Family Based Immigration

Seeking an Immigration Visa Based Upon a Family Relationship United States Law Recognizes Two Types of Immigration Categories for Families

The Immigration and Nationality Act (INA) divides the immigration visas for family members of United States residents into two categories. The first is “Immediate Relative” immigrant visas, and the second is “Family Preference” immigrant visas.

Immediate Relative visas refer to the immigration of individuals who are:

  • Spouses;
  • Children under 21 years old;
  • Adopted orphans; or
  • Parents

of United States citizens who are at least 21 years old. The United States does not set any limits on the number of Immediate Relative visas it will grant in a given year.

Family Preference visas refer to:

  • Unmarried children of U.S. citizens who are older than 21 and their minor children;
  • Spouses, minor children, and unmarried older children of Legal Permanent Residents (LPRs);
  • Married sons and daughter of U.S. citizens, as well as their spouses and children; and, finally,
  • Siblings of U.S. citizens and their minor children, provided the U.S. citizen is at least 21 years old.

The United States sets a fiscal year limit on the number of Family Preference visas it will grant, and most of these are allocated to the spouses and minor children of LPRs.

Because the number of individuals eligible to receive Family Preference visas often exceeds the available number of visas, there is often a waiting period for those who apply. These visas will then be issued in the chronological order in which the visa petitions were applied for by the visa applicant’s U.S. sponsor. In certain categories with many approved petitions compared to available visas, there may be a waiting period of several years or more, before the visa is issued.

What Are Some of the Requirements for Obtaining a Family-based Visa?

The first step in obtaining a family-based immigration visa is the filing of a Petition for Alien Relative by the sponsoring relative with the United States Citizenship and Immigration Service (USCIS), an agency within the Department of Homeland Security (DHS).

U.S. citizen sponsors must be at least 21 years old to file a petition for a sibling or a parent, and, although there is no minimum age for other categories of family-based immigrants, a U.S. citizen or LPR must be at least 18 years of age and have a residence in the U.S. before he or she can sign an Affidavit of Support, which is required for an immigrant visa for a spouse and other relatives of U.S. sponsors. In all cases, the U.S. sponsor must maintain a principal residence in the United States, and plan to live there in the foreseeable future.

In addition to these age and residence requirements, a number of other requirements must be met that relate to the production of certain documents, the filing of certain USCIS forms, and the payment of fees. Among these requirements are:

  • Applicant must possess a passport that is valid at least 60 days beyond the issuing of the visa
  • Applicant must file an Affidavit of Support from the U.S. sponsor, showing that the immigrant has adequate financial support;
  • Applicant must supply two 2x2 photographs;
  • Applicant must submit certain civil documents, such as a birth certificate; marriage certificate (if applicable); military records (if applicable); police records; and so on;
  • Applicant must submit completed medical examination forms from an examination conducted by an approved panel physician, which will include a record of receiving required vaccinations.

In addition, once the National Visa Center determines that all the required documents have been filed, the visa applicant will undergo an interview at a U.S. embassy or consulate.

Other Issues That Family-Based Immigrant Visa Applicants Should Be Aware Of

Applicants for family-based immigrant visas should understand that there is no set time frame in which visas are issued once the application process has been initiated. In addition, as noted above, Family Preference visas can take a lot of time because of the numerical limitation on the number of visas issued, even where applicants have completed all the necessary paperwork. In addition, any application can be delayed by an applicant who fails comply with all of the documentation and other requirements.

As a general rule, while family-based immigration visas are pending disposition by the USCIS, those family members will not be able to obtain a permit to work in the United States or be able visit the United States under some other provision of immigration law. Instead, those family members should remain in their home countries while the visa application is being processed. While there are a few limited exceptions to these general rules, individuals should not attempt to circumvent the process without obtaining the advice of a qualified immigration attorney. A family member’s failure to comply with all legal requirements can jeopardize their opportunity to obtain the immigration visa they are seeking.

Applicants should also be aware that certain conditions and activities may make them ineligible for a visa, even where all of the documentation and other requirements are met. For example, if an individual has been convicted of drug trafficking, has overstayed a previous visa, or submitted any fraudulent documents, they will not be issued a visa. In some cases, however, an applicant may be able to obtain a waiver from a condition of ineligibility.

Consequently, immigrant visa applicants should not make any final travel arrangements, dispose of property, or give up jobs unless and until a visa is issued. An immigrant visa is generally valid for six months from the date it is issued.

Finally, while a visa allows a foreign citizen to travel to the United States and request permission to enter, applicants should be aware that a visa does not guarantee entry. U.S. Customs and Border Protection officials have authority to permit or deny admission. Therefore, travelers should review important information about admission and entry requirements.

When Should You Hire an Immigration Attorney to Assist in a Family-Based Immigrant Visa?

As noted above, the family immigration visa process can be very complicated, given the number of requirements and documents that must be submitted to USCIS, and given the differing requirements of what type of visa is being sought. In addition, the process can become more complicated if, during the pendency of a family-based visa application, the U.S. sponsor adjusts his status from an LPR to a U.S. citizen by becoming a naturalized citizen of the United States.

Unless U.S. sponsors and visa applicants are prepared to educate themselves on the detailed requirements of obtaining a family-based immigrant visa, their best option may be to hire a qualified immigration attorney, who can do all the necessary work to make sure that the process runs smoothly and that the legal requirements are met without undue delay or confusion.

If you or someone you know is interested in obtaining a family-based immigration visa, Austin, Texas immigration attorney Daniella Lyttle of the Lyttle Law Firm can help. Ms. Lyttle has helped many clients with U.S. immigration matters, and she can help citizens and LPRs obtain visas for their foreign family members. Furthermore, because obtaining visas are a matter of federal law, rather than state law, she can handle visa applications for citizens living in any state, not merely the State of Texas.

Because Ms. Lyttle is fluent in Spanish, Portuguese, and Italian, she can communicate directly with clients in these languages, read and understand documents in these languages, and communicate with any foreign officials in these languages, if necessary.

The Lyttle Law Firm can give you and your family members peace of mind in undertaking this difficult and potentially frustrating and time-consuming task. Once hired, the Lyttle Law Firm will take over the application process from beginning to end, keeping clients informed, and taking the stress out of the process. If you need assistance obtaining a family-based immigration visa for your relative or relatives, contact the Lyttle Law Firm.

Austin Immigration Lawyer Blog - Family-Based Immigration
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