Family Based Immigration
At Shestopalko Law we believe in the strength of the family and uniting families through immigration. We know that your family is unique and we will do our best to find the solution that is right for your individual situation.
United States immigration law allows for the immigration of aliens to the United States based on their relationship to a United States citizen or a green card holder (legal permanent resident). United States citizens and green card holders (lawful permanent residents) are entitled to file an immigrant petition for his or her qualifying relative to immigrate to the United States. United States Citizenship and Immigration Services issues visas or green cards (grants lawful permanent resident status) upon approval of immigrant petition filed by qualifying family member. After the petition is approved, the visa may be issued in as little as 90 days or as long as 25 years, depending upon which of the categories apply and depending on whether the category is subject to the annual cap. However, not all family relationships entitle immigrants to move to the United States.
United States Citizens may sponsor the following family members (categories) to migrate to the United States immediately:
- Fiancé(e) and fiancé(e)’s children under the age of 21 (no annual cap);
- Husband, wife, or child under the age of 21* (immediate relative category – no annual cap)
- A parent if the United States citizen child is at least 21 years of age (immediate relative category – no annual cap)
United States Citizens may sponsor the following family members (categories) to migrate to the United States under an annual cap (categories of aliens who have to wait in the visa que for his or hers priority date*):
- An unmarried child over the age of 21 and his or her children (first preference category – limited by annual cap)**
- Married child of any age and his or her spouse and children (third preference category – limited by annual cap)
- Brother or sister of a United States citizen whose age is over 21 years old and the brother’s or sister’s spouses and children (fourth preference category – limited by annual cap)
For a current list of priority dates, see the United States Department of State’s current Visa Bulletin.
* The priority date is used to determine an immigrant’s place in the visa queue. When the priority date becomes available (current) the immigrant may be able to apply for a visa or adjustment of status and obtain green card (lawful permanent resident status) in the United States.
** Under the Child Status Protection Act, Immediate relative children’s age is frozen on the date that Form I-130 was successfully filed. Thus, if the child was under the age of 21 at the time the petition was filed, he or she is protected by Child Status Protection Act from aging out of his or her category (becoming older than 21). However, the child must remain unmarried in order to qualify.
Green card holder (lawful permanent residents) may sponsor the following family members (categories) to migrate to the United States under an annual cap (categories of aliens who have to wait in the visa que for his or hers priority date*):
- Husband or wife, and unmarried children under the age of 21* (second preference A category – limited by annual cap)
- Unmarried child over the age of 21 (second preference B category – limited by annual cap)**
For a current list of priority dates, see the United States Department of State’s current Visa Bulletin.
* The priority date is used to determine an immigrant’s place in the visa queue. When the priority date becomes available (current) the immigrant may be able to apply for a visa or adjustment of status and obtain green card (lawful permanent resident status) in the United States.
** Under the Child Status Protection Act, Immediate relative children’s age is frozen on the date that Form I-130 was successfully filed. Thus, if the child was under the age of 21 at the time the petition was filed, he or she is protected by Child Status Protection Act from aging out of his or her category (becoming older than 21). However, the child must remain unmarried in order to qualify.
A Fiancé/Fiancée Visa (officially known as a K1 Visa) is a non-immigrant visa that allows the foreign fiancé/fiancée of a United States Citizen to enter the United States for the sole purpose of getting married. These visas are generally considered the quickest way to legally bring a foreign Fiancé/Fiancée to the United States with the intentions of marriage and immigration. Upon arrival into the United States, Fiancé/Fiancée usually has to marry the United States citizen within 90 days or be subject to visa overstay or deportation and removal. After marrying the United States citizen, the Fiancé/Fiancée may get a green card (adjust his or her immigration status).
General Requirements
All United States citizens and green card holders (lawful permanent residents) who petition to have his or hers family members to come to the United States must act as sponsors and provide an Affidavit of Support (financial support) for his or her family member.
The Affidavit of Support is required to assure the United States Citizenship and Immigration Services that the qualifying family members will not ask for financial or medical support from the United States government (become a public charge). The United States citizen or a green card holder may get another person to sponsor his or her family member.
To qualify as a sponsor the individual must:
- Be 18 or older
- Be United States citizen or be a green card holder (Lawful Permanent Resident)
- Live in the United States
- Have a sufficient income to sponsor the immigrant. The sponsor must have an income of 125% of the federal poverty income level for his or her family size IN ADDITION to the sponsored immigrant(s). Please visit the 125% federal poverty income level chart to learn the necessary income required for the family size and the sponsored immigrant(s).
In the event that the primary sponsor does not earn enough income, a co-sponsor may be used. The co-sponsor must meet the above requirements. In the event of the death of the sponsor, a substitute Affidavit of Support may be submitted from another close relative only.
The affidavit is an enforceable contract that remains in effect until the alien becomes a citizen or has worked for more than 40 qualifying quarters as defined by the Social Security Act. The sponsor and/or co-sponsor can be required to reimburse any state or federal agency for most public benefits that the alien receives.
The following documentation needs to be submitted by United States citizen or green card holder (lawful permanent resident) and the qualifying family immigrant:
- Biographic information from sponsoring United States citizen or green card holder (lawful permanent resident )
- Biographic information from qualifying family immigrant
- Sponsoring United States citizen’s or green card holder’s (lawful permanent resident’s) passport, birth certificate or green card
- Documents proving family relationship between sponsoring United States citizen or green card holder (lawful permanent resident ) and qualifying family member
- Affidavit of Support from sponsor
- Qualifying family member’s medical documentation
- Qualifying family member’s divorce decrees if necessary
- Any qualifying family member’s criminal history
- Medical Examination
- Other documentation relevant to the immigration petition
Once the Immigration Authorities determines that the alien’s immigration petition is complete with all the required documents, the agency schedule the applicant’s interview appointment at a United States Embassy or Consulate. The sponsored alien, attorney, will receive appointment emails, or letters (if no email address is available), containing the date and time of the applicant’s visa interview. At the interview, the consular officer will question the applicant regarding his or her application and decided whether a real relationship exists between the applicant and a quilting United States citizen or a green card holder (lawful permanent resident). The consular officer will then determine whether the applicant is eligible to receive an immigrant visa.
Once the Immigration Authorities determines that the alien’s immigration petition is complete with all the required documents, the agency schedule the applicant’s interview appointment at a United States Embassy or Consulate. The sponsored alien, attorney, will receive appointment emails, or letters (if no email address is available), containing the date and time of the applicant’s visa interview. At the interview, the consular officer will question the applicant regarding his or her application and decided whether a real relationship exists between the applicant and a qualifying United States citizen or a green card holder (lawful permanent resident). The consular officer will then determine whether the applicant is eligible to receive an immigrant visa.
Here is where we can help!
For more specific help with your individual case, call Shestopalko Law today at (585) 506-7356, email andriy@shestopalkolaw.com or fill out our contact form.
Disclaimer: This article discusses general legal issues, but it does not constitute legal advice. No one should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Shestopalko Law expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.