Family based visas are given to individuals who have a close relationship to a US Citizen or permanent resident. Unless an individual is an immediate relative (spouse, parent or minor (under 21) child of a US citizen), he/she is subject to an annual numerical quota limitation under visa issuance guidelines published identified monthly by the US Department of State. The total number of visas available for non-immediate relative family sponsored immigrants is 480,000 annually. When the quota numbers are over subscribed for any year, the foreign relative must wait until the next fiscal year (October 1) and until the visa waiting list for their visa category becomes current before they can determine whether they have become eligible under that visa category.
Immediate Relative Spouse, minor children under 21, or parent of a US Citizen (not subject to quota listed above). This category has an unlimited annual amount of visas available and can be utilized by a US Citizen who can meet the residency and financial requirements for sponsorship. There are several methods for filing this type of visa and each case should be reviewed on an individual basis. Again, legal advocacy strategy is critical, particularly for any interim trips to the US by the foreign national family member.
The list below is used by the US Department of State for qualifying various family based visa categories.
Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
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:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
In most situations, family sponsored cases begin with the filing of an Immigrant Relative Petition with the respective CIS Regional Service Center. Once that is approved, and the priority date is current for the appropriate category, there are two options for securing Resident Alien status for the family member. These are:§ Adjustment of Status – If the family member is in the US, and petition priority visa date is currently available, and assuming there are no bars to filing adjustment of status for the person, all paperwork is filed at a local CIS District Office. The family member MUST be physically present and residing in the US (no Canadian/Mexican commuters) to be eligible, and he/she will be unable to travel after filing without prior written CIS special approval. Work and travel authorization upon petition, filing, and approval is available as long as the case is pending.
§ Consular Processing – This involves filing all immigrant visa paperwork through the US Consulate of the employee’s citizenship or country of current legal residence. An interview and personal appearance at the Consulate for the entire family is required.
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