Immigrating to the United States can be a time consuming process
requiring the successful completion of numerous steps. The last step
following approval of the immigrant visa petition requires the alien to
file an application for Permanent Resident ("green card") status. A
lawful permanent resident is a foreign national who has been granted the
privilege of permanently living and working in the United States.
Individuals who maintain Permanent Residency for five years (three years
for the spouses of U.S. citizens) may be eligible to apply for Naturalization (U.S. Citizenship)

If you want to become a lawful permanent resident based on the fact that
you have a relative who is a citizen of the United States or a relative
who is a lawful permanent resident, you must go through a multi-step
process. An application for an immigrant visa/permanent resident
status can be filed either at a U.S. Consulate (normally located in the
alien's home country) or with the CIS office having jurisdiction over
the alien's residence in the United States.

The first process is called "Consular Processing" while the latter step is called "Adjustment of Status".

Most qualified applicants choose to file an I-485 adjustment application
in the U.S. with the CIS District Office or Service Center.

LIFE Act : Adjustment of Status, Revived Section 245(i)

Adjustment of status refers to the procedure for becoming a lawful
permanent resident without having to leave the United States.

Spouse or child accompanying principal alien. The accompanying spouse or
child of an applicant for adjustment of status may also apply for
adjustment of status. A spouse or child acquired by the principal alien
prior to the approval of the principal's adjustment of status
application may be accorded the derivative priority date and preference
category of the principal alien. The spouse or child may use the
priority date and category when it becomes current. The priority date is
not considered immediately available for these family members.

Immigrant visas are granted only to a spouse and children who accompany or
follow to join the principal beneficiary upon showing proof of immediate
relation to principal and admissibility. Section 203(d) provides that
spouses and children of preference immigrants are entitled to the same
status, and the same order of consideration, if accompanying or
following to join the principal. Whether or not named in the petition,
the child of a family-sponsored first, second, third, or fourth
preference immigrant or the spouse of a family-sponsored third or fourth
preference immigrant, if not otherwise entitled to an immigrant status
and the immediate issuance of a visa, is entitled to derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.

9 FAM 42.53 N6.3 Spouse/Child Acquired After Principal’s Admission
(TL:VISA-61; 6-5-92)  Spouse/Child acquired after the principal
alien’s admission to the United States, except a child of a marriage
existing at the time of the principal alien’s admission into the United
States, is not accorded derivative status,  and thus is not entitled to
the priority date of the principal alien. The principal alien must file
a second preference petition for such spouse or child.

The INA, however, does not generally accord derivative status for family
members of immediate relatives as it does for preference applicants. A
U.S. citizen must file separate immediate relative petitions for the
spouse, each child, and each parent.

In order to take advantage of the 245(i) grand fathering, individuals
must have an immigrant visa petition or a labor certification
application on file with the Immigration Service or Department of Labor
by April 30, 2001. The "grandfather"clause of Section 245(i) is extended
from January 14, 1998 until April 30, 2001. As a result, any beneficiary
of an immigrant visa petition or labor certification application filed
BEFORE April 30, 2001, (including a spouse or child of the alien
beneficiary if eligible to receive a visa under section 203(d) of the
Act) will be able to apply for adjustment of status under Section 245(i)
if necessary. If the qualifying visa petition or application for labor
certification was filed AFTER January 14, 1998, the alien must have been
physically present in the United States on December 21, 2000. This
requirement does NOT apply with respect to a spouse or child
accompanying or following to join a principal alien.

FAMILY BASED PETITIONS

Family reunification is the leading source of immigration to this country. The United States Congress reflects this family reunification priority in the visa allocation system and in the various forms of relief available to certain aliens based on their family relationship to citizens or to lawful permanent residents of the United States. You can qualify for permanent residency if you have a family member in the United States who is either a citizen or a holder of a green card.

Like the Employment-based categories, both Preference Relatives and Accompanying relatives (derivative status) are affected by quota restrictions. (seeQuota Bulletien) You will need to determine how the quota backlogs will impact on your case prior to filing with the government."Immediate Relatives" ARE NOT SUBJECT TO QUOTA BACKLOGS. ( A spouse of a U.S. citizen, an unmarried child (under the age of 21) of a U.S. Citizen parent, or a parent of a U.S. citizen child who is over the age of 21 can immigrate immediately if eligible).

PRIORITY DATE OF RELATIVE PETITIONS

The priority date is the date the preference petition (I-130) was filed
– 22 C.F.R. Sec 42.53(a) which under CIS regulations requires receipt of
the filing fee and a signed petition. 8 C.F.R. Sec 204.1(d).

Family-sponsored preference visas will issued to eligible immigrants
in the order in which a petition in behalf of each has been filed. The
priority date of a preference visa applicant under INA 203(a) or (b)
shall be the filing date of the approved petition that accorded
preference status. A spouse or child of a principal alien acquired prior
to the principal alien's admission shall be entitled to the priority
date of the principal alien, whether or not named in the immigrant visa
application of the principal alien. A child born of a marriage which
existed at the time of a principal alien's admission to the United
States is considered to have been acquired prior to the principal
alien's admission.

9 FAM 42.53 N6.3 Spouse/Child Acquired After Principal’s Admission
(TL:VISA-61; 6-5-92)  Spouse/Child acquired after the principal
alien’s admission to the United States, except a child of a marriage
existing at the time of the principal alien’s admission into the United
States, is not accorded derivative status,  and thus is not entitled to
the priority date of the principal alien. The principal alien must file
a second preference petition for such spouse or child..

CHILD PROTECTION ACT

• June 14, 2006 USCIS memo: Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status (Opting out under the CSPA: The effect of naturalization in family-based immigration. U.S. Citizenship and Immigration Services issued a memo on June 14, 2006, clarifying that the children of a lawful permanent resident will not automatically lose V-2 or V-3 status when the parent naturalizes.)
• INS Guidance on Child Status Protection Act (09/20/02)
• Department of State Cable on Child Status Protection Act (09/08/02)
• Revised Cable on Child Status Protection Act, Department of State ALDAC #2 (01/03/03)(pdf)
• Department of State ALDAC #3 (05/03/03)(pdf)PROCEDURAL INSTRUCTIONS
• Department of State ALDAC #4(05/03/03)(pdf)WHAT CONSTITUTES A "FINAL DETERMINATION" ON AN APPLICATION ADJUDICATED PRIOR TO THE EFFECTIVE DATE
• Section 6 of the Child Status Protection Act, Joe Cuddihy /s/ Director, International Affairs, HQOPRD 70/6, March 23, 2004. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. The purpose of this memorandum is to provide guidance on adjudicating requests tendered pursuant to section 6 of the CSPA.
• CHILD STATUS PROTECTION ACT, PUBLIC LAW 107--208 [H.R. 1209] AUG. 06, 2002

On August 6, 2002 President Bush signed the Child Status Protection Act.
This new law addresses the problem of minor children losing their
eligibility for certain immigration benefits as a result of BCIS
processing delays. (when children of U.S. citizens turn 21 years of age,
they "age-out" of their immediate relative status to the status of
family-first preference: the Fl category.) Public Law (P.L. 107-208), 08/06/02.

The new act provides that the determination of whether an unmarried
alien son or daughter of a US citizen is considered an "immediate
relative child" (under 21 years of age) will be based on the age of the
alien at the time the Petition for Alien Relative (Form I-130) is filed
on his or her behalf, rather than on the date the petition is
adjudicated, as is the case under current law.

The new law also provides similar determinations in the case of
permanent resident parents who subsequently naturalize after having
filed petitions for their sons or daughters and citizen parents who file
petitions for married sons or daughters where such sons or daughters
later divorce. In the first situation, the age determination will be
made at the time of the parents' naturalization. In the latter, the
alien beneficiary's age will be determined as of the date of his or her
divorce.

For the children of legal permanent residents, or those who are
accompanying or following to join on a petition for an immigrant visa,
their eligibility will be determined based on the date that a visa
becomes available to them, but only if they seek to acquire permanent
resident status within one year of such availability.

In addition, the new law provides age-out protection to alien children
who accompany or follow to join parents who have filed for asylum or
refugee status.

Finally, the new law provides that the family-sponsored petition of an
unmarried alien son or daughter whose permanent resident parent
subsequently becomes a naturalized US citizen will be converted to a
petition for an unmarried son or daughter of a US citizen, unless the
son or daughter elects otherwise.

Because certain aliens are subject to quota restrictions, the law
provides for an orderly waiting list, based on the date that the first
official step was taken to immigrate the alien. For family based
applicants, this is the date the BCIS first accepted the immigrant
preference petition filed on the alien's behalf. For employment based
applicants, this date is the earlier of the date a labor certification
was filed on the alien's behalf, or the date an immigrant preference
petition was filed, if no labor certification is required. This date is
known as the alien's priority date. A priority date is not "perfected"
until the immigrant preference petition is actually approved. Once a
preference petition beneficiary receives a priority date, he or she may
be able to retain it even if the preference classification changes. For
example, employment based immigrants are entitled to retain their EB
priority dates even if they change jobs or move switch classifications.
Similarly, family based beneficiaries are allowed to retain their
priority dates if they automatically convert from one classification to
another though marriage, age, or the naturalization of the petitioner.

Quota Bulletien This bulletin summarizes the availability of immigrant numbers. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. United States Department of State, Bureau of Consular Affairs VISA BULLETIN, IMMIGRANT NUMBERS.

"Immediate Relatives" ARE NOT SUBJECT TO THE NUMERICAL LIMITATIONS (quota backlogs) OF INA 201. So, a spouse of a U.S. citizen, an unmarried child (under the age of 21) of a U.S. Citizen parent, or a parent of a U.S. citizen child who is over the age of 21 can immigrate immediately if eligible. The INA, however, does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent.

FAMILY-SPONSORED PREFERENCES: Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

Derivative status for family members: Dependents may enter upon showing proof of immediate relation to principal and admissibility. Immigrant visas are given only to spouse and children who accompany or follow to join the principal beneficiary. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. Whether or not named in the petition, the child of a family-sponsored first, second, third, or fourth preference immigrant or the spouse of a family-sponsored third or fourth preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to derivative status corresponding to the classification and priority date of the beneficiary of the petition.

In the case of a petition according an alien status under INA 203(a)(1) or (3) or status as an unmarried son or daughter under INA 203(a)(2), the petitioner must be a "parent" as defined in INA 101(b)(2) and 22 CFR 40.1. In the case of a petition to accord an alien status under INA 203(a)(4) filed on or after January 1, 1977, the petitioner must be at least twenty-one years of age.

Conversion of petitions – Certain petitions automatically convert to others but retain, if relevant their original priority date – 8 C.F.R. sec. 204.2(i)

1. 1st to 3rd preference upon marriage of son or daughter;

2. Child of United States Citizen marries and goes from immediate relative to 3rd preference;

3. Divorce of child or son or daughter goes from 3rd preference to
immediate relative or 1st preference; For F3 Principal Cases Where the
Applicant Divorces and the Applicant could convert to either IR-2 or F1:
Age is determined using the age the alien had on the date of the
divorce.

4. Child beneficiary of immediate relative on reaching 21 should refer to
Section 2 of the CSPA which addresses the rules for determining whether
certain children are immediate relatives. This section was enacted to
prevent a child from “aging-out” due to Service processing delays.
Specifically, the Service will now use the date of the filing of a Form
I-130, Petition for Alien Relative, to determine the age of a
beneficiary adjusting as the child of a United States citizen (USC). For
example, if a Form I-130 is filed for the child of a USC when the child
is 20, that child will remain eligible for adjustment as an IR-2 or as
an IR-7, even if the adjustment does not occur until after the child
turns 21, provided the child remains unmarried.

5. Naturalization of petitioner changes second preference child or son or
daughter to immediate relative or 1st preference; or if the child is the
child of 2nd preference spouse beneficiary,  United States Citizen
petitioner must now file separate immediate relative petition; Section 2
of the CSPA also amends the Act to allow the children of individuals who
naturalize to remain classifiable as IR-2s or IR-7s if the parent
naturalized while the child was under 21. The Service will now use the
child’s age on the date of the parent’s naturalization to determine
whether the child will be eligible for immediate relative status. For
example, if a lawful permanent resident (LPR) files a Form I-130 for her
16-year old daughter and then naturalizes when the daughter is 20, that
daughter will remain eligible for adjustment as an IR-2 or as an IR-7,
even if the adjustment does not occur until after she turns 21.

6. A child accorded 2A status derivatively loses entitlement to such status
upon reaching 21 and petitioner may have to file a new petition for 2B
preference. Section 3 of the CSPA addresses whether principals and
derivatives in F2A cases will be able to adjust as derivatives even if
they are no longer under the age of 21. The beneficiary’s age will be
locked in on the date that the priority date of the Form I-130 becomes
current (which is the first day of the month that the priority date
became current), less the number of days that the petition is pending,
provided the beneficiary seeks to acquire the status of an LPR within
one year of such availability.

For example, if a Form I-130 was filed in 1998 when the child was 20,
the priority date became available today, and the Form I-130 was not
adjudicated until today, the beneficiary’s “age” when determining
preference category would be 20 (the beneficiary is 24 today, but the
petition was pending for the 4 years), provided the “child” applies for
an immigrant visa or for adjustment of status within one year of the
priority date becoming available. If, however, this same Form I-130 had
been adjudicated in 2000, the beneficiary’s “age” when determining
preference category would be 22 (the beneficiary is 24 today, but the
petition was pending for only 2 years).

It is important to remember that section 3 of the CSPA requires that the
beneficiary apply for adjustment of status or for an immigrant visa
within one year of the date the priority date became available. Thus, if
a Form I-130 was filed on behalf of the child of an LPR, the priority
date became available 3 years ago when the beneficiary was still under
21, but that beneficiary did not apply for adjustment of status within
one year of the priority date becoming available and has since turned
21, the provisions of the CSPA will not apply to this beneficiary

To summarize, there are three basic categories:

1. Immediate Relatives of U.S. Citizens In order to qualify for permanent residency as an immediate relative, you must be a spouse of a U.S. citizen, an unmarried child (under the age of 21) of a U.S. Citizen parent, or a parent of a U.S. citizen child who is over the age of 21 (note: there are no quota restrictions on this category). 'IMMEDIATE RELATIVES" ARE NOT SUBJECT TO THE NUMERICAL LIMITATIONS OF INA 201. 9 FAM 42.21 . "Immediate Relative" Defined
2. Preference Relatives of U.S. Citizens or green card holders: In order to qualify under the preference categories, an person must qualify in one of the following four categories:(A) Family-based First Preference: Unmarried people of any age who have a U.S. Citizen parent-- "Unmarried Sons and Daughters of Citizens"; (B) Family-based Second Preference: Spouses and Children of permanent residents, and Unmarried Sons and Daughters of Permanent Residents (unmarried children of any age) who have a parent who holds green card; (C) Family-based Third Preference: Married "Sons and Daughters of Citizens" (D) Family-based Fourth Preference: Brothers and Sisters of Adult Citizens (note: these siblings must be over 21 years of age)
3. Accompanying relatives of individuals who have established a preference category: If an individual obtains permanent residency through one of the above listed preference categories, he/she can have their spouse and unmarried children under the age of 21 immigrate immediately with them. The INA does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent. [INA 203(d) - treatment of family members for preference family-sponsored immigrants, does not apply to Immigrant classes described in INA 201(b), for Immediate Relatives. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.

   When Marital Status Changes (TL:VISA-173; 11-10-1997)

   a. An approved first preference petition for an unmarried son or daughter automatically converts to third preference when the applicant marries. The applicant retaBCIS the priority date of the original petition which at the time of filing accorded first preference status.

   b. If a child beneficiary of an immediate relative petition marries, the petition automatically converts to third preference. The applicant's priority date is the filing date of the petition which originally accorded IR-2 status; or

   c. An approved third preference petition converts to a first preference (or IR-2 if under 21) if the applicant is widowed or divorced. The applicant retaBCIS the priority date of the original petition which at the time of filing accorded third preference status.

   When the Petitioner Becomes Naturalized

   a. Upon the naturalization of the petitioner, the approved second preference petition for the spouse automatically converts to status as an immediate relative.

   b. Upon the naturalization of a petitioning parent, an approved second preference petition for a child beneficiary automatically converts to status as an immediate relative. A child who has second preference status derivatively does not benefit from the parent's naturalization, because the child is not the beneficiary of an approved petition and there is no derivative entitlement under the immediate relative provision. Such a child loses second preference status and acquires no other until such time as a petition naming the child as the beneficiary is filed and approved.

   c. If the son and/or daughter who is the named beneficiary of a second preference petition is age 21 or older and the petitioner becomes naturalized, the status accorded by the petition converts to first preference. The applicant obtains the priority date of the petition which at the time of filing accorded second preference status.

   When a Child Reaches Majority

   On August 6, 2002 President Bush signed the Child Status Protection Act.
   This new law addresses the problem of minor children losing their
   eligibility for certain immigration benefits as a result of BCIS
   processing delays. (when children of U.S. citizens turn 21 years of age,
   they "age-out" of their immediate relative status to the status of
   family-first preference: the Fl category.)

   The new act provides that the determination of whether an unmarried
   alien son or daughter of a US citizen is considered an "immediate
   relative child" (under 21 years of age) will be based on the age of the
   alien at the time the Petition for Alien Relative (Form I-130) is filed
   on his or her behalf, rather than on the date the petition is
   adjudicated, as is the case under current law.

   The new law also provides similar determinations in the case of
   permanent resident parents who subsequently naturalize after having
   filed petitions for their sons or daughters and citizen parents who file
   petitions for married sons or daughters where such sons or daughters
   later divorce. In the first situation, the age determination will be
   made at the time of the parents' naturalization. In the latter, the
   alien beneficiary's age will be determined as of the date of his or her
   divorce.

   For the children of legal permanent residents, or those who are
   accompanying or following to join on a petition for an immigrant visa,
   their eligibility will be determined based on the date that a visa
   becomes available to them, but only if they seek to acquire permanent
   resident status within one year of such availability. In addition, the
   new law provides age-out protection to alien children who accompany or
   follow to join parents who have filed for asylum or refugee status.

   

   Can you explain something about bringing family members to the U.S.? How should the application be made? How long is it likely to take?

   1. Family Petitions: If you are a U.S. citizen, It usually takes 6-12 months for your parents, spouse or child (under 21) to enter if you are a citizen because there is no quota for those categories (known as the "immediate relative" categories) but if you file for your brother it could take 10-12 years. If a GC holder files for a spouse or an unmarried child, it could take 4 to 6 years. For the procedural details, it is advisable to consult your attorney.
   2. Family Based Preference 2B Time Periods: GC Parent filing for adult (over 21) unmarried child is 6/7 years.
   3. Family Petition & H1 w/Dual Intent: Under recent laws (Immigration Act of 1990 as regularly amended), if one has a family based or employment based GC case pending, one can still be eligible for an H1 status. The H1 is one of the best options available since the "doctrine of dual intent" applies to H visas (i.e. you can have both a nonimmigrant & immigrant intention under the H & L visa status under the new law.) As long as you maintain your status, you do not need to leave the country. Memo on Dual Intent for H-1 and L-1 Nonimmigrants. On March 14, 2000, Robert L. Bach, Executive Associate Commissioner, Office of Policy and Planning, issued a memorandum regarding AFM Update: Dual Intent Follow-up Guidance; H-1 and L-1; Pending Applications for Adjustment of Status, validity of nonimmigrant status, and the elimination of the advance parole requirement
   4. Green card holder petitioning for relatives: GC holders can petition only for their spouses and sons/daughters (any age). One must be a citizen to file for a parent, a married son or daughter or a sibling.
   5. Definitions of "Parents", "Child(ren)"(adopted children), Brothers and Sisters. (.pdf file)
   6. Orphans (.pdf file, click on link)
   7. What is a "Valid Marriage" Under Immigration law? (.pdf file)
   8. Validity of Marriages Abroad (.pdf file)
   9. Priority Dates and Counselor Processing: Family-sponsored and employment-based preference visas will issued to eligible immigrants in the order in which a petition in behalf of each has been filed. The priority date of a preference visa applicant under INA 203(a) or (b) shall be the filing date of the approved petition that accorded preference status. A spouse or child of a principal alien acquired prior to the principal alien's admission shall be entitled to the priority date of the principal alien, whether or not named in the immigrant visa application of the principal alien. A child born of a marriage which existed at the time of a principal alien's admission to the United States is considered to have been acquired prior to the principal alien's admission.
   10. American Consulates and Embassies.
   11. An alien shall be classifiable as a family-sponsored immigrant under INA 203(a)(1), (2), (3) or (4) if the consular officer has received from CIS a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien has the relationship to the petitioner indicated in the petition.
   12. At the time that the immigrant visa petition is filed, the alien must indicate whether s/he will be processing the application for the visa abroad through a U.S. Consulate or in the U.S. through the CIS. If the alien will be processing the visa application through a U.S. Consulate, upon approval of the petition, the BCIS will notify the National Visa Center (NVC). Once the NVC receives the petition, it will send a Visa Packet III application package to the alien. Packet III consists of a set of forms and BCIStructions of additional documentation that will be required. Upon the Consulate's receipt of the alien's completed forms, it will generate Packet IV and advise the alien of the date/time of his/her immigrant visa interview.
       Consular officers are authorized to grant to an alien the immediate relative or preference status accorded in a petition approved in the alien's behalf upon receipt from BCIS of the approved petition or official notification of its approval. The status shall be granted for the period authorized by law or regulation. The approval of a petition by BCIS does not relieve the alien of the burden of establishing to the satisfaction of the consular officer that the alien is eligible in all respects to receive a visa.
   13. The consular officer may not issue a visa to an alien as an immediate relative entitled to status under 201(b), a family- sponsored immigrant entitled to status under 203(a)(1)-(4), or employment-based preference immigrant entitled to status under INA 203(b)(1) - (5), unless the officer has received a petition filed and approved in accordance with INA 204 or official notification of such filing and approval.
   14. The alien will usually have several weeks advance notice of the appointment. U.S. Consulates may require additional documents that are not required when the alien adjusts status in the U.S. Some of the additional documents can include Police Certificates for each country in which the alien has resided for more than 6 months after reaching the age of 16. In addition, Consular Processing requires actual interviews for all aliens and attorneys are not normally allowed to accompany aliens at the interviews. If something goes wrong at the interview or the Consular Official requests additional information, the alien will be "stuck" outside the U.S. until the issues are resolved. (cannot appeal these decisions)
   15. American Consulates and Embassies Bureau of Consular Affairs

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