Permanent Residence Based on Family Relationships
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Permanent residence based on family relationships falls into two categories.
The first is immediate relatives, for which there is no quota or waiting list. Immediate relatives include unmarried children under the age of 21, spouses, and parents of United States citizens.
A child may include a legitimate child; or a stepchild, as long as the relationship was created before the child's 18th birthday; or a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, as long as the legitimization took place before the child's 18th birthday; or an illegitimate child where the benefit is sought by virtue of the relationship with the natural mother, or the natural father if the father has or had a bona-fide parent child relationship with the person; or a child adopted while under the age of 16 years if the child has been in the legal custody of, and has resided with, the adopting parent for at least 2 years; or a child who is an orphan because of the death, disappearance, abandonment, or desertion by both parents, or where the sole surviving parent is incapable of caring for the child, and the child is under the age of 16.
To file for a spouse, the marriage must be valid under the laws of the country where it was performed and must not be against public policy. A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the US immigration laws does not enable an alien's spouse to obtain US immigration benefits. However, where the marriage was valid at its inception, a petition can be approved even if the parties are not residing together at the time of the interview.
To file for a parent, the US citizen petitioner must be at least 21 years of age.
Other types of family petitions fall under the preference system. There is a limit on the number of persons who can receive permanent residence each year in these categories.
 The first preference is for unmarried sons and daughters of US citizens, over the age of 21.
The second preference is for the spouses and unmarried sons and daughters (any age) of lawful permanent residents of the United States.
The third preference is for the married sons and daughters of US citizens (any age).
The fourth preference is for brothers and sisters of US citizens. The US citizen must be at least 21 years of age to file for a brother or sister.
A petition for permanent residence is filed on US immigration form I-130. The US citizen or permanent resident who files the petition is known as the petitioner, while the alien relative who will be obtaining permanent residence is known as the beneficiary. If the beneficiary is outside of the United States, he or she will apply for a permanent visa at a US consul in their home country, or in any other country where they are residing. In this situation, the petitioner must sign the form and send it, together with evidence of the relationship of the parties and the appropriate filing fee, to the US immigration service office in the United States that handles these types of cases. The form I-130 lists the documents that must be submitted with the petition, as well as the address where the petition must be sent.
The US immigration service center approves the petition and sends it to the National Visa Center in New Hampshire. That office will forward the next set of papers to the beneficiary. The beneficiary must then complete these forms and forward them to the US consul that will process the case. In addition, the beneficiary must obtain the necessary documents required to be presented at the final interview. When the consulate has finished its background checks, it will send an appointment letter to the beneficiary to appear at an interview, and to bring the requested documents. If everything is in order, the beneficiary will receive his or her immigrant visa, as will any accompanying family members. They must enter the United States within six months at which time their passports will be stamped as permanent residents. They will receive work permission, and their permanent resident (green) cards will be mailed to them.
If the alien beneficiary is in the United States, he or she may qualify for adjustment of status with the US immigration service, without the need of traveling to a US consulate outside of the United States. Most persons can qualify for adjustment of status if an immigrant visa petition was filed on their behalf with the US immigration service, or an application for labor certification was filed for them with the US Department of Labor, on or before April 30, 2001. (If the petition or application was filed after January 14, 1998, and on or before April 30, 2001, the individual will also have to show that they were physically present in the US on the date of enactment, which was December 21, 2000). However, if they are not legally in the United States they will have to pay a penalty fee in order to avoid having to return to their home country. At the present time the penalty fee is $1000.00, in addition to the regular filing fees for the application, visa petition, and work permit if desired. Also, a fingerprinting fee is required. The penalty fee is not required if the applicant entered the US legally (even if they are now illegal) and they are the immediate relative of a US citizen, as described above.
The beneficiary will submit the application for adjustment of status together with the petition, which is signed by the petitioner. The beneficiary must also include the necessary documentation, including evidence of the relationship of the parties, a medical exam, photos, evidence of support, and the required filing fee. In addition, the beneficiary may request a work permit while waiting for a final appointment date. The procedures for each US immigration office are different; therefore it is important that you check with the individual office to ascertain their specific method of processing these cases.
When the preliminary processing of the case is completed, the US immigration service will schedule the beneficiary for an interview. During the interview, the petition and application for permanent residence will be reviewed and the parties questioned. If this is a petition based on a marriage, there is a good likelihood that the petitioner and beneficiary will be separated and asked questions outside of the presence of each other in order for the US immigration examiner to determine the validity of the marriage. In these cases, it is very important that you take with you to the interview documentary evidence that you reside together such as tax returns, leases, ownership of property, insurance policies, etc. Naturally, if a child has been born of the marriage, you should take the child's birth certificate with you. Also, remember that the US immigration service wants to see original documents.
If everything is in order, your application will be granted, and evidence of your permanent residence will be stamped in your passport. The resident (green) card will then be mailed to you within 3-6 months. However, since you are a permanent resident as of that date, you can travel outside of the United States and you are permitted to be lawfully employed while waiting for your card to arrive.
If you are not approved for permanent residence because of the commission of a crime or because of some other ground of inadmissibility, you might still be able to obtain a waiver. If the petition is denied, and you wish to appeal, you would file your appeal with the Board of US immigration Appeals on US immigration form I-290 B. If your application for adjustment is denied, you could renew your application at a hearing before an US immigration judge.
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