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Family-Based Immigration

Most US immigration is based on either a job offer (or other employment-based immigration) or a family relation with a permanent resident or US citizen.

Only certain family relationships—generally close family—qualify. The US citizen or permanent resident relative must first file a petition. If the petition is approved, the immigrant relative may then file an application either for an immigrant visa if they are outside the US or for a green card (adjustment of status) if they are already in the U.S. (In certain circumstances, both steps can be done at the same time.)

With extensive experience in family-based immigrant petitions, I would be happy to help you with your case. Please email or call (212) 988-5806 to schedule a consultation.

Frequently Asked Questions

Which relatives are eligible for immigration?

A permanent resident may petition a spouse or unmarried daughter or son for permanent residence. A U.S. citizen may petition any of these relatives, and may also petition a parent, sibling, or married daughter or son.

How long is the wait before my relative can get a green card?

Immediate relatives (parents, spouses, and unmarried children under 21) of US citizens are not subject to any caps, so they are eligible for permanent residence “immediately.” Even for these cases, however, the processing time for the application can be many months or even years.

For all other family-based immigration, the wait time depends on the priority date (the date the petition was submitted), and can be many years. Each month, the US Department of State issues a visa bulletin indicating the priority dates being processed for each category of relative and each country. Looking at the visa bulletin can give a rough estimate of the amount of time it is likely to take before an approved petition becomes “current.”

My relative is currently in the United States, will she or he have to return to our home country before becoming a permanent resident?

In most cases, an immigrant who is currently in valid nonimmigrant status (such as a student or work visa) will be able to adjust status—i.e., apply for a green card—without leaving the United States. Immigrants who are out of status are generally required to leave the country to apply for immigrant visas from their home countries.

An immigrant has been out of status for six months or more may be subject to a bar to reentry after leaving. There are waivers available for certain immigrants in this situation if they can prove hardship to a close relative who is a US citizen or permanent resident.

A major exception to this general rule is that immediate relatives (parents, spouses, and unmarried children under 21) of U.S. citizens, if they entered the country legally (i.e., they had a valid visa or were not required to have a visa and were inspected upon entry by an immigration officer), are exempt from the requirement to depart the country, even if they are out of status. They may apply directly for a green card from within the United States.

It is very important to contact an attorney if the intending immigrant is out of status.

May I petition my same-sex spouse?

Yes. On June 26, 2013, Section 3 of the Defense of Marriage Act (DOMA), which had prevented the immigration service (USCIS) from recognizing same-sex marriages for the purposes of immigrant petitions, was overturned by the US Supreme Court. Same-sex marriages are now treated in the same manner as any other marriage for immigration purposes.

This fact sheet is provided for informational purposes only, and is not intended as legal advice. Every case is different, and must be evaluated individually.