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Family Immigration Part I: How the Visa Numbers work

statuteofliberty.jpgTwo common ways to immigrant to the United States are through an employer, or through a qualifying relative. As a family immigration lawyer, I concentrate in the area of family reunification, and in this first in a series of articles on family immigration, I will discuss how relatives qualify for a family-based immigrant visa. First, understand that family sponsored immigration has an annual cap, which limits the number of persons that can be admitted in any fiscal year. Certain countries with a high volume of applicants such as China, India, Mexico and Phillippines have their own cap limits, and the rest of the countries fall into an overall group.

Regardless of country, eligible relatives fall into one of two categories: immediate relatives and preference category relatives. There are no limits to the number of immediate relative immigrant visas allocated in any year. There are limits in the number of preference category relatives. Since there is always a backlog of preference category visas from year to year those applications are assigned a priority date and remain dormant until that priority date becomes current. Depending upon the preference category, the wait can be 2 to 10 years or longer.

Immediate Relatives (in which all applications are current) include the following:

  • Spouses of United States Citizen (U.S.C.)
  • Minor unmarried children of U.S.C.
  • Parents of U.S.C provided the petitioner U.S.C. is at least 21 years of age.
  • Spouses of deceased U.S.C. who were married for at least 2 years at the time of their USC spouses’ death, (provided the were not separated at the time of the U.S.C.’s death.)

Preference Category Relatives include the following:

  • 1st Preference – Unmarried sons or daughters of U.S.C. who are 21 years of age or older.
  • 2nd Preference –
  • 2A- Spouses or children of Legal Permanent Residents (LPR)
  • 2B- Adult unmarried sons or daughters of LPR’s
  • 3rd Preference – Married sons or daughters of USC’s
  • 4th Preference – Brothers or sisters of citizens of USC, if petitioning USC is at least 21 years old.

Notice there is no category for grandparents of either USC’s or LPR’s. Also LPR’s cannot petition for their own parents or siblings until they become U.S.C.’s.

Anyone in the Immediate Relative category is considered to have a visa available to him/her, and can file the I-130 application with the USCIS to qualify as an immediate relative and then proceed on to processing for LPR status. For those in the preference category, a priority date is established by the U.S.C or LPR Petitioner filing an I-130 application with the USCIS. The application then is put in a queue waiting for the priority date to come current. According to the U.S. Department of State Visa Bulletin for January 2012, for 1st Preference in most areas the priority date is in October 2004, which means there is approximately a 7 year delay in the processing of I-130’s. For those countries with their own “per country limit,” the Philippines, for example, the 1st Preference category wait is approximately 14 years.

The U.S. Department of State publishes a Visa Bulletin each month with the current priority dates in each category. The Visa Bulletin is easily accessible on the internet at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Watch this site for more to come on Family Immigration.