FAMILY IMMIGRATION

Under the United States Immigration and Nationality Act (INA), family relationships involving a citizen or lawful permanent resident of the United States and his or her spouse, children, parents, sons and daughters and siblings provide a basis for immigrating to the United States.

The INA creates two broad categories for family members, immediate relatives and family-based preference categories. Immigrant visas ("green cards") are immediately available to immediate relatives of United States citizens. Immigrant visa ("green cards") are limited in number to certain other relatives of citizens or lawful permanent residents of the United States.

(Spouses, Children and Parents of United States Citizens)

Spouses: A United States citizen may petition for his or her spouse as an immediate relative if there is a valid marriage between husband and wife.

Parents: A United States citizen may petition for a parent as an immediate relative, if the petitioning citizen is over the age of 21.

Children: A U.S. citizen may petition for his or her children but to qualify as an immediate relative, the child must be under the age of 21 and unmarried.

Spouses and children of "immediate relatives" - unlike preference aliens - do not obtain derivative status. In other words, if a person immigrates as an immediate relative parent of a U.S. citizen, that person's spouse and/or minor children would not also automatically qualify for immigration visas as would spouses and/or minor children of a preference alien. However, the spouse and/or minor children may qualify under a different category.

1. First Preference Category:

Unmarried sons and daughters of United States citizens may immigrate to the United States. The son or daughter must be unmarried at the time petition is filed and at the time of entry into the United States. Where an "immediate relative" petition has been approved for a "child" and the child reaches the age of 21, the petition is automatically converted to First Preference. Where there is an approved First Preference petition and the son or daughter marries, the petition is automatically converted to Third Preference.

There are approximately 23,400 visas allocated to the first preference category each fiscal year.

2. Second Preference Category:

Spouses and children, and unmarried sons and daughters of permanent residents may immigrate to the United States. This preference category is divided into two sub-groups:

• 2A - Spouses and children under the age of 21

• 2B - Unmarried Sons and daughters over the age of 21

Married children of permanent residents do not qualify for any immigration benefits.

For all countries, there are long delays in the Family 2A category and even longer delays in the Family 2B category.

There are approximately 114,200 visas allocated to the second preference category each fiscal year, with 77% allocated to the 2A subcategory and 23% allocated to the 2B category.

3. Third Preference Category:

Married sons and daughters of United States citizens may immigrate to the United States. There are approximately 23,400 visas allocated to the third preference category each fiscal year.

4. Fourth Preference Category:

Brothers and sisters of adult United States citizens may immigrate to the United States. There are approximately 65,000 visas allocated to the fourth preference category each fiscal year.

CONDITIONAL PERMANENT RESIDENCE FOR SPOUSES

In order to discourage what was perceived as widespread marriage fraud, Congress has provided that where a party obtains an immigrant visa based upon marriage as either an immediate relatively or a Family 2A beneficiary and where the marriage is less than two years old, the alien enters the United States as a "conditional permanent resident".

This "conditional status" lasts for two years from the date that the person becomes a resident, not two years from the original marriage date.

The person must petition to remove this status. If the parties are still married they can jointly petition to remove this conditional status any time between the 21st and 24th monthly anniversary of the grant of "conditional status". If a joint petition cannot be filed, the "conditional resident" can file for a waiver where the spouse is deceased the marriage was entered into in good faith, but terminated through divorce or annulment, the marriage was entered into in good faith but the person was the victim of battering or extreme cruelty; or where the termination of the status and deportation would result in extreme hardship. This petition can be filed at any time.

Children who obtain status as either a "child" or "stepchild" based upon a marriage of less than two years are also "conditional residents" and must file to have their conditional status removed. Where the parent is also a "conditional resident", the parent can include the child in his or her application.

CONCLUSION

This information has been provided as a broad overview of the Family Immigration categories. Immigration laws are complex and do change. Therefore, to discuss whether you are eligible to apply for permanent residency under the Family Immigration categories or under other provisions of the United States immigration laws, contact the LAW OFFICES OF JAMES J. REGAN.

Thank you.