Individual Immigration: Permanent Residence

U.S. citizens and lawful permanent residents may sponsor certain relatives to become U.S. permanent residents based on five categories of immigrant visa categories. Congress has set an annual family-sponsored preference limit of 226,000 immigrant visas per fiscal year based on preference category and country of birth. Due to the high demand for these immigrant visas, the result has become a significant backlog and waiting list for all of the preference categories, except for immediate relatives, that can last many years.

Once the “priority date,” which is the date of filing of the initial Form I-130 immigrant visa petition by the U.S. citizen or lawful permanent resident, is at the very front of the waiting list, the sponsored relative can apply for an immigrant visa at his or her consulate. Upon approval, this immigrant visa is valid for six months, in which time the sponsored relative will need to enter the U.S. as a lawful permanent resident.  In certain cases, the sponsored relative may be eligible to apply for adjustment of status to a permanent resident in the United States, with the filing of a Form I-485 application.

With permanent resident status, the sponsored family member is officially a “green card” holder and is eligible to live and work in the U.S. permanently, barring the commission of any offenses or other actions that would subject them to deportation.

As a result of the Supreme Court’s decision in June 2013 striking down the Defense of Marriage Act (DOMA), the law barring the federal government from recognizing same-sex marriages legalized by the states, U.S. citizens and lawful permanent residents are now eligible to file I-130 petitions for their same sex spouse.   The USCIS has clarified that as long as the marriage was formed in a state where same sex marriage is valid, the marriage will be recognized by the USCIS even  if the petitioner and the sponsored spouse currently reside in a state where same sex marriage is not valid.   As this is very new and emerging area of the law, please check our Alerts section for the most up to date law and policy on same sex spousal and fiance sponsorship.

The family-based preference categories comprise the following:

Immediate Relatives of U.S. Citizens

Includes spouses, parents (where U.S. citizen child is 21 years of age or older) and unmarried children under 21 years of age. Immediate relatives are exempt from the annual preference limit and there is no waiting list.

First Preference (F1)

Includes unmarried sons and daughters (21 years of age or older) of U.S. citizens. This category is subject to the annual quota and the waiting list varies depending on the sponsored family relative’s country of birth. There is currently a much longer waiting period for sponsored family members from Mexico and the Philippines. This preference category permits 23,400 of the total number of family-based immigrant visas, plus any numbers not required for fourth preference.

Second Preference

Is divided into two sub categories: F2A for spouses and unmarried children (under the age of 21) of U.S. lawful permanent residents; and F2B for unmarried sons and daughters (21 years of age and over) of U.S. lawful permanent residents. In recent years, the waiting list for the 2B category has been much longer than for 2A. The Second Preference category is allotted 114,200 immigrant visas, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers. F2A has 77 percent of the overall second preference limitation, of which 75 percent are exempt from the per-country limit. F2B has 23 percent of the overall second preference limitation.

Third Preference

Includes married sons and daughters (age 21 or older) of U.S. citizens. The waiting time for this category is exceedingly long, especially for sponsored relatives born in Mexico or the Philippines. This preference category is entitled to 23,400 immigrant visas per fiscal year, plus any visa numbers not required by the first and second preference.

Fourth Preference

Includes brothers and sisters of U.S. Citizens (U.S. citizen must be age 21 or older). The waiting list is the longest for this category, especially for sponsored relatives born in Mexico or the Philippines. Congress has allotted 65,000 immigrant visas per fiscal year for this category plus any visa numbers not required by the first three preferences.

In addition to the five family-based preference categories, Congress has enacted special provisions under the Violence Against Women Act (VAWA) for spouses or children of U.S. citizens or lawful permanent residents who are physically or emotionally abused to self-sponsor for lawful permanent resident status. Other categories for self-sponsored permanent residence include Special Immigrant Juveniles, Cubans, certain Iraqi translators, informants (S visas), trafficking victims (T visas), and victims of certain crimes (U visas).

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