In family-based immigration, your petitioner can make all the difference. Understanding who your petitioner is can help you set realistic expectations and plan your immigration strategy.
Who is the Petitioner?
Family-based immigration typically begins with a petitioner. This petitioner can be a U.S. citizen or Lawful Permanent Resident who files a petition (Form I-130) on behalf of a qualifying relative. The immigration status of the petitioner determines who they can sponsor and whether there is a wait. A petitioner can be an immediate relative or a preference category.
Who is an Immediate Relative?
An immediate relative includes: spouses of U.S. citizens, unmarried children under 21 of a U.S. citizen, and parents of a U.S. citizen (if the citizen is 21 or older).
What does it mean to be an immediate relative?
Immediate relatives always have a visa immediately available to them. This means that applicants will not be subject to a backlog and can file their adjustment of status concurrently with their petition (Form I-130), if eligible.
What does it mean to be a preference category?
All other qualifying family relationships fall within the family-sponsored preference system. Unlike immediate relatives, there is a numerical limit. The preference categories are:
- First Preference
- F1: Unmarried sons and daughters (21 years or older) of U.S. citizens
- Second Preference
- F2A: Spouses and unmarried children (under 21) of lawful permanent residents
- F2B: Unmarried sons and daughters of lawful permanent residents (children over 21)
- Third Preference
- F3: Married sons and daughters of U.S. citizens
- Fourth Preference
- F4: Brothers and sisters of U.S. citizens
The Visa Bulletin and Priority Dates
When the petition, Form I-130 is filed, USCIS issues a priority date. This date establishes the beneficiary’s place in line.
The Department of State maintains a monthly visa bulletin. The Visa Bulletin demonstrates when a visa becomes available by showcasing the current priority dates. Visas are allocated by both preference category and country. The wait times can significantly vary.
Note: Immediate relatives are not subject to the Visa Bulletin wait times.
Immediate Relative versus Preference Category
Visa Availability: The classification of a petition has several implications. As mentioned previously, immediate relatives do not have an annual cap nor backlog. Preference category petitions are guided by the dates in the Visa Bulletin.
Adjustment of Status Eligibility: Immediate relatives of U.S. citizens can be eligible to adjust their status inside the United States, even after overstaying a visa. Preference category beneficiaries must maintain their lawful status until their petition’s priority date is current.
Petition Upgrades: A preference category petition can convert to an immediate relative petition if the petitioner naturalizes. This can affect derivatives of the petition because immediate relatives are not allowed derivatives, but preference categories are. (E.g., a lawful permanent can file one petition for their spouse, and this will include any minor children under 21. If they naturalize, a petition may need to be filed for every qualifying relative of their family.)
Aging Out: For immediate relatives of U.S. citizens, the Child Status Protection Act (CSPA) freezes a child’s age on the date the petition, Form I-130 is filed. In preference category petitions, children are permitted limited protection but are at risk of “aging out.”
Legal Considerations
When evaluating effective case strategy, the following should be reviewed:
- Adjustment of Status v. Consular Process
- Visa Bulletin Movement/Wait Times
- Naturalization of the Petitioner
- Assessing risks related to any inadmissibility
- Planning and considering derivative beneficiaries
If you are considering filing a family-based petition or would like to evaluate your category and visa availability, please contact Natalia Meade at nmeade@psbplaw.com.
