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In order to promote family reunification and family unity, citizens of the United States possess the privilege of sponsoring their spouses, children, parents, and siblings for green cards (permanent resident status). In order to do so, the U.S. citizen sponsor must prove the qualifying family relationship. Any U.S. citizen over the age of 21 can file this petition for his/her spouse, children, parents and siblings.
Additionally, current U.S. permanent residents (green card holders) can petition for their spouses and children to obtain green cards. However, permanent residents cannot sponsor their parents or siblings for permanent resident status.
There is no limit to the number of permanent resident applications, and a petitioner can file for all eligible relatives, provided he or she is able to meet the financial requirements, as each relative must have a financial sponsor.
Additionally, current U.S. permanent residents (green card holders) can petition for their spouses and children to obtain green cards. However, permanent residents cannot sponsor their parents or siblings for permanent resident status.
There is no limit to the number of permanent resident applications, and a petitioner can file for all eligible relatives, provided he or she is able to meet the financial requirements, as each relative must have a financial sponsor.
A U.S. Citizen can sponsor
- His/her spouse
- Unmarried son/daughter of any age
- Married son/daughter of any age
- Parent/Brother/sister, provided that the U.S. citizen sponsor is at least 21 years old
A Lawful Permanent Resident (LPR) can sponsor
- His/her spouse
- Unmarried son/daughter of any age
Family-based immigrant visas fall under two general categories: Immediate Relatives and Family Preference
Immediate Relatives (Unlimited).
The INA defines immediate relative as a U.S. citizen’s spouse, unmarried children (less than 21 years of age), or parents. There are an unlimited number of immigrant visas available each year for immediate relatives of U.S. citizens, and they do not have to wait for visa number to become available.
Family Preference (Limited).
These visa types are for specific, more distant, family relationships with a U.S. citizen or with a Lawful Permanent Resident (LPR). The number of family preference immigrant visas is limited by statute to 480,000 per year. There are four subcategories described below. Immigrant visas are awarded via preference category. Whenever the number of qualified applicants for a category exceeds the available immigrant visas, the remaining applicants must continue to wait until there are available visas. The available immigrant visas are then issued via the chronological order in which the petitions were filed using their priority date. The filing date of a petition becomes the applicant’s priority date. Immigrant visas cannot be issued until an applicant’s priority date is reached. As a result, there is often a backlog and considerable wait period for many of the family preference categories.
| U.S. SPONSOR | RELATIONSHIP | PREFERENCE # |
|---|---|---|
| U.S. Citizen | Unmarried adult children (21 years or older) | 1st Preference 23,400 visas per year, plus any left from the 4th preference |
| LPR | Spouses and minor children | 2nd Preference (2A) 87,900 visas per year |
| LPR | Unmarried adult children (21 years or older) | 2nd Preference (2A) 26,300 visas per year |
| U.S. Citizen | Mrried adult children | 3rd Preference 23,400 visas/year, plus any left over from the 1st and 2nd preferences |
| U.S. Citizen | Bothers and sisters | 4th Preference 65,000 visas/year, plus any left over from the previous preferences |
What is required
Form I-130, Petition for Alien Relative, is an immigrant petition which allows US citizens and Green Card holders to sponsor their immediate family members. Form I-130 is used to establish the familial relationship.
Along with the petition, the applicant may have to submit the following documentations
Along with the petition, the applicant may have to submit the following documentations
- Copies of marriage certificates;
- Copies of divorce decrees;
- Death certificates;
- Passport style photos;
- Documents showing joint ownership of property, bank accounts, etc;
- Birth certificates of children showing applicants name and the child’s name;
- Copies of final adoption or legal custody decrees;
- Affidavits sworn to or affirmed by third parties having person knowledge of the relationship;
- Any other relevant documentation to establish that there is on ongoing marital or familiar union/relationship.
A sponsor must also file Form I-864, Affidavit of Support, which verifies his or her ability to financially support their relatives once they are in the U.S. An affidavit of support is a legally enforceable document which ensures that visa applicants will not become public charges and rely on federal or state benefits.
Admissibility
To qualify for a Green Card, the applicant must be admissible to the United States. Reasons why someone may be inadmissible are listed in INA 212(a) and are called grounds of inadmissibility. There are many grounds of inadmissibility that could potentially cause someone to be ineligible to become a permanent resident. There are health, criminal, security related and other grounds USCIS must consider. In some cases, if an applicant is found to be inadmissible to the United States, they may be eligible to file a waiver to excuse their inadmissibility.
Individuals who are inadmissible and are not eligible for a waiver are not permitted by law to enter or remain in the United States. Generally, a family member is not admissible if s/he is deemed a public charge, was previously present in the United States without being paroled or admitted, committed fraud or misrepresentation, committed or been convicted of multiple crimes, was previously removed, or does not have proper documentation. All potential immigrants are screened by the National Counterterrorism Center (NCC), the Federal Bureau of Investigation (FBI), the Department of Defense (DOD), the Department of State (DOS), and the Customs and Border Patrol (CBP). Finally, interviews of every applicant are conducted by highly trained officers at consular processing centers abroad and upon arrival in the United States.
Individuals who are inadmissible and are not eligible for a waiver are not permitted by law to enter or remain in the United States. Generally, a family member is not admissible if s/he is deemed a public charge, was previously present in the United States without being paroled or admitted, committed fraud or misrepresentation, committed or been convicted of multiple crimes, was previously removed, or does not have proper documentation. All potential immigrants are screened by the National Counterterrorism Center (NCC), the Federal Bureau of Investigation (FBI), the Department of Defense (DOD), the Department of State (DOS), and the Customs and Border Patrol (CBP). Finally, interviews of every applicant are conducted by highly trained officers at consular processing centers abroad and upon arrival in the United States.
Denials
If the petition is denied, the USCIS will send a denial letter. It will describe any and all options, appeals, and time allowed for filing an appeal.
USCIS Filing Fee
The filing fee for Form I-130 is $535 as of December 2017, is nonrefundable, and can be paid by check or money order.
Penalties
If an applicant knowingly and willfully misrepresented or concealed a material fact, or submitted a false document, USCIS may deny his/her petition as well as any other immigrant benefit. Additionally, the applicant may be subject to penalties and criminal prosecution.
I-601, Application for Waiver of Grounds of Inadmissibility
If a U.S. consular officer has determined that a person is ineligible for an immigrant visa or nonimmigrant visa because they are inadmissible to the United States, then they may be able file I-601 application for a waiver of inadmissibility.
Eligibility
| Applicants Who May File an I-601 Waiver | Grounds of Inadmissibility that May be Waived |
|---|---|
| Applicants for adjustment of status to lawful permanent residence OR Applicants for an immigrant, K, or V nonimmigrant visa (and are outside of the U.S., have had a visa interview, and during the interview were found inadmissible) |
1. Heath related grounds of inadmissibility 2. Certain criminal grounds of inadmissibility 3. Immigration fraud and misrepresentation 4. Immigrant membership in a totalitarian party 5. Alien smuggler 6. Being subject to civil penalty 7. The 3-year or 10-year bar due to previous unlawful presence in the U.S. |
| Applicants for Temporary Protected Status | 1. Most grounds of inadmissibility listed in INA 212(a) (e.g. grounds related to health, criminal past, security, labor certification, illegally entering the country, documentation requirements, etc.) |
| Applicants for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act 202 or Haitian Refugee Immigration Fairness Act 902 | 1. All grounds listed for the adjustment of status applicants (except 3-year or 10-year bar due to previously unlawful presence in the U.S.) 2. Aliens previously removed 3. Unlawful presence after previous immigration violations |
| Applicants for an immigrant visa or adjustment of status as a Violence Against Women Act (VAWA) self-petitioner or the child of a VAWA self-petitioner | 1. All grounds listed for the adjustment of status applicants 2. Unlawfully present after previous immigration violations |
| Applicants for adjustment of status based on T nonimmigrant status | 1. Most grounds listed in INA 212(a) (e.g. grounds related to health, criminal past, security, labor certification, illegally entering the country, documentation requirements, etc.) |
| Applicants for adjustment of status as a Special Immigrant Juvenile based on an approved Form I-360 | 1. Most grounds listed in INA 212(a) (e.g. grounds related to health, criminal past, security, labor certification, illegally entering the country, documentation requirements, etc.) |
In order to qualify for the I-601 Waiver, an applicant must have at least one qualifying relative through which s/he can make a claim for the waiver. K visa applicants are exempted from this requirement and need only to demonstrate that the petitioner is an American citizen. For all other applicants, a successful I-601 waiver application must show that a qualifying relative, who is a U.S. citizen or permanent resident spouse or parent, would suffer “extreme hardship” if the applicant were to be denied entry or removed from the U.S. or if the whole family had to move overseas in order to remain together. The hardships are weighed against “mitigating and aggravating factors.” Consequently, the decision-makers have greater discretion to approve or deny I-601 waiver applications than they do with other U.S. immigration benefits.
In making its determinations, the USCIS often considers: 1) the qualifying relative’s health, any ongoing or specialized treatment for a physical or mental condition, availability and quality of care of such treatment abroad, duration of treatment, ability for the qualifying relative to take care of themselves; 2) financial hardship, especially as it relates to a decline in the standard of living for the qualifying relative and his or her children, protection in a foreign country, financial losses, cost of care for sick, elderly, or special needs children; 3) loss of opportunity to receive high quality education; 4) availability of similar employment abroad for the qualifying relative; 5) the applicant’s immigration history; 6) family ties to the United States, especially taking into consideration family separation, ages of children; 7) good moral character; 8) bona fide hardships, the degree of the hardships, evidence in support of the hardship; 9) length of time the applicant has lived in the United States lawfully or unlawfully; 10) criminal history and others.
In making its determinations, the USCIS often considers: 1) the qualifying relative’s health, any ongoing or specialized treatment for a physical or mental condition, availability and quality of care of such treatment abroad, duration of treatment, ability for the qualifying relative to take care of themselves; 2) financial hardship, especially as it relates to a decline in the standard of living for the qualifying relative and his or her children, protection in a foreign country, financial losses, cost of care for sick, elderly, or special needs children; 3) loss of opportunity to receive high quality education; 4) availability of similar employment abroad for the qualifying relative; 5) the applicant’s immigration history; 6) family ties to the United States, especially taking into consideration family separation, ages of children; 7) good moral character; 8) bona fide hardships, the degree of the hardships, evidence in support of the hardship; 9) length of time the applicant has lived in the United States lawfully or unlawfully; 10) criminal history and others.
I-601 Supporting Documents
The following is a list of some documents that may be included in the I-601 petition. The list is not all inclusive and additional documents may be necessary depending on the case:
- Proof of the qualifying relative’s legal status (copy of U.S. birth certificate, naturalization certificate, or U.S. passport for US Citizens or copy of LPR green card);
- Copy of Petitioner’s and Beneficiary’s marriage certificate;
- Copy of Beneficiary’s birth certificate, passport ID page, U.S. visa ID page and I-94, if applicable;
- Copies of birth certificates of any children born to the marriage of the petitioner and beneficiary;
- Beneficiary’s previously filed paperwork with USCIS, if applicable;
- Color photographs of the Beneficiary and Petitioner together along with friends and family members and other evidence which proves the relationship;
- Petitioner and/or Qualifying Relative’s Declaration which explains in detail the extreme hardships;
- Additional substantiating evidence.
Risks
It is not possible to file the I-601 waiver in the U.S., meaning that the applicant would have to leave the United States to file the application abroad. If the applicant’s case is denied, the applicant can be barred from re-entering the U.S. Additionally, those with multiple grounds for inadmissibility might be faced with the possibility of their case being referred to ICE. However, in most cases, the potential benefit of obtaining a green card will outweigh any risks of applying.
USCIS Filing Fee
The filing fee for Form I-601 is $930 as of December 2017, is nonrefundable, and can be paid by check or money order.
Penalties
If applicant knowingly and willfully misrepresented or concealed a material fact on their I-601 waiver, or submitted a false document, USCIS may deny their waiver as well as any other immigrant benefit. Additionally, the applicant may be subject to penalties and criminal prosecution.
Denials
If USCIS denies an I-601 waiver, the applicant may appeal the decision by filing Form I-290B, Notice of Appeal, with the USCIS Administrative Appeals Office.
Validity
Generally, when granted the I-601 does not expire. However, approved waivers are only valid toward the specific grounds of inadmissibility disclosed in the waiver application. Any crimes or incidents that applicant have not disclosed in their application will not be covered under the waiver.
I-601A Application for Provisional Unlawful Presence Waiver
Similar to I-601, certain immigrant visa applicants who are relatives of U.S. Citizens or Lawful Permanent Residents (LPRs) may use I-601A, Application for Provisional Unlawful Presence Waiver to request a provisional waiver of the unlawful presence grounds of inadmissibility under Immigration and Nationality Act Section, before departing the United States to appear at a U.S. Embassy or consulate for an immigrant visa interview. This waiver allows certain individuals, who entered the United States unlawfully, to be able to pursue residency while maintaining family unity, if they are able to meet the criteria of extreme hardship and have a qualifying relative. While this program still requires the applicant to temporarily leave for abroad for their consular interview and immigrant visa, the time a family spends apart is significantly reduced in comparison to the I-601 waiver.
Eligibility
To qualify for the I-601A provisional waiver for unlawful presence the applicant must meet all of the following eleven requirements:
- be physically present in the United States;
- be at least 17 years old;
- be the beneficiary of an approved I-130 visa petition;
- have a U.S. citizen parent or spouse (i.e. a qualifying relative);
- show that if USCIS were to deny applicants I-601A waiver, his/her U.S. citizen parent or spouse would suffer “extreme hardship”;
- be willing to leave the United States to return to the U.S. Consulate to seek an immigrant visa;
- have no other grounds of inadmissibility such as fraud, misrepresentation or convictions of crimes involving moral turpitude;
- have never received an order of removal (or accepted voluntary departure without departing as required);
- are not in removal or deportation proceedings;
- are not an applicant for adjustment of status;
- are not scheduled for an immigrant visa interview at a US consulate abroad.
Applicants are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to them:
- Applicant does not meet all of the conditions listed under eligibility mentioned above;
- Applicant is in removal proceedings that have not been administratively closed;
- Applicant is subject to one or more grounds of inadmissibility other than unlawful presence;
- Applicant has a final order of removal, exclusion, or deportation;
- Applicant is a subject to permanent bar.
Requirements
I-601A waiver requires that applicant has a Legal Permanent Resident (LPR) or United States Citizen (USC) parent or spouse who can serve as his/her qualifying relative and can demonstrate an extreme hardship whether it be financially, emotionally, medically, and/or mentally, as a direct result from the applicant’s absence (separation) OR extreme hardship in the event of the qualifying relative’s relocation to your country. USC or LPR Children (adult or minor) cannot serve as qualifying relatives. Affidavits from applicants and qualifying relatives are suggested along with supporting documentation/evidence.
Denials
USCIS provides no appeals process for denials of applications for a provisional unlawful presence waiver.
USCIS Filing Fee
The filing fee for Form I-601A is $630 as of December 2017, is nonrefundable, and can be paid by check or money order.
Penalties
If the applicant knowingly and willfully misrepresented or concealed a material fact on their I-601A waiver, or submitted a false document, USCIS may deny their waiver as well as any other immigrant benefit. Additionally, the applicant may be subject to penalties and criminal prosecution.
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