Family is a big part of immigration law. We already have an entire page devoted to marriage-based immigration cases. But other family members, from children, to parents, to brothers and sisters, also involve several types of cases.
This page will discuss all these other family-based petitions. We discuss immediate relative petitions and preference petitions. We delve into a discussion on priority dates, and of the process of petitioning a sibling, parent, married and unmarried children, and adult and minor children.
Finally we touch upon essential topics in family based immigration, such as INA § 245(i) (for those who overstayed or entered illegally), PL 111-83 (for those were the principal beneficiary or petitioner died), and CSPA (Child Status Protection Act) for those whose kids aged out.
There is this classification called “immediate relative” petition. These are the faster I-130 petitions and what makes them special is the fact that beneficiaries can apply for a green card despite overstaying their status, provided they entered legally. This of course is conditioned on a lot of other factors – criminal records, fraud, false claim to citizenship etc.
Another good thing with being an immediate relative is that visa numbers are always available. Thus, you don’t have priority dates. It is always current. Thus, there is no extra waiting time other than the pendency of the petition and application (whether it’s for adjustment of status or consular processing)
The three kinds of immediate relative petitions are as follows
- Petition by a US Citizen spouse to a foreign spouse
- Petition by a US Citizen son or daughter over 21 years old to a parent
- Petition by a US Citizen parent to a son or daughter (or stepchild) 21 or younger.
The form for the Petition is still the I-130. Unlike a spousal immediate relative petition though, you don’t need to fill out a G-325A to accompany the I-130. You would need the G-325A though to accompany your I-485 application, which can be simultaneously filed with the I-130 for immediate relative petitions.
You don’t file the I-485 though for consular processing cases. You start with the I-130, wait for its approval, then proceed with the Affidavit of Support and Packet 3 and 4 on the way to consular processing.
For Petitions by a US Citizen to a parent, a copy of the birth certificate of the petitioning son or daughter plus the marriage certificate copy of the parent should accompany the I-130, as well as the $420 filing fee. No G325s are required unless filing the I-485s simultaneously.
For Petitions by a US Citizen parent to a son or daughter or stepchild, a copy of the beneficiary’s birth certificate plus the marriage certificate copy of the petition, should accompany the petition, together with the $420 filing fee. Again, no G325as required unless filing the I-485 simultaneously.
Again, if the you as the beneficiary are here in the US and you entered legall (unless 245(i) applies), you can simultaneously file the I-130 and the I-485.
Note that the I-485 should be accompanied by the following documents:
- Copy of birth certificate
- Copy of visa page of passport
- Copy of biographic page of passport
- Copy of I-94
- Copy of birth certificate
- 2-6 passport pictures (depending on whether you want to file with a work permit and /or advance paroled application)
- Copy of marriage certificate (if any)
- Copy of divorce decrees (if any)
Now, aside from these immediate relative petitions, there are also other types of family petitions that could lead to immigration benefitis.
There is this thing called “preference” family petitions. What sets them apart from family I-130 Petitions is that Preference family petitions involve priority dates, where you have to periodically check a monthly chart called the US Visa Bulletin to check if you can either apply for adjustment of status already (assuming you maintained non-immigrant status in the US) or proceed with consular processing for your immigrant visa. The priority dates are separated into categories and countries (China, Mexico, India, Philippines, and “Other Countries”). Take note also that a pending preference I-130 petition for you, if you are in the US, does not give you status to stay in the US. It also does not authorize you to apply for a work permit.
FIRST PREFERENCE: UNMARRIED ADULT SON OR DAUGHTER OF US CITIZEN
First preference I-130 petitions are those that are filed by a US Citizen to an unmarried, adult (over 21) , son or daughter. A copy of the naturalization certificate of the petitioner plus a copy of the birth certificate of the beneficiary are needed in this petition.
Also, if the petition is pending but then your son or daughter gets married, the petition then switches from a first preference petition to a third preference petition. This delays the process of having your son or daughter immigrate because the waiting time for third preference petitions is longer than first preference petitions. At the time of this writing (May 2013), the difference is about four years.
SECOND PREFERENCE: SPOUSE OR UNMARRIED SONS AND DAUGHTERS OF PERMANENT RESIDENTS
Second Preference A
It’s not only US Citizens who can petition a foreigner. If you are a permanent resident, you can also petition certain family members, such as your spouse, or an unmarried son or daughter (21 or younger for Family Second Preference A – or F2A).
The Family 2A Petition would require a copy of your permanent resident card as the petitioner, a copy of your marriage certificate, and a copy of the birth certificate of your son or daughter as the beneficiary. Again, there is a long waiting time for these petitions, as you would see on the visa bulletin.
Also note that there is a different priority date for Mexico, China, India, Philippines, and “Other Countries” (goes with other preference categories as well).
Take note that as a permanent resident, you cannot petition your parents.
Also, if the beneficiary turns over 21, then the petition becomes a Family 2B Petition, moving back the priority dates once again.
Second Preference B
You as a permanent resident holder can also petition for your unmarried son or daughter over 21. A copy of your permanent resident card plus your son or daughter’s birth certificate copy are essential parts of this petition.
Note that if while the I-130 F2B petition is pending, the petitioner becomes a US Citizen, and the beneficiary remains unmarried, then the petition becomes a first preference petition.
Sometimes, the first preference petition takes longer than the F2B petition, such as in the Philippines, which is weird because there you are becoming a citizen and your petition would actually take longer. In that case, you as the petitioner can opt out of the “first preference” designation to retain the priority date and faster waiting time of the F2B priority date.
Same as with first preference petitions when the beneficiary gets married, some conditions would change the second preference petition as well. For example, if the beneficiary gets married, then the petition is nullified. Or if the beneficiary turns 21, it moves from a Family 2A to a Family 2B petition, again moving back the priority dates and delaying the case.
Third Preference I-130 Petitions are those were the Petitioner is a US Citizen, and the beneficiary is a married son or daughter over 21. Same as above, these petitions take many years, and you’d have to check the visa bulletin every month.
Note that the sons and daughters of the beneficiaries become derivative beneficiaries as well, together with your son or daughter’s spouse.
A copy of the petitioner’s naturalization certificate, marriage certificate, beneficiary’s marriage certificate, and beneficiary’s birth certificate should be included with the I-130 petition, together with the $420 filing fee.
These are the petitions with the longest wait times – the longest priority dates. For some countries such as the Philippines, these even take over 20 years.
Note also that the petitioner must be a US Citizen, and that permanent residents cannot petition their siblings.
The long wait times for these petitions is why most derivatives of these petitions don’t make it unless CSPA applies, because by the time priority dates are available, the derivatives have already aged out.
Filing the Petition itself is easy though. You need a copy of your birth certificate and your sibling’s, to show a sibling relationship through the names of your parents. No G325A nor passport pictures are also required for the petition. $420 and form I-130 are.
Crossed the Border Illegally
This is the most common marriage-based fact pattern: foreigner enters the United States legally on a non-immigrant visa such as a tourist or student, has an I-94, overstays and /or violates their status by working illegally, but later falls in love and marries a U.S. Citizen in good faith. Those people can be petitioned by their spouse and file for a green card in the United States.
But what if you entered illegally by crossing the border? Say you crossed through Canada, rode a van and was let in without inspection, or you managed to cross the US-Mexico border in California, Texas, or Arizona without inspection, and you married a U.S. Citizen, can you still get a green card based on marriage without leaving the United States?
Or for different beneficiaries of family or employment petitions who overstayed their status, or crossed the border illegally, can they still eventually be able to apply for adjustment of status?
This law called INA § 245(i) allows some of these people to apply for a green card. The law’s application comes in two important petition deadlines which will be explained below, January 14, 1998 and April 30, 2001.
We assume that there are no other basis for inadmissibility other than illegal work and illegal entry. So if you are convicted of certain crimes or committed fraud in certain contexts, such as misrepresenting in a job application or I-9 form that you are a U.S. Citizen, inadmissibility may still apply.
Beneficiary of a Petition Filed Before January 14, 1998
If you had a labor certification or an I-130 visa petition filed on your behalf on or before January 14, 1998, even if you entered without inspection to the U.S. at any time, INA § 245(i) protects you in the sense that you can file for a green card in the United States through a petition that is current, such as a preference employment or family petition where visa numbers are available, or immediate relative cases such as marriage to a U.S. Citizen. “
I-130 visa petitions filed “on your behalf” includes those petitions in which you were a derivative beneficiary.
Let’s say your US Citizen uncle filed an I-130 sibling petition for your mom or dad in 1997 and you were under 21, then you will be considered as having an “I-130 visa petition filed on your behalf.” Take note that the law only states that a petition or labor certification has to be FILED, it does not even need to be approved.
The U.S. Citizen spouse files the I-130 Immigrant Petition and you simultaneously file the I-485 Adjustment of Status application, but unlike the typical marriage case, you also have to file this together with Supplement A to the I-485 with an extra $1000 fee payable to the USCIS. All basic documents that go along with a marriage case should be filed, but in addition to that, proof that you were a beneficiary of a labor certification or immigrant petition should also be included, such a copy of an I-130 receipt or approval notice with a January 14, 1998 receipt date or earlier, or a labor certification receipt proof on those dates.
Beneficiary of a Labor Certification or Visa Petition Filed After January 14, 1998, but on or before April 30, 2001
Beneficiaries of a labor certification or visa petition filed on their behalf after January 14, 1998 but on or before April 30, 2001 can also get a green card through INA § 245(i) a petition that is current, such as a preference employment or family petition where visa numbers are available, or immediate relative cases such as marriage to a U.S. Citizen, but only if they were physically present in the U.S. on December 21, 2000. So in addition to the forms and fees of a typical case, proof that you were the beneficiary of a petition or labor certification filed on or before April 30, 2001 plus proof that you were here on December 21, 2000 should be submitted. You don’t have to have a document with December 21, 2000 specifically on it. School records, tax returns, driver’s licenses, pay stubs, utility bills, insurance documents, bank statements etc. with a 2000 and 2001 date would suffice, as long as it can be implied based on those that you were here on December 21, 2000. Supplement A to I-485 plus the extra $1000 fee should also be included.
The two scenarios described above fall under the Immigration and Nationality Act (INA) § 245(i). Immigration lawyers, judges, officers, in dealing with people who crossed the border in marriage to U.S. citizen cases, simply ask if he or she “has 245(i)”. It is a shortcut way of asking whether you are a beneficiary of a petition filed on or before January 14, 1998, or the beneficiary of a petition filed on or before April 30, 2001 who also meets the December 14, 2000 physical presence requirement.
For all examples, B is the foreigner who enters without inspection and eventually gets married to a US Citizen.
1. Can Get a Green Card Through Marriage
a. U.S. Citizen Brother A files an I-130 petition for B brother in 1996. B crosses the Mexican border in 1997 without inspection. B marries a US Citizen in 2009. In this case, Section 245(i) protects B. B can apply for a green card through marriage. B was the beneficiary of a petition filed on or before January 14, 1998.
b. B crosses the Mexican border in 1997 without inspection. U.S. Citizen Brother files an I-130 petition for B in March 2001. B marries a U.S. Citizen in 2009. Section 245(i) protects B. B can apply for a green card through marriage. B was the beneficiary of a petition filed on or before April 30, 2001 and was physically present here on December 21, 2000.
c. U.S. Citizen Brother files an I-130 petition for B in November 1997. B crosses the Mexican border without inspection in January 1998. B married a U.S. Citizen in January 2009. Section 245(i) protects B. B can apply for a green card. B was the beneficiary of a petition filed on or before January 14, 1998, thus no need to show December 21, 2000 physical presence.
2. Can’t Get a Green Card in the U.S. Even Through Marriage
a. U.S. Citizen Brother files an I-130 petition for B in January 1999. B illegally crosses the border on January 2001. B marries a U.S. Citizen in January 2009. Section 245(i) does not protect B. B cannot apply for a green card. B was the beneficiary of a petition filed after January 14, 1998 but on or before April 30, 2001, but B does not have physical presence in the U.S on December 21, 2000.
b. B crosses the Mexican border without inspection in 1995. B married a U.S. Citizen in January 2009. Nobody ever petitioned for B before January 14, 1998 or April 30, 2001. Section 245(i) does not protect B. B cannot get a green card through marriage.
c. B crosses the Mexican border without inspection in 1995. B’s U.S. Citizen brother files an I-130 petition for him on May 1, 2001. B marries a U.S. Citizen in 2009. Section 245(i) does not protect B. B cannot get a green card through marriage. The I-130 was filed after April 30, 2001.
Child Status Protection Act
Let’s say a US Citizen sister petitions her brother in the Philippines, and her brother has kids, the kids are derivative beneficiaries (they’re included in the petition). They are derivatives because they fit the definition of “child”. Before CSPA, “child” meant an unmarried son or daughter under the age of 21. Your kids turn 21, they’re not a “child” anymore and could not come to the US as derivatives when the parent applies for an immigrant visa (after that long wait).
The problem is that by the time visa numbers become available for the brother (20 years or so for Philippines), the child could be over 21. So let’s say when the sister petitioned brother (it’s called an I-130 Petition), the son was 1 year old, and they wait 21 years, after the 21-year wait where brother could finally immigrate, son could not come anyway because he loses derivative status. He is not a “child” anymore under the old definition of CSPA.
CSPA changed the definition of “child” back in August 6, 2002. We now have the CSPA age which could lock in a child’s age through a calculation. If the CSPA age is under 21, then the son or daughter is still a “child” under CSPA and could come in with the parent / parents even if the actual age is 22 or 23 or whatever.
CSPA subtracts the time the Petition (example I-130) was pending from the age of the child when the visa number became available and locks the age and that result.
So let’s say the child was 22 years old when visa numbers finally became available, and let’s say the I-130 petition before approval was pending for 2 years, then we subtract 2 from 22 and the kid’s CSPA age becomes 20. Thus even if he / she is 22, he still remains a “child”, a derivative beneficiary, and can come with the parents.
Here’s another example of each information we need and beside it, a specific figure.
- Child’s birthday. e.g. 1/1/84
- Date the I-130 Petition (example USC sister to brother) was filed. e.g. 1/1/85.
- Priority date of the I-130 Petition (you’ll see that at the receipt notice of the I-130) e.g. 1/1/85
- Date the I-130 was Approved e.g. 1/1/87
- So the I-130 was pending for 2 years (1/1/87 minus 1/1/85).
- Date the visa number became available. e.g. 1/1/06 (based on a chart on http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html, you can find out which priority dates are being processed today for certain petitions).
- Age of child when visa number became available. e.g. how old was child on 1/1/05, in our example, since birthday was 1/1/84, when visa numbers became available child was 22
- CSPA Age. 22 (age when visa became available) minus 2 (the time the I-130 was pending) = 20.
Thus the child cane come in as a derivative of the petition for his parents even is his / her real age is 22.
There are still a lot of aspects to CSPA. Retention of priority dates, the need to file within one year of visa numbers being available etc. But learning the CSPA age is one of the most basic things that should at least initially help a lot of people wondering overseas.
Death of Petitioner or Principal Beneficiary: PL 111-83
A new bill was signed by President Obama on October 28, 2009 ending the widow penalty and automatic revocation provisions of some immigration regulations. Prior to this law, let’s say a US Citizen and foreigner (who entered legally) got married in Jan 1, 2000 and the US Citizen died on December 20, 2002, the foreigner could NOT get a green card based on this marriage. There was a two-year marriage requirement that allowed widows to file a self-petition. So if the foreigner did not file within two years of the marriage, and the US Citizen spouse died, she couldn’t file for a green card based on the marriage.
President Obama on October 28 signed this law which ended the widow penalty. With the passage of this law, even if the widow was married for less than two years at the time of the US Citizen spouse’s death, she can file a self-petition and a green card application together. If the widow is outside the US, she can apply for an immigrant visa after the approval of the self-petition. There is no requirement that a petition must have been filed by the US Citizen spouse prior to his / her death.
The new law also got rid of the requirement of an Affidavit of Support. So no need to file Form I-864 (this is the form for Affidavit of Support). The spouse’s children can also be included in the self-petition and can file for green card.
The Self-Petition Form I-360 must be filed by October 28, 2011. After this, the deadline for filing becomes two years from the US Citizen spouse’s death.
Other Family Including Brother / Sister and Parent Petitions
Unlike Marriage to US Citizen cases, other petitions have a waiting period for priority dates to be current or visa numbers to be available. It takes years for some Filipinos who are married sons or daughters of a US Citizen parent – they have to wait about 18 years. Filipino siblings of a US Citizen have to wait 20 plus years.
The thing is, if during that wait, priority dates are not yet current and the petitioner dies, then the petition is revoked. Unless you file what’s called a humanitarian reinstatement where you substitute another US Citizen relative for the deceased petitioner (which has a tough standard), you pretty much won’t get the benefit of the petition despite years and even a decade or so of waiting.
The new law allows for beneficiaries who are here in the US to still reap the benefits of the petition and the wait even after the petitioner dies. The petition is not revoked anymore even if the petitioner dies before priority dates become current. Since the petition is still valid after the death of that petitioner, the beneficiary just has to wait for priority dates to be current, then file for green card. A substitute sponsor would be required.
US Citizen brother petitions sister from the Philippines in 1986. Say for some reason the sister was able to come to the US as a tourist and she overstayed. Let’s say she came here in 2002. Sister remained out of status and did not get petitioned by anyone else. (Take note that for sibling petitions for the Philippines, it takes plus 20 years for priority dates to be current – simple terms, it takes 20 plus years before the beneficiary can file for a green card). US Citizen brother died in 2007. At that point, prior to this law, the petition was revoked. Unless a humanitarian reinstatement substituting either another US Citizen sibling, or a US Citizen parent etc. could be filed and approved, the sister has no shot at a green card anymore based on her brother’s petition.
With the new law, the petition does NOT get revoked. So once the wait is over, let’s say by October 2009 priority dates are current, even with the death of her brother, she can still file and get her green card. Even if she was out of status, the fact that her brother filed a petition for her in 1986 made her eligible with an extra $1000 fee (based on this other law called 245i). But at least she can still get a green card.
This example also applies to a petition by a US Citizen parent to a married Filipino over 21. That person has to wait about 18 years and prior to this new law, if the parent dies, the petition is revoked, even if it’s at the 15th or 16th year of the beneficiary’s wait. This scenario happens occasionally based on my experience. There are a lot of consultations on this matter. With this new law most of those would be resolved. Now, that I-130 is no longer revoked. When priority dates become current, the beneficiary can file for a green card (again with a penalty of $1000 due to this law called “245i”, but at least he / she can file for a green card). The beneficiary only needs to file with a substitute sponsor. No need for a humanitarian reinstatement request. Another requirement is that the beneficiary should be here in the US. So this won’t apply when the petitioner dies and the beneficiary is abroad.
As evidenced by our success stories and reviews, the biggest percentage of our cases come from the family immigration department. We are experienced in obtaining green cards and immigrant visas from different types of petitions, whether it’s for a spouse, parent, child, or sibling. Same goes for whether the case is in the United States or would involve consular processing.
Our firm will assess your cases and see if there are any issues involved. If there’s an age-out issue, or a death from the petitioner, or an illegal entry or overstay that may invoke section 245(i), we will let you know ahead of time and include those in our services.
Our consultations are also free. So if you have any questions, feel free to call our office anytime for free consultations, or fill out the consultation form below.
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