.S.

• If the spouse is already in the U.S., the couple may also file the immigrant visa petition along with an adjustment of status. Upon approval, the foreign national spouse may receive a lawful permanent residency.

But, if the couple has been married less than two years at the time of approval, the permanent resident status of the spouse will be conditional. The couple should then jointly file Form I-751, a Petition to Remove Conditions on Residence, to remove these conditions. The couple should file this petition within 90 days before the second-year anniversary of their conditional residence status.

U.S. immigration laws allow the USCIS to request relevant documents from the visa applicant. These documents may include proof of identity such as a birth certificate, affidavit of support, and other supporting documents. The purpose of it is to check the identity of the person. The USCIS officer will also assess whether the marriage was genuine. Thus, it is best to prepare proof that your marriage is a bona fide marriage. This could include a marriage certificate, pictures, and other relevant documents.

The residence status of the spouse will be conditional until the couple shows proof that they did not get married merely for immigration purposes. After approval of the petition to remove conditions, your spouse will become a bona fide permanent resident of the U.S.

If Form I-751 is not filed within the 90-day period before the two-year anniversary, the conditional permanent residence status will expire. The spouse can then be subject to removal from the country. The U.S. government may initiate this removal proceeding, which could lead to deportation.

Fiance(e)s

A U.S. citizen who is planning to marry a foreign national in the U.S. must file a petition on behalf of his or her fiance(e). Form I-129F, a Petition for Alien Fiance(e), is the first step to give your fiance(e) a chance to go to the U.S. using a K-1 nonimmigrant visa.

If you obtain a K-1 visa, it is expected that you and your fiance(e) should intend to marry within 90 days of arrival in the country. The wedding should be bona fide and entered into in good faith. This means that both of you should have intended to build a life together and not just get married to get immigration benefits.

The marriage should happen within 90 days after the fiance(e) enters the U.S. on a K-1 fiance(e) visa. If no wedding happens within 90 days, the fiance(e) should leave the country. But it is important to remember that each circumstance may vary. An immigration attorney can give you legal advice particularly tailored to your case.

If you already got married or are planning to get married outside of the U.S., or your fiance(e) is already living in the United States, the non-U.S. citizen partner is not eligible for a K-1 nonimmigrant visa. The required petition will be a different form, with a different procedure. It will bring your spouse to the U.S. as a permanent resident.

Adoptions

Adoption creates a legal parent-child relationship that is similar to that of a biological child of the parent.

This petition can be to adopt a stepchild or the unmarried child of the foreign national spouse. The U.S. citizen will then be an adoptive parent of the child instead of a stepparent.

The Hague Convention on the Protection of Children places particular importance on the best interest of the child, adoptive parents, and biological parents in intercountry adoptions. There is also the family-based petition as another avenue to adopt a child.

Take note that there are differences in adoption through the Hague Convention or the family-based petition.

Adopting a Child Under the Hague Convention

• Only U.S. citizens are allowed to adopt under the Hague Adoption Convention process.

• The child should come from a country that is a part of the convention.

• The child must be under 16 years of age or under 18 if the sibling exception applies.
• The child is eligible for intercountry adoption after assessment by the country's Central Authority.

If U.S. citizens would like to adopt an orphan from a country that is not part of the Hague Convention, they should fill out an I-600A form. The Application for Advance Processing of an Orphan Petition will serve as a request to the USCIS to determine the eligibility and suitability of the adoptive parent.

Adopting a Child Under a Family-Based Petition

• The "adopted child" can be an unmarried son or daughter of the adoptive parent.

• The adoptive parent adopted the child before turning 16 years of age or before 18 years of age in certain circumstances.

• The adoptive parent has legal custody of the child and is jointly residing with the child for at least two years while the child is under 21 years of age.

The USCIS website provides more detailed information about the different processes for adoption, as they can be complicated and require different forms or a home study.

Availability of Immigrant Visa and Priority Dates

The Immigration and Nationality Act (INA) provides certain immigrant visas that the U.S. Department of State (DOS) can give annually. This applies particularly to non-U.S. citizens applying for lawful permanent residency or green card.

But, DOS allows an unlimited number of immigrant visas to immediate relatives. This makes these visas always available. Immediate relatives include:

• Spouses of U.S. citizens

• Children of U.S. citizens (unmarried children under 21 years of age)

• Parents of U.S. citizens (the U.S. citizen must at least be 21 years old)

• Widows or widowers of U.S. citizens. This applies if the U.S. citizen filed the petition before death or if the widow(er) files a petition within two years after the death of the U.S. citizen spouse.

The priority date determines when the prospective U.S. immigrant can migrate. It works similarly to a number on a waiting list.

The Department of State and the USCIS create a system wherein applicants can check their visa status. The visa applicants can see their visa priority dates through a monthly Visa Bulletin.

Approval of Immigrant Visa Petition

After the USCIS approves the visa petition, USCIS forwards the petition to the National Visa Center (NVC) for the preprocessing of immigrant visas. If your priority date meets the recent cut-off date, the NVC will:

• Give an invoice for your visa application fees
• Collect your supporting documentation and visa application
• Hold your immigration visa petition until an interview with the U.S. Consulate or U.S. embassy is scheduled

If your priority date does not meet the most recent cut-off date, NVC will notify you and hold your petition until the next cut-off date. The NVC will give you notice as your priority date gets closer.

Protection to the Beneficiaries When Qualifying Relative Dies

INA was amended on Oct. 28, 2009, to reflect provisions in case of the death of a qualifying relative. According to this amendment, both beneficiaries with pending visa petitions are protected in case of the death of the qualifying petitioner before the final adjustment of status. This protection and waiver of inadmissibility applies to I-130 visa petitions, adjustment of status, and other related visa applications.

Please note that rules and regulations relating to immigration law could change. It is best to visit government websites like USCIS or consult an immigration attorney if you're going through an immigration process.

Seek Legal Advice From an Immigration Law Attorney

Navigating the intricacies of immigration laws can be challenging. Rules may significantly vary depending on the circumstances of each individual. This is particularly true when it comes to family-based immigration petitions. But, whether it is understanding the conditional residency visa or the adoption process, it is important to know your rights.

Consulting an immigration attorney is helpful as you go through your immigration journey. They can inform you of the steps, requirements, and processing times related to immigration visas. Immigration attorneys can also help you with processing other visa categories and providing other immigration services, which include the following:

• Change of immigration status

• Application for U.S. citizenship or naturalization

• Acquiring refugee status

• Other matters related to immigration laws

To learn more about the intricacies of immigration law, FindLaw has a series of legal resources available. You can also find a directory of immigration lawyers available in every state.