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#USImmigrationLaw: What Is Family Based Immigration?

By Ephrat Livni, Esq. on June 06, 2016 | Last updated on March 21, 2019

There are different ways to legally immigrate to the United States and one of them is based on family relations. Citizens and legal permanent residents with family members have the option to sponsor certain relatives for visas under certain conditions in recognition of the importance of family unity.

Family-based immigration petitions generally fall into two major categories: immediate relative petitions and family preference petitions. Let's consider what they are, the differences between them, and who can apply.

Who Is Family?

While you may have an extensive family with lots of cousins, uncles, and aunts, and you may feel close to all of them, the law is quite specific about who counts as a close relative for the purposes of immigration. For the most part, the family petitions apply to spouses and children, although parents and siblings can qualify for visas, too.

The Immigration and Nationality Act defines an immediate relative as a spouse, an unmarried child who is under 21, and parents of a citizen who is over 21-years-old. But there are some interesting wrinkles and differences between a citizen's petition for a relative and that of a legal permanent resident, also known as a green card holder.

Immediate Relative Petition

US citizens over 21 years of age may sponsor an immediate relative -- spouse, unmarried minor child, or parents. These petitions have immigration priority, meaning that there is no limit to the number of visas available to people seeking them. Beneficiaries do not have to wait for a visa to become available to enter the US -- visas are already available -- but that is not the case for those relatives who are sponsored under a family preference petition.

Family Preference Petitions

The family preference petition is an option for sponsorship available to US citizens or legal permanent residents. Green card holders can sponsor a relative's immigration but there are more limitations on the family preference petition than on that for immediate relatives.

Green card holders can sponsor a spouse or unmarried child of any age, including adult. But parents can't qualify under family preference petitions and these do not have priority, meaning there are limited visas and the beneficiary will only receive on when a visa becomes available. Meanwhile, US citizens who are over 21 years old can sponsor a sibling under a family preference petition, but this category has a low priority and relatively long wait times.

Derivative Beneficiaries

Any relative who is sponsored under a family based petition is the immediate beneficiary. But they too may have close relatives who could qualify for a visa, depending on how the primary beneficiary got their visa. Say, a beneficiary is approved under a family preference petition, then that person's spouse and qualifying children may also be eligible for a visa. Under an immediate relative petition, there are no derivative beneficiaries.

As you can see, even relatively simple notions, like who is close family, get complicated in immigration law. Your best bet is to get help.

Talk to a Lawyer

If you are involved in an immigration matter or are just considering it, talk to a lawyer. Get guidance and advice to make sure you handle your applications the right way. Many immigration attorneys consult for free or a minimal fee and will be happy to assess your case.

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