U.S. Citizenship Petition for Permanent Residency – Who Counts As An Immediate Relative?

Every year, a little over 1 million people come into the US via the immigration system. Out of these, there are at least 226,000 visas given out via the visa allocation system for certain family members of US Citizens and residents. Additionally, for certain family members of United States citizens, who are called immediate relatives, there are no limits to the number of visas that can be issued on a yearly basis. However, the family relationship needs to be established prior to the application for a visa, and the timing of the petitions is what could make or break each petition. In this article, we will discuss the following:

1. Who can a US Citizen submit a petition for to receive US visa as an immediate relative or as a family category?

2. Who can a legal permanent resident submit a petition to receive a US visa?

3. Who is considered a child for immigration purposes?

4. I heard that fiancées can be petitioned. Is this true?

5. Can I bring more than one family member at a time?

6. What can I do to know more?

Immigration is complex, and it is an ever-changing area of law that varies by president and administration. Under President Biden’s US Citizenship Act of 2021, if it becomes law, there could be changes to this blog article. We will keep you informed if there are any changes.

Who can a US Citizen submit a petition for to receive US visa as an immediate relative or as a family category?

A US Citizen can attempt to petition the US Government to provide a visa for many of their family members. As a result of their status as citizens, they can petition for more relatives than their non-citizen LPR counterparts. However, not all family members will be included in this list. For instance, US Citizens cannot petition grandparents. As a general rule, US citizens can have any family member with up to one degree of separation.  

First, US Citizens are able to petition immediate relatives. As mentioned previously, there are no visa limits for immediate relatives. This means that a green card is always available to immediate relatives if they are not other inadmissible. Immediate relatives are those relationships that are so close to the petitioner that having them be apart would not be conducive for family reunification. Immediate relatives are unable to be derivative applicants in other applications, so a US Citizen will need to submit one I-130 petition per family member that they are attempting to have immigrate into the US. US Citizens are able to petition via the immediate relative process:

1. Their noncitizen spouses, even if they are same sex;

2. Their children who are unmarried and younger than 21 years of age;

3. If the US Citizen is older than 21 years of age, they can petition their parents. There are some exceptions to this prong. For instance, if a person became a US Citizen via the special immigrant juvenile process, they are unable to petition for their parents due to abandonment.

Secondly, US Citizens can petition other family members via the family categories. These would fall under a longer process, and a green card is not immediately available to them. A US Citizen can petition for the following family members:

1. Their unmarried sons and daughters (21 years of age and older);

2. Their married sons and daughters of U.S. citizens;

3. If the US Citizen is older than 21 years of age, they can petition their siblings

It is important to note that there are different visa limits for married vs. unmarried sons and daughters of US Citizens, which is why they are listed under separate categories. Additionally, US Citizens can only bring up to one family relation of consanguinity with them. Once their parents become citizens, these parents can begin the petition for their siblings and/or their parents.  

One last point that is important to know. Under the current system, each country cannot be allocated more than 7% of the available visas per year. If a country is continuously receiving visas under family categories, they will begin receiving less and less visas. For instance, the fourth visa category (siblings of US Citizens) have applications being processed for October 1, 2007, but, if you are petitioning a sibling from Mexico, the date on their I-130 needs to be at least May 8, 1999 for them to have a visa available.

Who can a legal permanent resident (LPR) submit a petition to receive a US visa?

Meanwhile, an LPR is only able to petition for: their spouse and unmarried children under 21 years of age under preference F2A, and their unmarried sons and daughters 21 years or older under preference 2B.  

Under the current system, each country cannot be allocated more than 7% of the available visas per year. If a country is continuously receiving visas under family categories, they will begin receiving less and less visas. All F2A categories worldwide are current. However, F2B categories for Mexico and the Philippines are much delayed. If your 797 Notice of Action states that your visa category is an F2B and you were born in Mexico or the Philippines, you may still have to wait some time for a visa to become available for you.

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Who is considered a child for immigration purposes?

In general, a child for the citizenship and naturalization provisions is an unmarried person under 21 years of age who was either:

1. Born during the marriage of the petition (i.e. born in wedlock);

2. A stepchild of the petitioner if the stepchild/stepparent relationship was created before the child turned 18;

3. A child legitimated or recognized under the laws of the child’s country of residence as long as that legitimization is done before the child turns 18;

4. A child adopted while under the age of 16 who has been in the custody of the adopting parents for a period of at least 2 years. However, a natural older sibling of a younger adopted child can also be considered a child for immigration purposes if: they were adopted at the same time with their younger sibling; to the same adoptive parents; AND they were under 18 years of age.

Adoption of Children into the United States is a tricky area of law. We will have more articles on that subject shortly.

I heard that fiancées can be petitioned. Is this true?

US Citizens can bring their fiancées into the United States under the K1 visa program. Under this program, once the fiancées get admitted, the couple has 90 days to get legally married in the US as part of the visa conditions. If the fiancées break off the engagement or the wedding does not happen within the 90 day time frame, the fiancée who was petitioned is unlikely to be able to adjust status if they remain inside the country.  

Can I bring more than one family member at a time?

If they are an immediate relative, unfortunately you are unable to bring derivative immigrants in their application. Visa availability is likely the issue why immediate family members cannot bring other derivatives. However, current law does not allow immediate relatives to bring derivatives right now. This could change in the future.

If the family members that are coming in are petitioned under a visa preference, they can bring in family members. They are called derivative beneficiaries. An additional form I-130 does not have to be filled out for any derivatives. Only the form for the “principal” beneficiary needs to be filed. As such, this type of immigration could be much cheaper than bringing other family members using the immediate relative category. However, it is important to note that this is a lot slower process than the immediate relative process.

What can I do to know more?

Generally, to begin the process of petitioning for a family member, Form I-130 needs to be filled out and submitted to USCIS following the right procedures and guidelines. Afterwards, depending on where the family member is located, the appropriate form will need to be filled out with either USCIS or the nearest Department of State consulate where the person is residing.

If you believe you want to explore your options to reunite with your family or to petition for a family member via the family based immigration system, please do not hesitate to reach call O’Flaherty Law at 630-324-6666 to speak with one of our experienced immigration attorneys.

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