Family Petitions For Spouses, Children, Parents, and Fiancées

The following are different processes in a family case.   Let’s go over them because they will be referenced later on:

1. I-130 family petition.  This is the petition submitted by a U.S. citizen or permanent resident to sponsor a qualifying relative.
2. I-485 adjustment of status application.  If the sponsored relative is in the U.S. and qualified, he or she will file this application to get the “green card.”  Concurrently with the submission of the I-485 application, we often submit the application for a work permit (I-765) and advance parole travel document (I-131). 
3. Consular processing.  If the sponsored relative does not live in the U.S., he/she will complete the immigration process by submitting additional forms, documents, and payments via the “National Visa Center.” Eventually, the relative will have an interview at a U.S. consulate, usually in his/her home country.  If the application is approved, the relative will be issued an immigrant visa to enter the U.S. as an immigrant.  The green card will come in the mail usually within 90 days after entry.

Family Categories

Immediate Relatives.  An immediate relative is the spouse, child (under 21 years old), or parent of a U.S. citizen. There is no quota in this category and an immigrant visa is immediately available.  The I-130 and I-485 applications can be submitted at the same time for a qualifying relative if the relative is in the U.S.  Even if the relative is in the U.S. without valid immigration status, he/she can still be issued a green card without leaving the U.S., as long as the relative entered the U.S. legally.   You should be aware that only U.S. citizens, not permanent residents, are allowed to sponsor their parents. 

First preference category (F1):  Unmarried sons and daughters of U.S. citizens.  In U.S. immigration law lingo, “sons and daughters” refer to children who are 21 years or older.  “Children” refers to those who are under 21 years old. 

Second preference category A (F2A):  Spouses and children of permanent residents (i.e. green card holders / non-U.S. citizens). 

Second preference category B (F2B):  Unmarried sons and daughter of permanent residents.  Please note that if a person starts off as an unmarried son or daughter, but later gets married, he/she will be disqualified from this category.  The qualification will not be reinstated if he/she later gets a divorce. 

Third preference category (F3):  Married sons and daughters of U.S. citizens, regardless of age.  Please note that only U.S. citizens can sponsor their married sons and daughters.  Permanent residents cannot.

Fourth preference category (F4):  Brothers and sisters of adult U.S. citizens.  Only U.S. citizens may sponsor a brother or sister.  A permanent resident cannot. 

There is no category for uncles, aunts, nephews or cousins.  Same sex couples qualify the same as heterosexual couples. Step children, step siblings, and adopted children may qualify if they meet separate requirements.

If the qualifying relationship falls under F1, F2A, F2B, F3, or F4, the U.S. citizen or permanent resident must first submit an I-130 petition in the U.S.  After the I-130 petition is approved, the relative must wait for his/her “priority date” to become current (think of it as a “green card” quota), before submitting the I-485 application or going through consular processing.

The Approximate Current Wait Time For A “Green Card” Quota

Please note that the wait time changes monthly.  You should also note that some countries, such as China, Mexico, India, and the Philippines have a separate queue due to the high number of applicants from those countries.  The green card quota number sometimes does not change for months, or it can shift up or down widely because of changes in the law, which may spike applications.   However, as of March 2020, the approximately wait times for each category are:

Immediate relative: No wait

F1 category:  7.5 years for all, except it is 23 years for people born in Mexico and 11.5 years for people born in the Philippines.

F2A category: No wait for all.

F2B category: 6.5 years for all, except it is 22 years for people born in Mexico and 11.5 years for people born in the Philippines.

F3 category: 12.5 years for all, except it is 22.5 years for people born in Mexico and 21.5 years for people born in the Philippines.

F4 category: 14 years for all, except it is 16 years for people born in India, 22 years for people born in Mexico, and 21 years for people born in the Philippines.

Are You Kidding Me?

These wait times spur the question: “You can’t seriously mean that a U.S. citizen has to wait over 22 years to sponsor a brother or sister from the Philippines.”  Unfortunately, the wait time is real. It is determined by a complicated formula of annual quotas of all “green cards” and how a specific country has used up the quotas over years, as well as used and unused quotas in various categories.  The wait time is published by the Department of State monthly in the Visa Bulletin.  You may view the latest Visa Bulletin and subscribe to it at this site:  https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

A U.S. citizen may petition his or her fiancée for a fiancée visa, so that he/she may enter the U.S. as a fiancée to get married.  Please note that a green card holder cannot submit a fiancée petition; only U.S. citizens can.

The process for a fiancée petition usually goes like this:

1. U.S. citizen submit an I-129F petition with USCIS.   This usually takes about 4 to 6 months. 
2. After the I-129F is approved, the case will move through the National Visa Center or directly with the U.S. consulate having jurisdiction over the fiancée’s residence.  Generally, the I-129F petition is valid only for four months.  As such, the fiancée will need to complete the process and obtain the fiancée visa within four months   
3. After providing additional documents, forms, and fees to either the National Visa Center or the consulate, the fiancée is ready to be scheduled for an interview.
4. The fiancée has the interview at the U.S. consulate.  The visa officer will ask questions to verify that the relationship is real.  Ideally, the fiancée passes the interview and is issued a K-1 visa.
5. The fiancée will use the K-1 visa to enter the U.S.
6. The fiancée is required to marry the U.S. citizen within 90 days.   
7. After the fiancée and the U.S. citizen are married, the now spouse may submit an I-485 application to obtain a green card.

Usually, USCIS looks for evidence in two main categories: 

Documents to show the couple live together:

• Rental agreement or housing documents with both yours and your spouse’s names
• If only one spouse is on the housing document, find mails that go to both spouses, even separately, but going to the same address, such as:
  • Subscription of magazine or newspaper
  • Junk mail
  • Holiday cards
  • Bills
• Utility bills – power, water, waste
• Joint mobile phone accounts

Documents showing you share financial resources together:

• Joint bank account or credit cards statements
• Documents showing joint ownership of any cars or properties
• Joint Amazon account or other online retail accounts
• Receipt or evidence of any gifts purchased for each other (wedding ring, flowers, birthday gifts, etc.)
• Insurance policies (automobile, health, or life) covering each other
• Wills, estate planning documents, or other benefits naming each other as beneficiaries of the policies

Others:

• Social media printout and update evidencing the relationship (Facebook, family website, Instagram, blog, etc.)
• Statements or letters written by family members, friends, religious leaders, or other acquaintances
• Photos of you and your spouse together, taken with or without families and friends – before the marriage, at the wedding, and after the wedding
• Travel itinerary, boarding passes, showing traveling together

A couple is not required to have all of the above items.  USCIS will evaluate each case on a case-by-case basis, taking into consideration of the length of time the couple have been together, the age difference, cultural practices, whether the foreign spouse was in immigration trouble, and other evidence about the relationship. 

If a couple has not been married for more than two years at the time the I-485 is approved or when the immigrant visa is issued, the foreign spouse will be issued a conditional green card valid for two years.  During the 90-day period before the conditional permanent residence expires, the foreign spouse must submit an I-751 petition to remove the condition of his/her residence, and a permanent 10-year green card will be issued. 

USCIS demands substantial amount of evidence for the I-751 petition.  While USCIS may approve less documented I-130 petition because the couple may not have known each other for long, or when the marriage is fairly new, USCIS expects a lot from the couple for the I-751 petition.  USCIS feels that the couple has had two years to document their relationship and will expect a lot from them.   USCIS looks for the same two main categories of evidence:  the couple live together, and they share financial resources together.   

USCIS expects the couple to submit the I-751 petition jointly.  However, it is possible for the conditional permanent resident spouse to submit an I-751 petition by himself or herself, seeking a waiver of the joint filing requirement.   The permissible grounds of the joint filing requirement are:

• The U.S. spouse is deceased.
• The marriage was entered in good faith, but the marriage was terminated through divorce or annulment.
• The conditional permanent resident entered the marriage in good faith but during the marriage, he/she was battered, or was the subject of extreme cruelty by the U.S. citizen or permanent resident spouse
• The conditional permanent resident’s parent entered the marriage in good faith, and during the marriage, he/she was battered, or was subjected to extreme cruelty, by his/her parent’s U.S. citizen or permanent resident parent
• The termination of the conditional permanent resident’s status and removal from the U.S. would result in an extreme hardship

A conditional permanent resident may select more than one ground for the waiver application.  Needless to say, USCIS will expect to see a lot of evidence to support the claim.