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Family-Based Immigration

Family-Based ImmigrationUnderstanding Family-Based Visa Eligibility

In this article, you can discover:

  • Who can petition for family-based visas for certain family members.
  • When the petitioner can also act as the sponsor for the intended immigrant.
  • Whether family members can come to the US while the visa petition is pending.

What Happens If A Child That Was Denied Immigration Turns 20 Years Old And Submits A Subsequent Application?

Individuals eligible to apply for a family-based visa petition include United States citizens and lawful permanent residents (LPR). A US citizen can petition for their spouse or child who is unmarried and under 21 years old, as well as their son or daughter who is over 21 married or unmarried. 

An LPR can petition for their unmarried child or son/daughter, regardless of their age, but if the child is married, the parent must be a US citizen to file the petition.

It’s important to note that for immigration purposes, a child is considered to be under 21 and unmarried. If the child marries before reaching 21, they will no longer be considered a child for immigration purposes and fall into a different category. In this case, the parent must be a US citizen to file the petition.

Who Can Petition A Family Member For A Family-Based Visa?

A family member who can file a petition must be a US citizen or a legal permanent resident. They can file a petition for their spouse, parents, child, son or daughter, or siblings. However, eligibility criteria vary depending on whether the petitioner is a US citizen or a legal permanent resident.

What Constitutes Family When It Comes To Family-Based Visa?

Qualifying Family Relationships: Immediate Relatives And The Preference Categories:

Immediate Relatives (IR) No waiting list: visas immediately available.

  • Children of USCs (under 21 and unmarried)
  • Spouses of USCs
  • Parents of USCs

Preference Categories (Subject to numerical cap: must wait in line)
Married and unmarried sons and daughters of USCs

  • Brothers and sisters of USCs
  • Spouses, children and unmarried sons and daughters of LPRs

However, there are differences in who a U.S. citizen can petition compared to a legal permanent resident. Legal permanent residents cannot petition their siblings, whereas a U.S. citizen can petition for a sibling or a family-based visa.

For example, if John is a legal permanent resident (LPR) in the U.S. and has a brother in Mexico, he may want to petition for his brother to join him in the U.S. as a legal permanent resident. However, as an LPR, John cannot petition for his brother until he becomes a U.S. citizen. Therefore, until John becomes a U.S. citizen, he will not be able to file a family petition for his brother.

Who Is Eligible To Serve As A Sponsor For A Family-Based Visa?

The individual who files a family petition and an I-130 form is known as the petitioner, while a sponsor is usually responsible for guaranteeing that the intended immigrant will not become a financial burden on the US government. It is worth noting that a sponsor can also be the petitioner in some cases.

For example, consider this scenario: John, a US citizen, intends to bring his spouse, who is a Mexican citizen, to the United States as a permanent resident. In this scenario, John can serve as both the petitioner and the sponsor.

The consular process follows the submission of the family petition, during which a sponsor is required. The sponsor’s role is to attest that the intended immigrant will not become a public charge of the United States. Typically, the petitioner and the sponsor are the same person, but if the intended immigrant cannot prove their financial stability, they may require a sponsor’s assistance.

For example, an elderly person who has retired and has married a foreign national might require a sponsor if they lack the financial means to support their spouse. In such cases, the elderly person’s son could act as the sponsor and vouch for his parent’s financial stability.

In any case, the sponsor is responsible for the intended immigrant for ten years or until the person becomes a US citizen if they receive government assistance. Additionally, the sponsor will be financially responsible for any government debt incurred by the intended immigrant.

To summarize, the petitioner and sponsor are distinct terms, and a petitioner can also serve as a sponsor. A sponsor’s primary responsibility is to certify that the intended immigrant will not become a financial burden on the US government.

Can A Family Member Come To The US To Live With The Visa Petitioner While The Visa Petition Is Still Pending?

It is possible for a family member to come to the United States while the visa petition is still pending. However, a separate form must be filed to indicate that the regular processing time cannot wait because the petitioner would suffer extreme hardship if the family member is not present in the United States.

It may take some time for the request to be processed for the family member to come in. In cases where extreme hardship is involved, one can contact USCIS to expedite the petition and the consular process for an appointment to be expedited.

The process is done on a case-by-case basis. It is common practice to file family petitions electronically, as they tend to move faster than paper filings. This helps to expedite the process, and the petitioner receives a receipt right away, cutting down on processing time.

Overall, while it is possible to bring family members to the United States while a visa petition is pending, it requires a showing of extreme hardship to the US citizen or lawful permanent resident requesting the family member’s presence in the US. For more information on Family Based Visas In The United States, an initial consultation is your next best step.

More Information

Julie Moreno, Esq. - Family-Based Immigration Lawyer - Orange, CA

Call For A Free Consultation

(310) 341-0551

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