Family Based Immigration Visas

Family based immigrant visas are broken up into two major categories by the Immigration and Nationality Act. The first category is for immediate relatives and the second for preference family-sponsored immigrants. To obtain permanent residency through a family based immigrant visa a petition, known as the I-130 form, must be filed by a relative who is either a citizen of the United States or a lawful permanent resident. The definition of a relative for such purposes is a parent, spouse, or child over the age of 21. Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration but can act as co-sponsors for the purposes of the affidavit of support requirement.

Immediate Relatives

INA Section 201(b)(2)(A)(i) states that the term “immediate relatives” means the children, spouses, and parents of a citizen of the United States. In the case of parents qualifying as immediate relatives the U.S. citizen must be at least 21 years of age. Children and spouses, so long as they are not separated from the U.S. citizen, remain categorized as immediate relatives after the date of the citizen’s death and can file a petition for a family based visa up to 2 years after the citizen’s death under INA §204(a)(1)(A)(ii). This subsection also classifies aliens born during a temporary visit abroad to an person lawfully admitted for permanent residence in the United State as an immediate relative. There is no limitation on the number of family based immigrant visas for immediate relatives.

Preference Allocation for Family-Sponsored Immigrants

The number of visas allotted to preference family-sponsored immigrants is set by INA §201(c). Those family-sponsored immigrants shall be allocated visas as follows:

First preference: Unmarried sons and daughters of citizens INA § 203(a)(1)

Second preference: Spouses and unmarried sons and unmarried daughters of permanent residents INA § 203(a)(2)

This preference is further broken up into (A) the spouse or children of an alien lawfully admitted for permanent residence and (B) unmarried sons and daughters that are 21 years of age or older of an alien lawfully admitted for permanent residence.

Third preference: Married sons and married daughters of citizens INA § 203(a)(3)

Fourth preference: Brothers and sisters of citizens INA § 203(a)(4)

Anyone that is subject to one of these preference category immigrant visas is also permitted to have derivative beneficiaries. Derivative beneficiaries are the spouse or children of the person that qualifies under one of the preference category immigrant visas. These derivative beneficiaries would also receive visas once the principle alien seeking a preference category visas receives theirs.

Each month the U.S. Department of State releases a Visa Bulletin that establishes the priority dates that are being admitted that month. The priority dates are the dates of receipt of the immigrant petition by the U.S. Citizenship and Immigration Services department. The bulletin has differing dates for almost every category and has specifically named countries with differing dates. These countries, which are China mainland born, India, Mexico, and the Philippines, are specifically named due to the amount of immigrants from those countries that have already been given visas to live in the United States. An immigrant seeking a visa must wait until his or her priority date becomes current to enter the United States as a permanent resident or adjust their status if they are already in the country.

Contact our M iami-Dade County Family Based Immigration Attorneys

Contact our Miami Family Based Immigration Attorneys at 305-222-7351, toll free at 1-844-VARI-LAW, or e-mail us to schedule an appointment to discuss your Dade County, Broward County, or Monroe County immigration questions and issues.

Our Miami Immigration lawyers accept immigration law cases in Miami-Dade County, Broward County and Monroe County.

Consultations are available in Miami and at several meeting locations throughout Dade and Broward Counties including Lincoln Road in Miami Beach, Galiano Street in Coral Gables, West Country Club Drive in Aventura, Hollywood Boulevard in Hollywood and in the Homestead area. Appointments are also available by telephone and via Skype internet video chat.