Family-based Visa Attorney in Hackensack bringing families together and Paving The Pathway To Your American Dream

Family-based visas (FB) are an immigrant visa category where a U.S. citizen or Lawful Permanent Resident (LPR) petitions for a relative to grant them permission to immigrate to the United States. The visa process varies depending on the relationship of the family member and whether the petitioning relative is a United States citizen or a Lawful Permanent Resident and must be started by the petitioner. Petitioners must be at least 21 years of age and must be either a United States Citizen or a Lawful Permanent Resident to petition another individual.

The family-based visa category is divided into two main groups: immediate relative visas and family preference visas. Immediate relative visas are available to spouses, unmarried children under the age of 21, and parents of U.S. citizens. These visas are not subject to numerical limitations, which means there is no waiting period for these visas once the petition is approved.

Family preference visas are available to more distant family members, including unmarried sons and daughters over the age of 21, married sons and daughters of any age, and brothers and sisters of U.S. citizens. These visas are subject to numerical limitations, which means that there is often a waiting period before the visa can be issued. The wait time can vary depending on the country of origin and the number of available visas for that category.

The process for obtaining a family-based visa involves the U.S. citizen or LPR petitioner submitting a petition to U.S. Citizenship and Immigration Services (USCIS) on behalf of their relative. Once the petition is approved, USCIS adjudicates immediate relative petitions and their respective adjustment of status applications in the United States; or, in family preference category cases, forwards the petition to the National Visa Center (NVC), which will then contact the beneficiary to begin the application process for an immigrant visa. The beneficiary will be required to complete various forms, provide documentation, and attend an interview at a U.S. embassy or consulate abroad. Once the visa is issued, the beneficiary can enter the United States and become a Lawful Permanent Resident.

What if My Petitioner is A United States Citizen?

Immediate Relative Immigrant Visas (IR) are available for individuals who are immediate family members of the U.S. citizen. These visas are not subject to yearly limits like other family preference visas and can be broken down into the following categories:

  • IR-1: Spouse of a U.S. Citizen
  • IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
  • IR-3: Orphan adopted abroad by a U.S. Citizen
  • IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
  • IR-5: Parent of a U.S. Citizen who is at least 21 years old

Family Preference Immigrant Visas (F) are for family relationships other than a spouse, children under 21, or parents. These visas are limited and have a numerical limit for each fiscal year. After the visa petition is approved, the foreign relative must wait until a visa number is available for that category of a relative, depending on their country of birth and date of application. Depending on the circumstances, this process can take up to 10 years to complete. Family Preference Immigrant Visas can be divided into the following categories:

  • F1: Unmarried sons and daughters of U.S. citizens (and their minor children) – 23,400
  • F3: Married sons and daughters of U.S. citizens, and their spouses and minor children – 23,400
  • F4: Brothers and sisters of U.S. citizens, and their spouses and minor children (for U.S. citizens 21 years of age or older) – 65,000

What if My Petitioner is a Lawful Permanent Resident?

Lawful Permanent Residents (LPRs) may petition for close family relatives for F2 visas. Family preference visas for LPRs are limited to 114,200 each fiscal year. At least 75% of F2 visas are available for spouses and minor children, with the remainder going to unmarried sons and daughters.

  • F2A: Spouses and minor children of Lawful Permanent Residents
  • F2B: Unmarried sons and daughters of Lawful Permanent Residents

If the Lawful Permanent Resident becomes a U.S. citizen after filing a petition, the family visa type will also change from a Family Preference Visa to another type depending on the relationship between the petitioner and the individual. When the sponsor becomes a U.S. citizen, they should submit adequate proof of citizenship to the National Visa Center (NVC) to update the family visa category as soon as possible.

What are Limited Family Preference Visas?

Family-based preference visas (F1, F2, F3, and F4) are limited by number for each fiscal year. Available immigrant visas are issued based on the date the petition was filed, known as the priority date. The USCIS Visa Bulletin shows the latest priority dates for processing family preference visas. The priority date also varies based on where the individual seeking the visa comes from, with separate categories for China, India, Mexico, and the Philippines.

Can a Law Firm Help My Family With Family-based Visas?

Yes; hiring a knowledgeable immigration lawyer will help to ensure that your applications are accurately completed and correctly filed, saving you stress and valuable time. If you have any questions about family-based immigrant visas for relatives of U.S. citizens or Lawful Permanent Residents, or if you are interested in beginning the application process for your family, please contact the Law Office of Nita Kundanmal by calling (201) 883-9800. We handle all aspects of family-based visas and immigration in New Jersey, New York, and throughout the United States.

Marriage Types USCIS Will Not Recognize

USCIS does not recognize certain types of marriages, even if considered valid in the place where the wedding ceremony or legal union between the couple took place. Some types of marriages that USCIS may consider invalid are:

  • Civil unions, domestic partnerships, or other such relationships not recognized as marriages where the marriage was conducted;
  • Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated; or
  • Polygamous marriages;
  • Certain marriages that violate the strong public policy of the state of residence of the couple;
  • Relationships entered into for purposes of evading immigration laws of the United States.

Individuals with Previous Marriages

If were married prior to one’s current marriage, the individual must be able to prove that all prior marriages ended before the individual’s current marriage. A marriage can end through death, divorce or annulment.

Death of a Previous Spouse

If the individual’s previous marriage ended through the death of a spouse, the individual will have to establish that the death occurred before the current marriage began. Typically, a death certificate is used as proof.

Divorce or Annulment

The individual’s marital status may be terminated by a legal divorce or annulment. A divorce or annulment ends the marital relationship. The individual will have to establish that the divorce or annulment was finalized before marrying one’s current spouse. Typically, a divorce or annulment decree is used as proof to show that the prior marriage ended before the marriage date on the subsequent marriage certificate.

The validity of a divorce outside the U.S. depends on the interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried. If the divorce is not final under the foreign law, the current marriage is not valid for immigration purposes.

Same-Sex Marriages

In 2013, the United States Supreme Court stated that a marriage between two persons of the same sex are legal and valid. Since then, USCIS determines the validity of a same-sex marriage by the place-of-celebration rule, just as they do for an opposite-sex marriage. Under the law, same-sex marriages are treated identically.

If the state of residence has a public policy refusing to recognize same-sex marriage, this will not result in a same-sex marriage being considered invalid for immigration purposes if it is valid in the place of celebration. In other words, it is acceptable for the couple to travel to a country and wed where same-sex marriages are legal.

Proxy Marriages

In proxy marriages, one partner is not physically present during the marriage. Typically, another person takes their place during the ceremony. Usually, the officiant is in the place where the ceremony is held.

USCIS will only recognize proxy marriages if the marriage is consummated. In other words, the couple must have had sexual relations after the marriage took place. This is an important distinction because consummation prior to the marriage does not meet the criteria.

Common Law Marriages

USCIS generally recognizes common law marriages if the marriage was valid and recognized by the state in which the marriage was established.

For common law marriages to be valid for immigration purposes:

  • The couple must live in that jurisdiction that recognizes common law marriages and considers the couple to be married; and
  • The couple must meet the qualifications for common law marriage for that jurisdiction.

This can be complicated. It is recommended to consult an immigration attorney to analyze the validity of a common law marriage for the purposes of immigration.

Valid Marriage for a Lawful Permanent Residency or Green Card

When applying for lawful permanent residency or a green card based on marriage to a U.S. citizen or permanent resident, the couple needs to submit proof that the marriage is “bona fide.” USCIS looks for evidence that proves a real relationship with the intention to build live together.

Marriage to United States Citizen and Naturalization

A lawful permanent resident married to a U.S. citizen may apply to naturalize and obtain U.S. citizenship after three years of marriage. The applicant must show that s/he is married and “living in marital union” with the U.S. citizen spouse for at least three years immediately preceding the date of filing the naturalization application (Form N-400). To prove marital union with one’s U.S citizen spouse, the applicant and the citizen must actually reside together and must continue to live in marital union until the applicant is sworn in as a U.S citizen.