Some family members qualify for permanent residence due to their familial relationship either to a United States citizen, or a permanent resident. Their eligibility for permanent residence in the US depends on a few factors. The two most important factors in determining eligibility are whether the family member is an immediate relative, and whether they are in the United States or outside of the United States.
Immediate Relatives enjoy special priority within the Immigration system, and as such do not have to wait in line for a visa number to become available in order to immigrate. Immediate relatives are only three specific categories:
1. Spouse of a United States citizen
2. Unmarried child (of a United States citizen) under the age of 21
3. Parent (if the U.S. citizen is over the age of 21)
Everyone else, who does not fall in the three immediate relative categories, falls within a preference category and has to wait for a visa to become available in order to qualify.
Immediate relatives inside the US
Immediate relatives who entered with certain visas and were inspected by an immigration officer can obtain their permanent residence in the United States by filing a petition, regardless of whether they are currently residing in the United State lawfully, and regardless of whether they have ever worked in the United States without authorization.
Immediate relatives, who entered the United States unlawfully, most commonly by crossing the border with Mexico or Canada, need to obtain a waiver of their unlawful presence first, in order to qualify for permanent residence. The qualification is available under the executive action entered by President Obama, which came into effect in March 2013.
Immediate relatives outside the US
Immediate relatives, who have never been in the United States, qualify to obtain their permanent residence by appearing for an interview at the US Consulate in their home country. Such beneficiaries do not need to wait for their visa to become available; however, even so, the process may usually take anywhere from one year to a year and a half. If the immediate relative is in their home country after an unlawful stay in the United States of over one year, or if they were subject to a physical removal at the expense of the US government, they may be eligible for a waiver.
Relatives, who are not considered “immediate” under the Immigration laws, are then subject to a visa quota and must wait for their preference category to become available. The preference categories are:
• Unmarried Sons and Daughters of U.S. Citizens (over 21 years old)
• Spouses and Children of Permanent Residents
• Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
• Married Sons and Daughters of U.S. Citizens
• Brothers and Sisters of Adult U.S. Citizens
Beneficiaries inside the US
Preference category beneficiaries, who are physically in the United States have very limited opportunities to immigrate through a family petition. However, do not hesitate to consult with us and explore any options available.
Beneficiaries outside the US
Preference category relatives, who have never been in the United States, qualify to obtain their permanent residence by appearing for an interview at the US Consulate in their home country. Such beneficiaries need to wait for their visa to become available; and the time it may take varies greatly based on the preference category, and also based on their country of citizenship. If the relative is in their home country after an unlawful stay in the United States of over one year, or if they were subject to a physical removal at the expense of the US government, they may be eligible for a waiver.