April 7, 2022 | Written By By Virginia Jijon-Caamano, Parlatore Law Group in cooperation with Jackson, Landrith & Kulesz, PC
What is a Family Visa?
Many foreign nationals would like to live and work in the United States (U.S.) as a lawful permanent resident (LPR). One way to do this is by getting a visa by virtue of having close familial relationships with a U.S. citizen or an LPR. A visa that provides a foreign national with legal permanent residence is known informally as a Green Card (as they used to be green) or officially known as a Permanent Resident Card (PRC). Family visas currently make up about 65% of all immigrants to the United States each year. This article will explain the types of family visas and the requirements, procedures, and costs to obtain them.
What Family Members are Eligible for Family Visas?
You can obtain legal permanent residency (a Green Card) in the United States through family relationships with other people. Family visas may be obtained through U.S. citizen immediate relatives, U.S. citizen non-immediate relatives, LPRs (green card holder) relatives, or through a fiancé if you're engaged to be married to a U.S. citizen. U.S. citizens can file an immigration visa petition for their spouse, minor or adult child, parent, sibling, or fiancé. U.S. LPRs can only file an immigration visa petition for their spouse or unmarried minor or adult child.
Getting an Immediate Relative Visa
A foreign national may obtain permanent residency in the United States through an immediate relative. To be eligible for an immediate relative visa, you must be one of the following:
Getting a Family Preference Visa through a non-immediate Relative or Lawful Permanent Resident
A foreign national may also obtain permanent residency in the United States by getting what’s known as a family preference visa through a non-immediate U.S. citizen relative or an LPR. Only certain non-immediate relatives may sponsor a foreign national for a visa. For example, grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a foreign national for a family preference visa.
The U.S. government limits the number of family preference visas given out each year. Visas are issued based on the number available each year and based on preference categories. For example, unmarried adult children of U.S. citizens get first preference when the U.S. government is issuing family visas through non-immediate relatives.
The following family preference visas are available:
Getting a Family Visa through a Fiancé
A foreign national who is engaged to a U.S. citizen can come to the United States in order to get married but must first have their U.S. citizen fiancé file a K-1 fiancé visa petition on their behalf. Foreign nationals must meet the following requirements to be eligible for a fiancé visa:
Once your K-1 fiancé visa is approved, you must marry your fiancé within 90 days of your arrival in the United States. If you do not marry your fiancé during that time, you must leave the United States, or you may be deported. Once you are married, you can then apply for an adjustment of status so you can get a Permanent Resident Card (PRC or Green Card).
What is the Application Process, and What Forms are Required?
To obtain a family visa, a U.S. citizen or LPR relative must first file a Form I-130, Petition for Alien Relative, for the visa applicant with the U.S. Citizenship and Immigration Service (USCIS). This application establishes the family relationship and creates the Priority Date for the foreign national’s subsequent petition but does not grant a visa in and by itself. The Priority Date is the date that the application was filed and accepted by USCIS. For all family preference visa applications (those that are not immediate relatives), the Priority Date will determine when a visa is available in the corresponding category.
If the visa beneficiary lives outside of the United States when the I-130 is approved, USCIS will send the entire application to the National Visa Center (NVC), which then forwards the application to the appropriate U.S. consulate when the visa becomes available. The process of obtaining a visa while living outside of the United States is called consular processing (see more on this below).
If the visa beneficiary lives inside the United States when the I-130 is approved, they can file the I-485 Form in what is called an adjustment of status to become a Legal Permanent Resident (LPR or green card holder). In order to do an adjustment of status the applicant must be already living legally in the U.S. with a different nonimmigrant status such as a student visa, a work visa (for example an H1-B, L-1, or E-2), or a different paroled status.
If the applicant is an immediate relative (see above) and living in the U.S., they can CONCURRENTLY file the I-485 together with their I-130 application to adjust their status. In certain circumstances, as long as the applicant can prove they did not enter the U.S. with the fraudulent intention of getting married using a tourist visa, they can also adjust their status while on a B-1/B-2 tourist visa. Waivers are also available for certain immediate relative applicants who have overstayed their visas or who have worked in the U.S. without authorization, though other inadmissibility issues can still apply.
When adjusting status in the U.S., the foreign national can also simultaneously apply for both a work permit (employment authorization document or an EAD) and a travel permit (Advanced Parole or AP). It is important that the foreign national does not work inside the U.S. before the EAD is approved unless they are currently in the U.S. with a different status that allows them to work, otherwise they may be become ineligible for the adjustment of status. Likewise, the foreign national must not travel outside the U.S. while their adjustment of status is pending until they have an approved AP, or their adjustment of status application will be considered abandoned.
Once the adjustment of status application is filed and accepted by USCIS, the applicant will receive a notice to attend a biometrics appointment, where they provide fingerprints, photos, and their signature. In cases for marriage visas, after a thorough background check, the applicant and their spouse must subsequently attend an interview where they will be questioned on their application and their marriage. If USCIS suspects a fraudulent marriage, the couple may have to go through a more intensive separated “Stokes” interview. After that, the applicant will receive a decision. Applicants can check on a pending Green Card application status by contacting the USCIS’s online cases status website or by submitting a case inquiry if their application is taking longer than the published processing times for their category and form.
What are the Requirements for Obtaining a Family Visa?
The foreign national’s relative must be over 18 or 21, depending on the type of visa, and reside in the United States. The family sponsor must file a petition with the USCIS to verify their relationship with the sponsored person. Sponsors must also meet certain income requirements. The family visa sponsor must be willing to sign an Affidavit of Support at the consular processing or adjustment of status stage stating that the sponsor will be financially responsible for the visa applicant if necessary. The sponsor’s financial responsibility typically lasts until the applicant becomes a U.S. citizen or has been employed for 40 quarters (approximately 10 years).
As part of the application process, USCIS will determine whether the foreign national is likely to need public assistance. If USCIS determines the immigrant may be a financial burden to the United States, it may deny the application. Although the public charge rule is no longer in effect (applicants no longer have to file the additional form), it is recommended that an applicant still show as many positive factors as possible proving they will not need public assistance in the future by documenting their education level, insurance status, or any other financial benefits that show them in a positive light.
What Is Consular Processing?
As noted, if you are applying for a visa while you’re living in the United States, you go through a process referred to as Adjustment of Status. However, if you are applying for your Green Card while still living abroad, you go through a process known as consular processing, which simply means the U.S. Department of State Consulate in your home country handles your application once the NVC forwards it.
Going through consular processing consists of various steps. Before you can start consular processing, you must file your immigration petition with USCIS as outlined above. If USCIS approves the application, it sends it to the NVC to forward to the U.S. Embassy or consulate in the applicant’s home country when a visa is available according to the corresponding family category. The consulate coordinates with the applicant for filling out required forms and scheduling an appointment for their interview. In other words, you must wait in your home country while your visa application is being processed. The NVC notifies the applicant when the applicant’s immigrant visa number is about to become available.
When the visa number is available, the applicant is notified and sent the information so they can fill out the proper form and pay the consular fees. The applicant then must schedule an interview with the consulate. The applicant must also schedule and undergo a medical examination with an authorized doctor before the interview. Applicants must bring their passport and immigration documentation to the interview. A consular officer will then place the applicant under oath and ask questions about the application and their underlying qualifications for the visa.
The officer may approve the application at the interview. If not, applicants typically will get an answer within about a week. Once approved, applicants receive an immigrant visa number, they may have to pay an additional visa fee, and the physical visa will be printed in their passport.
When the passport has been returned to the applicant with the physical visa, the consulate will also give the applicant a Visa Packet with instructions not to open the packet. Upon arrival to the U.S., the applicant must give the Visa Packet to U.S. Customs and Border Protection (CBP) at the port of entry for examination. If the CBP determines the applicant may enter the United States as an LPR, then the person is free to live and work permanently in the United States. The PRC (Green Card) will be mailed to the immigrant’s filed address within a few weeks.
How Much Does It Cost to Get a Family Visa?
Costs to obtain a family visa typically include fees for filing the visa petition and then separate processing costs depending on the type of visa and whether adjustment of status or consular processing will be used. A fee for the Affidavit of Support that the relative sponsor fills out might have to be paid as well. Costs depend on the type of family visa the applicant seeks and sometimes the country from which the applicant is emigrating.
Petition filing fees vary based on the USCIS form used. For example, the current fee for the most common petition, Immigrant Petition for Relative, Form 1-130, is $535, the current fee for a petition for a Fiancé, Form I-129F, is also $535, and the current fee for an application to adjust status in the U.S., Form I-485, is $1225.
In addition to the petition fees, the cost for getting a family visa through consular processing involves separate processing fees. The consular processing fee for an Immediate Relative or Family Preference Immigration Application is $325, and the fee for is a K-1 visa for a fiancé or spouse of a U.S. citizen is $265. Again, these fees are in addition to the petition fees. Certain Afghan and Iraqi immigrants are not currently required to pay a visa application processing fee for consular processing.
The Affidavit of Support, which the sponsor submits, guarantees that they will support the applicant financially until they can obtain work in the United States and have worked for at least 40 quarters (about 10 years) or until they become U.S. citizens, whichever comes first. The Affidavit of Support must be included with either an adjustment of status or consular processing and does not have an additional fee unless it is reviewed domestically during consular processing, in which case, the fee for review will be $120. Some other incidental costs include translation of documents, getting a police certificate in every country you have lived in, and getting the required medical examination.
Is It Difficult to Get a Family Visa?
How hard it is to get a family visa depends on the type of visa you’re applying for. Generally, immediate relative visas are the easiest to obtain and take the shortest amount of time. Currently, I-130s for U.S. citizen immediate relatives are taking 6 months to a year to be approved while I-130s for other relatives are taking about 18 months. You can see how long your type of application will take to be processed by checking the USCIS Processing Time website, as long as you know the form name and the processing center your application was sent to. (Check on the bottom of your I-797 Receipt Notice to find the Processing Center.) Once the I-130 for the immediate relative is approved, the foreign national can proceed to consular processing or adjustment of status immediately while family preference visas must wait for their Priority Date to become current.
The United States limits the number of other family preference visas it gives out each year, and the immigration backlog for these visas is high. Thus, family preference visas can take years, or even decades, depending on the backlog and the preference category. To see how long different categories of family preferences are taking to become current, take a look at the Visa Bulletin published each month by the USCIS. Each category has the Priority Date of the visas they are currently processing. If a category says that it is processing visas with a priority date in 2015, that means it may take approximately 7 years for an I-130 that is filed in 2022 to become “Current.” Note: Any category with a priority date of “C” means that those applications are “Current” and can be adjudicated concurrently, just like the immediate relative category.
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Virginia Jijón-Caamaño is a partner with Parlatore Law Group and practices in the field of immigration law, helping both individual clients, as well as businesses to navigate this constantly evolving area of the law. She assists individual clients in navigating confusing immigration regulations and applications. Her practice entails organizing all types of visa submissions. Virginia works tirelessly to deconstruct complicated immigration options, opportunities, and pitfalls, to compile thoroughly documented application packages. She also handles naturalization applications, and DACA work permit renewals. For more about Virginia, click here.
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