“Immediate relatives” of United States citizens, which include the spouses, children under 21, and parents of U.S. citizens, have special benefits. Immediate relatives have no waiting periods for immigrant visas to become available, although processing times vary from a few months to a year or more. Additionally, immediate relatives who entered the United States lawfully may be able to apply to adjust status simultaneously with the filing of the immigrant visa petition. USCIS procedures for filing family-based adjustment of status cases vary depending on where the applicant lives. All family-based immigrants must be admissible under the immigration laws, or be eligible to receive waivers of inadmissibility, to become U.S. legal permanent residents.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed.

K-1, Fiancé(e) of a U.S. Citizen

K-1 visas are temporary visas available for foreign nationals to enter the United States for the sole purpose of marrying their U.S. citizen fiancé(e)s. In order to apply for a fiancée visa, the U.S. citizen must submit a petition and supporting documentation on behalf of the foreign national, demonstrating the bona fide nature of the fiancé(e) relationship, to U.S. Citizenship and Immigration Services (USCIS). If the petition is approved, the foreign national’s file is then forwarded to the Department of State for additional processing and security checks. Once that process is complete, it is then sent to the relevant U.S. consulate, which sends additional instructions to the foreign national regarding the fiancé(e) visa process and schedules the foreign national for a visa interview. Should the foreign national be granted the K-1 visa after his or her interview at the consulate, he or she may then travel to the United States.

Obtaining a K-1 visa allows a foreign national a one-time entry into the United States for the sole purpose of marrying his or her U.S. citizen fiancé(e). Significantly, most individuals entering the U.S. on a K-1 visa are required to apply for and obtain an employment authorization document (EAD) before they are eligible to work in the U.S. lawfully. The couple must marry within 90 days of the foreign national’s entry into the United States. After the lawful marriage, the foreign national may then be eligible to submit an application to adjust status to permanent resident (“green card”) based on his or her marriage to a United States citizen. Minor children of foreign national fiancé(e)s (under 21 years old) may accompany them to the United States on K-2 visas. The beneficiaries of K-1 petitions who are lawfully in the U.S. in valid non-immigrant status are ineligible to change to K-1 or K-2 non-immigrant status. They must depart the U.S. and apply for and obtain a K visa at a U.S. consulate abroad, and then seek admission in K status. It is important to remember that K-1 and K-2 visa holders can only adjust their status in the United States to that of lawful permanent residence based on the marriage to the U.S. citizen who petitioned for the K-1 and K-2 visas. If they fail to adjust their status within the three month period of time and later become eligible for permanent residence through another avenue – either family or employment-based – they are ineligible to adjust their status in the U.S. and instead will have to obtain their visas at the appropriate U.S. consulate abroad.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed. As such, we recommend that immigration counsel be consulted before a visa petition is filed.

K-3, Spouse or Child of a U.S. Citizen

K-3 visas are temporary visas available for foreign nationals who have valid marriages to United States citizens, who have an I-130 Petition for Alien Relative pending on their behalf, and who seek to enter the United States for purposes of awaiting the approval of the I-130 petition. In order to obtain a K-3 visa, the U.S. citizen must submit a petition and supporting documentation on behalf of the foreign national to U.S. Citizenship and Immigration Services, demonstrating the bona fide nature of the spousal relationship and that an I-130 petition was filed by the U.S. citizen spouse on behalf of the foreign national. If the petition is approved, the foreign national’s file is then forwarded to the Department of State for additional processing and security checks. It is then sent to the relevant U.S. consulate, which sends additional instructions to the foreign national regarding the K-3 visa process and schedules the foreign national for a visa interview. Should the foreign national be granted the K-3 visa after his or her interview at the consulate, he or she may then travel to the United States to await the adjudication of the I-130 petition. Should the I-130 petition be approved, the foreign national may then be eligible to submit an application to adjust status to permanent resident (“green card”) based on his or her marriage to a United States citizen. Significantly, most individuals entering the U.S. on a K-3 visa are required to apply for and obtain an employment authorization document (EAD) before they are eligible to work in the U.S. lawfully. Minor children of the foreign national (under 21 years old) may accompany him or her to the United States on a K-4 visa.

Spouses and children of U.S. citizens who are approved as the beneficiaries of K-3/K-4 petitions, but are in the U.S. in another valid nonimmigrant status are not eligible to change their status. As such, an approved K-3 beneficiary must depart the U.S. and apply for and obtain a K-3 (and their child(ren) a K-4 visa) at a U.S. consulate abroad and then seek admission in K-3/K-4 status.

Traditionally, the K-3 visa process allowed married couples to be united more quickly, but today that is not necessarily the case. It is important to consult with legal counsel to determine if the K-3 visa is the best path for you. Important variable to take into consideration include, the current processing times of the two different petitions, the current travel needs of the couple, work responsibilities, and costs of the two different processes.

Parent of a U.S. Citizen

A United States citizen, age 21 or older, may petition for, or “sponsor,” a foreign national parent to become a permanent resident (“green card” holder) of the United States. The immigration of a foreign national parent of a United States citizen is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”). These petitions must be accompanied by documentary evidence of the existence of a parent/child relationship and evidence of the U.S. citizen sponsor’s citizenship. Additionally, if a foreign national father is to be sponsored, the marriage certificate between the mother and father is required. Alternatively, if the parents were not married, the sponsoring U.S. citizen son or daughter must prove that he or she was “legitimated” under the laws of the place in which the father or child resided, or that a bona fide father-child relationship exists.

A U.S. citizen child may petition for a natural mother or father, provided that the sponsoring child was not legally adopted by another parent before age 16. A step-parent may be sponsored if the marriage between the parent and the stepparent took place before the U.S. citizen child’s 18th birthday. An adoptive parent may be sponsored if the adoption took place before the U.S. citizen child’s 16th birthday and the child lived with the adoptive parent in his or her legal custody for at least two years. Processing times for these petitions vary, but usually take several months. While many family petitions involve long waiting lines for visa numbers to become available, there are no such waiting lines for parents of United States citizens, who are considered “immediate relatives.” When a petition is approved, the foreign national parent may then apply for an immigrant visa. This permits the foreign national parent to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa. Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed.

Spouse of a U.S. Citizen

United States citizens may petition for, or “sponsor,” their foreign national spouses to become permanent residents (“green card” holders) of the United States. The immigration of a foreign national spouse of a United States citizen is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”). These petitions must be accompanied by documentary evidence of the existence of a spousal relationship and evidence of the U.S. citizen sponsor’s citizenship. Additionally, USCIS requires extensive evidence that the married couple’s relationship is genuine. A marriage entered into solely for immigration purposes is a crime for both parties, and bars the foreign national forever from having a visa petition approved on his or her behalf. While many family petitions involve long waiting lines for visa numbers to become available, there are no such waiting lines for spouses of United States citizens, who are considered “immediate relatives.” Processing times for these petitions vary, but usually take several months. When a petition is approved, the foreign national may then apply for an immigrant visa. This permits the foreign national to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa. Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States. Importantly, the beneficiary of an immediate relative immigrant visa petition is required to submit a petition to “remove the conditions” on residence to the USCIS if he or she was admitted as a legal permanent resident within the first two years of marriage. This supplemental petition must be filed within 90 days of the second-year anniversary of becoming a legal permanent resident.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed. As such, we recommend that immigration counsel be consulted before a visa petition is filed.

Child of a U.S. Citizen

United States citizens may petition for, or “sponsor,” their foreign national children to become permanent residents (“green card” holders) of the United States. The immigration of a foreign national child of a United States citizen is initiated by the filing of an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Services (“USCIS”). These petitions must be accompanied by documentary evidence of the existence of a parent/child relationship and evidence of the U.S. citizen sponsor’s citizenship. Additionally, if a child is born out of wedlock and the father is United States citizen sponsor, USCIS normally requires that the father prove legitimation of the child or the existence of a bona fide father-child relationship. Stepchildren of United States citizens qualify the same as biological children, as long as the marriage between the parents took place before the child’s 18th birthday. An adopted child may qualify as the child of a United States citizen if he or she meets the USCIS definition of an orphan, or if the child has lived with the sponsoring parent for a minimum two-year period in the parent’s legal custody.

In many family-based immigration categories (“preference categories”), there are long and growing waiting lines, sometimes several years long, before the individual sponsored may become a permanent resident (“green card” holder). The filing date of the I-130 petition establishes the “priority date,” or place in line, for an immigrant visa. When a petition is approved, and the “priority date” becomes current (the applicable waiting time has passed), the foreign national may then apply for an immigrant visa. This permits the foreign national to become a permanent resident of the United States (“green card” holder) after admission to the United States with the immigrant visa. Or, if eligible, he or she may concurrently apply to adjust status to permanent resident (“green card”) while present in the United States.

The pivotal issues in determining how long the child must wait to become a permanent resident are the age and marital status of the child. Under U.S. immigration law, children of United States citizens may either be considered “immediate relatives” or may fall within one of the Family-Based Preference categories, depending on the individual’s age and marital status. Minor children (under 21) of United States citizens are considered to be “immediate relatives,” and thus, are not subjected to waiting lines for visa numbers to become available. However, unmarried children over the age of 21 (Family-Based First Preference) and children who are married (Family-Based Third Preference) are subject to these waiting lines. For children over 21 and for married children of United States citizens, the I-130 petition must be approved before the child may apply for an immigrant visa or adjustment of status to permanent resident (“green card”). Under the Child Status Protection Act (“CSPA”), a child’s age is “locked in” at the time of filing the I-130 petition with USCIS, for any petition pending on or filed after August 6, 2002.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed. As such, we recommend that immigration counsel be consulted before a visa petition is filed.

Sibling of a U.S. Citizen

The brothers and sisters (siblings) of United States citizens age 21 and over are eligible for immigrant visas, however, the wait period for visa availability can run upwards of ten years. For persons born in India and the Philippines, the wait is much longer. Alternate immigration strategies, such as employment-based immigration, should be explored for the siblings of U.S. citizens, but, in some cases, this means of immigration to the United States is the most viable route.

Sibling relationships come in many different forms and the U.S. Citizenship and Immigration Services (USCIS) recognizes, with limitations, different types of sibling relationships. Half-brothers and half-sisters, sharing one common parent, qualify but, as always, this relationship must be proven by specific documentary evidence. – also may qualify if the marriage creating the stepchild relationship of each sibling to his or her stepparent took place before the stepchild’s 18th birthday. Additionally, if the sibling relationship is created through a common father, and one or both siblings were born out of wedlock, the sibling(s) must have been legitimated or an ongoing bona fide father-child relationship must be proven. You may consult with a legal professional to obtain more information concerning whether your particular relationship qualifies under the immigration laws.

Most family-based visa petitions are initiated when the sponsoring relative files an immigrant visa petition, also known as a Form I-130, with the appropriate Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Service Center or U.S. Consulate abroad. The date of receipt of this petition by USCIS establishes the “priority date,” or place in line for an immigrant visa. Processing times for these petitions vary from several months or much longer depending on visa availability. When a petition is approved, and the “priority date” becomes current (i.e. after any applicable waiting line has passed), the sponsored individual may apply for an immigrant visa or, where eligible, apply for adjustment of status to obtain lawful permanent residence in the United States. An immigrant visa permits the individual to become a legal permanent resident (“green card” holder) after admission to the United States with the immigrant visa. It is important to note that filing an immigrant visa petition for a relative can make it more difficult for the sponsored individual to obtain a tourist, student, or certain other types of temporary visas or it may bring an individual here in the United States without authorization to the attention of the immigration authorities. Additionally, an individual must otherwise be eligible to obtain lawful permanent resident status in the United States or be eligible for a waiver of inadmissibility. An individual’s admissibility should also be thoroughly assessed before a visa petition is filed. As such, we recommend that immigration counsel be consulted before a visa petition is filed.

Adoption

The immigration process for adopted children and orphans is as rewarding as it is complicated. As a point of departure, there are now three different immigration processes for parents seeking immigration status for their adopted or prospective adopted children. One process is specific to children already in the legal custody of their adoptive parents for over two years, the second process is required for orphan children residing in Hague Convention countries, and the third is for orphan children residing in non-Hague Convention countries. The immigration process for adopted children or prospective adopted children is different than the actual adoption process, which is state or country specific. An appropriate social service agency or an adoption service provider should be consulted concerning state specific and country specific adoption requirements and procedures.

First, you must determine if you will be seeking immigration processing for an “adopted child” or for an “orphan.” Next, identify whether the country of origin is party to the Hague Convention. And, finally, prepare and file the appropriate paperwork with the assistance of an experienced practitioner.

Step One: “Orphan” or “Adopted Child”

The Immigration and Nationality Act (INA) criteria for obtaining immigration status for adopted children distinguish between an “adopted child” and an “orphan.” See INA §§101(b)(1)(E), 101(b)(1)(F); 8 C.F.R. §§204.2, 204.3. An adopted child may qualify as an immediate relative if she or he meets the definition of an orphan as defined in the INA (“orphan”), or if the child has lived with the sponsoring parent for a minimum two-year period in the parent’s legal custody (“adopted child”).

An “adopted child” is defined under the INA as:

• a child adopted while under the age of sixteen years; and who

• has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years (the two year requirement is waived for children who have been “battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household”);

An “orphan” is defined under then INA as:

• a child under the age of sixteen at the time petition is filed;

• who is an orphan due to the “death or disappearance of, abandonment or desertion by, or separation or loss from, both parents,” or “for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption”;

• “who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings;”

• “or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence;” and for whom

• the USCIS is satisfied that proper care will be furnished if the child is admitted to the United States (pursuant to home study conducted by agencies designated by USCIS).

Special provisions exist as well for siblings of adopted children (must be under age 18 in lieu of age 16).

Step Two: For “Orphan” Children Determine if the Country of Origin of the Child is Party to the Hague Convention

The Hague Adoption Convention entered into force in the United States on April 1, 2008, bringing with it a specific process that must be followed for adoptive children immigrating to the United States. Children who reside on countries subject to the Hague Convention, must follow the new procedures set forth in the Hague Convention. Non-Hague Convention countries continue to follow the pre-existing orphan procedures.

Among other requirements, the Hague Convention mandates background and criminal checks on prospective adoptive parents, in addition to a home study.

Step Three: File Immigrant Petition for Adopted Child or Advanced Processing for Orphan

Throughout the application process the U.S. Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) have procedures set in place to safeguard the welfare of the children, to minimize fraud, to protect the rights of birth parents, and prevent child abuse and trafficking. As a result, at times, adoptions from certain countries are either heavily scrutinized or prohibited. Check the DOS and USCIS websites for important country specific updates.

Immigrant Petitions for Adopted Children

Follow regular procedures for immediate relative petitions, including filing I-130 Immediate Relative Petition to classify the adoptive relationship and either concurrently or separately, depending on the status of the parents, an application for adjustment of status or an immigrant visa. The criteria listed above for adopted children must be proven by extensive evidence. The forms are submitted to USCIS after the legal custody requirement has been met and the child has been formally adopted. The two year legal custody requirement, however, does not need to take place post-adoption. Depending on whether the child is in the United States or abroad, an application for adjustment of status or an immigrant visa is filed with USCIS or the U.S. Consulate abroad, respectively.

Orphan Processing

The filing process is more complicated for orphan processing and most often is conducted through an authorized adoption service provider. For Hague Convention Countries, two new forms must be filed with USCIS, the I-800A (Application for Determination of Suitability to Adopt a Child from a Convention Country) and I-800 (Petition to Classify Convention Adoptee as an Immediate Relative). These forms must be submitted and approved by USCIS before the adoption can take place.

Non-Hague Convention Countries will use forms I-600A and I-600. Forms I-600A (for non-Hague countries) and I-800A (for Hague Convention countries) are the first step in the process and can be completed before a specific adoptive child has been identified. These forms, however, are only one part of the immigration processing and do not serve to classify an orphan as an immediate relative – that is the purpose of the I-600 or I-800. Approved I-600A and I-800A petitions only remain valid for fifteen months (this was recently increased from six months) – the exact period of validity is indicated on the USCIS approval notice. After the I-600A is approved, an I-600 may be filed either with the U.S. Consulate abroad or with USCIS in the United States that approved the I600A petition. As of today, form I-800 may only be filed in the United States with the National Benefits Center. After approval of USCIS form I-600 or I-800, an immigrant visa is applied for at the appropriate U.S. Consulate abroad.