QUICK REFERENCE TO FAMILY-BASED PERMANENT RESIDENCE
by: Gary Chodorow
revised: Mar. 22, 2003

This article briefly describes the family-based permanent residence classifications available under U.S. immigration law. A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. Generally, the procedure for family-based permanent residence is as follows:

• First, USCIS must approve an immigrant visa petition, I-130 Petition for Alien Relative for you. This petition is filed by your relative (sponsor) and must be accompanied by proof of your relationship to the requesting relative. Battered spouses and children seeking classification as immediate relatives of U.S. citizens or in the family-based second preference do not need the assistance of a sponsor.

• Second, if you are not the immediate relative of a a U.S. citizen, the Department of State must determine if an immigrant visa number is immediately available to you, the foreign national, even if you are already in the United States. When an immigrant visa number becomes immediately available to you, it means that you can apply to have one of the immigrant visa numbers assigned to you. You can check the status of a visa number in the Department of State's Visa Bulletin.

• Third, if you are already in the United States, you may apply to change your status to that of a lawful permanent resident after a visa number becomes available for you. This is one way you can apply to secure an immigrant visa number. If you are outside the United States when an immigrant visa number becomes available for you, you must then go to the U.S. consulate servicing the area in which you reside to complete your processing. This is the other way in which you can apply to secure an immigrant visa number.  
   

IMMEDIATE RELATIVES OF U.S. CITIZENS

Spouses:

In order to obtain immigration benefits available to a "spouse", there must be a valid and subsisting marriage between the parties.

Generally, marriage is valid for immigration purposes if it is recognized by the law of the place where it occurs. However, a marriage between persons of the same sex will not be valid for immigration purposes, regardless of its possible validity where it occurred. Marriages that are against public policy, such as polygamous or incestuous marriages, are not valid for immigration purposes even if valid in the place where it occurred. Proxy marriages are not recognized under the Immigration and Nationality Act, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.

Moreover, the marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain widow(er)s of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view must be "viable" to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide.

Widow(er)s of U.S. Citizens:

A widow(er) of a U.S. citizen may file an immigrant petition under the following circumstances:

• The widow(er) was married for at least two years to a U.S. citizen. (The deceased spouse need not have been a U.S. citizen for the entire two-year period, so long as he or she was a citizen at the time of death).
• The petition is filed within two years of the death of the U.S. citizen.
• The parties were not legally separated at the time of the U.S. citizen's death.
• The widow(er) has not remarried.

The widow(er) may include an unmarried, minor child in the petition, or a separate petition may be used.

Children:

For the purposes of family-based immigration, a "child" is defined as follows:

• a child born in wedlock;
• a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
• a child legitimated under the law of the child's residence or domicile, or under the law of father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
• a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;
• a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or
• certain orphans: a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration process is completed. Accordingly, the child must be unmarried when granted permanent resident status, and the child must be under 21 years of age at that time, with the exceptions described in the Child Status Protection Act.

Parents:

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. "Parent" means a parent who is such by reason of his or her relationship to a "child" within the statutory definition of the term as described above. However, the "child" must have met the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought.

PREFERENCE CATEGORIES

Apart from immediate relatives of U.S. citizens, relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:

First Preference:

Unmarried sons and daughters of U.S. citizens. The immigration law defines a “son or daughter” as a person who was once a “child” (as described above) but who is now over the age of 21.

Second Preference:

Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.

Note that a child born to a permanent resident mother during a visit abroad may be admitted to the U.S. as a permanent resident without the petitioning procedure if: (1) the child is admitted to the U.S. within two years of birth; (2) the child is accompanied by a permanent resident parent upon the parent's first return to the U.S. after the birth; and (3) the parent is eligible for admission to the U.S.

Third Preference:

Married sons and daughters of U.S. citizens.

Fourth Preference:

Siblings of adult U.S. citizens. A sibling is a brother, sister, stepbrother, stepsister, or adopted brother or sister. For the necessary sibling relationship to exist, each person must have been a "child" (as defined above) of at least one of the same parents. The siblings need not share the same biological parents as long as both became “children” at the appropriate time (before the age of 16 in cases of adoption, and before the age of 18 for stepchildren).