FAQ: Family Based Immigration

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Q:

What is family based immigration?
A:
 The immigration laws of the United States provide for three principal avenues by which people abroad may apply to immigrate to the United States. These are the employment ("EB") based category, the family based category, and the diversity ("DV") visa program. The family based category is initially broken down into two main categories: "immediate relatives" and "preference based" immigrants.

"Immediate relatives" are not subject to any quota restrictions. Within this category are spouses and children (unmarried and under the age of 21) of U.S. citizens. Also included are the parents of U.S. citizens who are over the age of 21.

"Preference based" immigrants are further divided into several subcategories, and are allocated visas within the annual quota, as follows:

  • First ("F1"): Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
  • Second ("F2"): Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
    • ("F2A"). Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
    • ("F2B"). Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
  • Third ("F3"): Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
  • Fourth ("F4"): Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
Q:
 If I file a preference petition for a relative who is subject to the quota, can they stay in the U.S. until they immigrate?
A:
 No, they cannot. Even the approval of a preference petition does not act as permission to remain in the U.S. This process is entirely independent of a person's nonimmigrant visa status and they must maintain their nonimmigrant visa status or risk deportation.
Q:
 What happens if my spouse just remains here illegally while waiting for the F2A quota to become current?
A:
 If a person remains in the U.S. in "unlawful status" for more than 180 days, and then departs voluntarily, they must remain outside the U.S. for three years before they may immigrate. If they are here more than 12 months in "unlawful status" the penalty is ten years.

Most violations of nonimmigrant status render people ineligible to adjust status in the U.S. The principal exception to this rule involves applications and petitions that were filed before January 14, 1998. In those cases, it may be possible to pay a $1,000 fine and remain in the U.S. to apply for immigrant status.

If a person is not eligible to adjust their status, then they must go abroad to apply for an immigrant visa at a U.S. consular post in their home country. If they have remained in the U.S. in "unlawful status" for more than 180 days, they will be subject to the three year (or worse) bar on return.

It is possible to apply for and receive a waiver of the three year bar. One should not count on it being granted, however.

(Note: It is not possible to acquire any days in "unlawful status" if the person is a student with a "D/S" stay authorization on their form I-94 card. A minimum requirement for starting to count days in "unlawful status" is a definite date by which the person must leave the U.S.)
Q:
 If I receive an approval for a family based preference petition in one category, but later get approved in a "better" category, can I keep my old priority date?
A:
 Yes you can. Once a priority date is established in one family based preference classification, it can be recovered if the same beneficiary gets approved in another family based preference classification.
Q:
 What happens if I am approved in one category and then something happens that automatically moves me into another?
A:
 In such a case, you are automatically converted from one category into another and it is not necessary to file a new petition. For example, if a lawful permanent resident files an F2A petition for his spouse, and then later becomes a U.S. citizen, the F2A approval is automatically converted into an immediate relative petition. This is one reason why an F2A petition should always be filed, even when the petitioner expects to naturalize shortly.