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Family Based Immigration

These are the rules for family sponsored immigration.

Immediate relatives a defined term for certain relatives of U.S. citizens (spouses, unmarried children under age 21, and parents if the citizen is older than 21 who may immigrate without numerical limit. Only the direct beneficiary of the petition, not his or her spouse or child, enjoys the benefit.

Certain other relatives of U.S. citizens and lawful permanent residents are classified by visa petition within four ”preferences,” for which visa numbers are allocated each year.

  • First Preference — unmarried son or daughter (21 or older) of U.S. citizen;

  • Second Preference–

    • (a) spouse or child of a lawful permanent resident;

    • (b) unmarried son or daughter (21 or older) of LPR;

  • Third Preference — married son or daughter of a U.S. citizen;

  • Fourth Preference — brother or sister of a U.S. citizen if the citizen is at least 21.

For such preferences a visa number will be available to the beneficiary of the visa petition, i.e., the principal beneficiary, and to his or her accompanying spouse and children, i.e., derivative beneficiaries, in any month that the U.S. Department of State (DOS) Visa Office Bulletin shows that the preference is ”Current” or has an availability date later than the beneficiary’s priority date.

The priority date is the date that the approved petition was filed.

The selection system caps the number of natives of any country who may immigrate annually, other than immediate relatives. Therefore, a separate listing is made for those countries for which that limit is reached. In this connection, an immigrant may sometimes be cross-charged to the more beneficial birthplace of a spouse or parent.

(A) ”Child” means an unmarried person under the age of 21 who is:

  • (1) born in wedlock;

  • (2) a stepchild, whether or not born out of wedlock, providing the child was under 18 when the marriage creating the relationship occurred;

  • (3) a child legitimated under the law of the child’s or father’s residence or domicile if the legitimation took place before the child was 18 and while the child was in the custody of the legitimating parent or parents;

  • (4) a child born out of wedlock, if the status is sought by virtue of the relationship of the child to its natural mother or, if there is or was a bona fide father-child relationship, to its natural father;

  • (5) a child adopted while under age 16 if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years, provided that the natural parents may not thereafter be accorded any status by virtue of the parental relationship; or

  • (6) a child under 16 when an immediate relative petition is filed, who is an orphan because of defined circumstances, and who either is adopted abroad as prescribed or is coming to the U.S. to be adopted after compliance with pre-adoption requirements, provided that the natural parents may not thereafter be accorded any status by virtue of the parental relationship.

(B) To qualify as a son or daughter, terms not defined in the statute, the alien must once have had the relationship of child to the petitioner.

(C) ”Parent,” ”father,” or ”mother“ signifies a relationship that exists because of any of the circumstances described above in the definition of ”child,” with certain exceptions in the case of a father.

(D) ”Brother” or ”sister” is a derivative term meaning that both parties to the relationship are children of at least one common parent..

(E) ”Spouse” is defined in the statute only preclusively, as not including the relationship by reason of a marriage ceremony where both of the parties were not physically present together, unless the marriage is consummated.

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