It is important to understand whether you or your loved one qualifies for an immigration benefit and how long the process will generally take to achieve your goal of permanent residency. The timing depends on various factors, including your relationship and country of citizenship of the foreign national.
A person may attain immigration benefits from a relative if that person is an “immediate relative” or qualifies for “preference immigrant” benefits. The benefit of being an immediate relative is that there is no cap on the number of visas available each year. Preference petitions, on the other hand, are part of a quota system and will often experience significant backlogs.
Immediate relatives are children, spouses, and parents of a US citizen. If applying for a parent, the US citizen son or daughter must be at least 21 years-old. If applying for a child, the child must be under 21 years of age and unmarried. There are various definitions of children according to the immigration law.
Preference Immigrant Relationships
There are four preferences and those who receive derivative benefits. The benefits and relationships are as follows:
* First Preference: Unmarried sons or daughters of US citizens who are 21 years or older;
* Second Preference: Spouse or children of a permanent resident or unmarried sons or daughters of a permanent resident;
* Third Preference: Married sons or daughters of citizens of the US; and,
* Fourth Preference: Brothers or sisters of citizens of the US who are 21 years or older.
Notably, there is no category for married sons or daughters of permanent residents.
Derivative Relative Relationships
A derivative relationship refers to spouses and children of individuals who fall within one of the four preference categories. A derivative relationship beneficiary must apply at the same time as the qualifying relative.
Determination of a Qualifying Family Relationship
Whether the law considers a person to be a child, parent, or spouse for immigration purposes requires a review of each person’s circumstances. In addition, there are several categories that are dependent on more than just a family relationship. To illustrate, widows, orphaned and adopted children, and battered dependents require proof of more than just a qualifying family relationship. Please contact Wilson Law Group for a consultation to assess your particular situation.
There can be dramatic differences in the timelines based upon a foreign national's country of citizenship. The current US policy is to allow the exact percentage of overall family-based immigrant numbers annually to come from each country regardless of size of the nation. In other words, the same percentage of people can come from India as from Japan, although far more people from certain countries apply for immigrant visas than others. This has resulted in a significant backlog (waiting times) for some countries. If there are no visa numbers available for your country of citizenship, you will have to wait for a visa number to become available. At present, foreign nationals who are most affected by visa number backlogs are individuals from India, China, Mexico, and the Philippines, depending on the particular category.
Does My Relative Have to be Outside of the United States to Get Benefits?
No, although strict limitations apply. A foreign national in a preference category may generally only apply for permanent residency in the United States if the person was inspected and admitted or paroled into the U.S., has not accepted unauthorized employment in the U.S., and is in lawful status at the time of the application for residency.
Same-sex spouses of U.S. citizens and permanent residents are now eligible for the same immigration benefits as opposite-sex spouses, as long as the couple was married in a state that recognizes same-sex marriages.
Please consult with Wilson Law Group to review your situation and determine the best strategy for you and your loved one.