All What You Need to Know About Family-Based Immigration Petitions

What is an Immigration Petition for Family Members?

Do you have relatives who wish to come and remain permanently in the United States? Are one of your family members trying to obtain their Green Card? Are you looking for a guide for this process? It is extremely important to understand the steps of obtaining a Green Card and the factors considered when you try to sponsor a family member in adjusting their legal status.

The first step to start the family petition process is to make sure that your relative is eligible. Several Green Card Eligibility categories are available with different requirements. It is important to find the one that best fits your relative’s situation with someone who knows the law well, like our attorneys at Virguez Law https://virguezlaw.com/immigration/

Every situation is different, and your case might fall into one of the five categories listed under green card eligibility. These categories include being an immediate family member of a U.S. Citizen; another family member of a citizen or lawful permanent resident; Fiancé(e) or child of a Fiancé(e) of a citizen; Widow(er) of a citizen; or a self-proclaimed VAWA (Violence Against Women Act) petition. While we have covered VAWA in detail in another guide, here is some information on more common family (immigration) petitions.

Requirements to Petition for a Family Member

Filing for a family member requires two crucial documents. The first is a Form I-130 that the U.S. citizen files, while the relative who wants to adjust their status files a Form I-485. Therefore, you start the process by filing Form I-130 on behalf of your eligible relative. Filing a Form I-130 will allow you to establish a valid family relationship between you and the person trying to obtain the green card. We can help fill that out for you as it is a very detailed process where you must provide photographs, documents, and other evidence, so it is crucial to be as transparent and accurate as possible.

It is important to note that there are some exclusions as to who can and cannot file Form I-130. Make sure to read through and verify the category for which your family member is eligible before moving forward. If you aren’t sure, you can always call us for a consultation to help you determine if you have a case.

Who can file Form I-130?

  • US. citizens over the age of 21 can file I-130 petitions for their spouses, children, parents, and siblings.
  • People who currently have green cards can petition for their spouses or unmarried children.

Who cannot file Form I-130?

  • A U.S. citizen cannot sponsor grandchildren, grandparents, nephews, nieces, uncles, aunts, cousins, or a parent-in-law.
  • An adoptive child or adoptive parent, if the child was adopted after turning 16.
  • A biological parent, if you become a green card holder/obtained citizenship through adoption.
  • A stepparent or stepchild, if the marriage that created the step relationship happened after the child turned 18.
  • A spouse, if you and your spouse were not both physically present at the marriage ceremony.
  • A spouse, if you become a green card holder through a prior marriage to a U.S. citizen or a green cardholder, unless you are now a naturalized citizen or have had a green card for at least five years.
  • A spouse, while he or she was part of any immigration court proceedings.
  • Any relative, if USCIS (United States Citizenship and Immigration Services) determined that they married or tried to marry, purely for immigration purposes.

The Next Steps After a Family Petition

Once Form I-130 is approved, your family member can apply to become a Lawful Permanent Resident (LPR). An LPR is a person who is a non-citizen that is legally allowed to live permanently in the United States and is commonly known as a “green card” holder. Your family member might have to wait to receive a visa number before they can go ahead and apply to become a permanent resident through the I-485 Form.

If your family member is considered an immediate relative, then they automatically qualify for an immigrant visa. But, to review, if your family member is your spouse, child, or parent, they are considered immediate relatives under the U.S. immigration guidelines. Another thing to consider is whether your relative is in the United States.

  • Relatives already in the U.S. with a visa available could be eligible for a Green Card by filing Form I-485, Application to Register Permanent Residences, or Adjust Status.
  • If your relative is ineligible to get their Green Card in the United States by filing Form I-485 or lives outside the U.S., they can apply for an immigrant visa.

Marriage and Conditional Permanent Residence

If you are married or engaged to a U.S. citizen or green cardholder, you can adjust your legal status.

  • If you currently live outside of the United States, you may apply for Consular Processing. You can apply for Consular Processing at a U.S. Department of State consulate abroad for an immigrant visa. This visa will allow you to come to the United States and be admitted as a permanent resident.
  • Another option if you live outside of the U.S. is a petition done by your spouse for a K-1 nonimmigrant visa. If you are admitted with this petition, you have 90 days to get married to your U.S. citizen fiancé(e) and petitioner. After that, they will have to file a Form I-129F petition for Alien Fiancé(e) once the marriage is proceeding. This process is more well-known because of reality T.V., but it is done regularly!
  • If you are currently living in the United States, you can still apply for permanent resident status without returning to your home country. This process is called Adjustment of Status, which is the Form I-485 applied to this situation.


A less than two-year-old marriage can hold certain constraints on your permanent resident status. If your permanent resident status is based on a marriage that falls under the two-year mark from the day you became a permanent resident, then it is conditional. 

Conditional permanent resident status is given one of two ways.

  • First, individuals can obtain conditional permanent resident status if they are admitted to the United States on an immigrant visa or if they adjust their status to permanent resident status.
  • Second, your legal status is conditional until you can prove that the marriage you entered was not in bad faith. In other words, after a specified period of time, you must provide evidence that the marriage was not created to evade the immigration laws of the United States.

If you want to remove your permanent resident status conditions, you can complete Form I-751, Petition to Remove Conditions on Residence. This form is specifically for those who obtained their legal status through their marriage.

 

Helpful tip from our immigration attorneys / lawyers:

It is important that you complete all these legal processes and forms correctly. Having an immigration attorney that specializes in this field will grant you and your family the best assistance throughout the process. While having friends or family members fill out a legal form is cheaper, any mistake can delay the process or cause a dismissal of the case.

Summary

Understanding how to properly file for family petitions will allow you to move through the process and help your family members in obtaining their lawful permanent resident status or green card in the US. Make sure to file the correct forms and understand what is best for your case moving forward.

FAQ's

US Citizenship and Immigration Services (USCIS) requires this form to be filed as the first step to petition for a family member that is eligible to obtain a Lawful Permanent Resident status in the United States.

Photo by Rajiv Perera on Unsplash

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