This information is offered as a general guide to the law. It is not meant to provide legal advice in specific cases.
Readers should consult with a competent lawyer to see how the law applies.
Mr. Ortins is an attorney who concentrates on immigration and nationality law and a member of:
The American Immigration Lawyers Association. His office is at 1601 Connecticut Avenue N.W. Suite 300 Washington D.C. 20009
Telephone (202) 234-8906 Facsimile (202) 234-8917.
One of the main ways that persons can become permanent residents is through close family relationships Immigration law Provides certain persons the right to “sponsor” certain relatives for immigration. What relatives can be sponsors and how long it takes for that relative to get an immigrant visa depends on the nature of the relationship.
Both U.S. citizens and permanent residents can sponsor relatives. Citizens can sponsor spouses parents children under 21 unmarried children 21 or older married children and brothers and sisters. The closest relatives of citizens that is parents spouses and unmarried children under 21 are immediate relatives. These relatives are not subject to numerical limitations and therefore do not go on a waiting list for visas. They do however need to go through necessary processing which could take up to six months or more.
The citizen’s unmarried children 21 or older are in the first preference category. These relatives like all the rest of the citizens qualifying relatives (other than immediate relatives) are subject to numerical limitations. There could therefore be a waiting list for first preference visas. Married children of citizens are third preference and brothers and sisters of citizens are fourth preference. Both third and fourth preferences have waiting lists and the fourth preference waiting list is quite long.
Permanent residents have the right to sponsor spouse’s unmarried children under 21 and unmarried children 21 or older. Spouses and unmarried children under 21 are in group A of the second preference category. Unmarried children 21 or older are in group B of second preference. There are waiting lists in each of these categories. The law does not allow permanent residents to sponsor parents or married children.
In terms of procedure the citizen or permanent resident are the “petitioners” The petitioner has the right to file a petition with the INS to have the relative classified in one of the categories outlined above With the petition the petitioner must prove that he or she is related to the person being sponsored (the “beneficiary”). This is done through appropriate documents such as a birth certificate or a marriage certificate. The petitioner must also prove that he or she is qualified to file the petition He or she must show his or her naturalization certificate or I551 card (green card”). Once the petition is approved and the petition s priority date is “current” the beneficiary can then begin processing for an immigrant visa. At that time the beneficiary must prove that he or she is qualified for immigration benefits.
A common occurrence in family cases is a change in circumstances of either the petitioner or the beneficiary. If the petitioner becomes a citizen the petition automatically is changed to reflect the naturalization For example a permanent residents second preference petition for an unmarried 23 year old son becomes a first preference petition. The long waiting list for second preference petitions is avoided and the case goes into the waiting list (if any) for first preference cases. This could result in a substantial reduction of the waiting time to get a visa. Similarly when a petitioner becomes a citizen and she is applying for her spouse the spouse becomes an immediate relative and the waiting list is avoided entirely. The petitioner’s naturalization also is desirable when a parent is to be sponsored. In such a case after the naturalization the petition can be filed for the parent while before naturalization no petition was possible
Problems can arise in certain circumstances For example in cases where the petitioner is a permanent resident and the beneficiary is the petitioners son or daughter that petition is automatically revoked when the child marries This is because the permanent resident has no right to sponsor a married child. Therefore in such cases is it important that the beneficiary realize that his or her marriage will result in the loss of the chance to apply for an immigrant visa. To resolve such a problem the petitioner can become a citizen and file another petition for the married child. It often takes many years to get a visa this way however because even after the petitioner meets the waiting time for naturalization the beneficiary must wait years on the third preference waiting list before a visa is available.
Similarly when the beneficiary turns 21 the category changes. For example immediate relative status is lost when the beneficiary turns 21 because such status is available only to children under 21 years of age. When this beneficiary turns 21 the case falls into first preference and a visa could be issued in that category as long as the beneficiary remains unmarried Marriage would move the case into third preference. When an unmarried child of a permanent resident turns 21 the case moves into group B of second preference and goes On the waiting list there.
For these reasons beneficiaries and petitioners should be aware that the beneficiary’s marriage or reaching the age of 21 can significantly affect the case. Rights can be lost merely through the passage of time. In cases which are current (or close to being current) it is very important for beneficiaries who are approaching 21 to move quickly to resolve their case by informing the INS or U.S. Consulate that the age limit is approaching.
Article extracted from this publication >> December 11, 1992
