Family-Based Immigration Categories

Family-based immigration is divided into categories based on type of familial relationship between the U.S. citizen (or green card holder) and the foreign national seeking a green card. The categories are either “immediate relative” or one of the four “family preference” classifications.

“Immediate Relatives” include spouses of U.S. citizens, as well as unmarried people under 21 with at least one U.S. citizen parent and parents of U.S. citizens that are at least 21. For a number of reasons, the “immediate relative” classification is the most advantageous for acquiring permanent resident status.

First, there is no limit (also known as a “quota”) on the number of green cards for spouses of U.S. citizens and other immediate relatives. Therefore, there is no waiting period. As soon as a foreign national becomes an “immediate relative,” such as by marrying a U.S. citizen, the alien can apply for a greencard.

Second, and this is very important for many aliens living in America, unlawful presence after a legal entry into the United States (in other words, staying longer than allowed), or working illegally once here, do not prevent an immediate relative from getting a green card. (Entering without inspection, though, such as by sneaking across the border, will preclude an immediate relative from becoming a lawful permanent resident (LPR) unless a family or employment based immigrant petition was filed for them by April 30, 2001. If such a petition was filed in time and other criteria are met, an immediate relative can apply for a green card by paying a $1,000 penalty fee.)

Third, immediate relatives can apply for a work permit when they apply for a green card and usually get it a month or so after filing. Once an immediate relative has a work permit, he or she can work while the green card application is being processed.

Fourth, in some cases an immediate relative can apply for permission to travel outside the United States while the green card application is being processed. (Such permission is called “advance parole.”) The rules regarding advance parole can be tricky, though, and even if an alien gets it and leaves the United States, he or she can be barred from re-entry in certain cases. Thus, it is very important to consult with a lawyer before leaving the United States once you have filed a green card application.

In short, a non-U.S. citizen that marries a U.S. citizen becomes an “immediate relative.” Immediate relatives are not subject to immigration quotas and can apply for a green card right away. And unlike other green card applicants, they can even qualify in many cases if they have stayed in the United States longer than allowed or worked illegally. These factors make obtaining permanent residence through a good faith marriage to a United States citizen so promising.

As stated above, the non-immediate relative family-based immigration categories are called “preference” categories. There are four such classifications. Unfortunately, numerical limits called “quotas” restrict the number of green cards available each year for aliens falling into these categories. Because the quotas have been reached, the wait to get a green card for preference” relatives can be lengthy. In some cases, it approaches twenty years.

The four preference categories and estimated waiting periods are as follows:

Family First Preference. Unmarried people, any age, that have at least one U.S. citizen parent. Depending on the country of origin, the wait for an available green card can be from two to more than ten years.

Family Second Preference. 2A: Spouses of green card holders and unmarried children under 21, and 2B: unmarried sons and daughters (who are over 21) of green card holders. The waiting period in this category is at least four years.

Family Third Preference. Married people, any age, that have at least one U.S. citizen parent. The wait here is between three and ten+ years, depending on the country of origin.

Family Fourth Preference. Sisters and brother of United States citizens that are 21 or older. The wait in this category is ten to almost twenty years.

If you fit into on of the four preference categories, the U.S. citizen or green card holder that you are related to can start the green card process immediately by filing an Alien Relative Petition (Form I-130). You will not be able to complete the green card application (such as by filing an Application to Adjust Status (Form I-485) if you are in the United States or applying for an Immigrant Visa from a U.S. embassy or consulate if you are outside the United States) until a green card or visa is available for you. While you are waiting for this to happen, you cannot apply for a work permit and have no special immigration rights.