Family Based Immigration-Immediate Relatives

Family-based immigrant petitions are filed by either U.S. citizens or permanent residents. The term immediate relative applies to limited relatives of U.S. citizens, including spouses, parents, and children. Special rules apply for spouses of U.S. citizens, if marriage is less than two years in duration.

Immediate Relatives of US Citizens: Family Based Immigration

Spouses of US Citizens: Spouses of U.S. Citizens qualify as Immediate Relatives of U.S. Citizens and therefore are in the most preferred category for family based immigration. In order to qualify, the couple must enter into a legally binding marriage according to the family laws in their jurisdiction.

In addition, the marriage must not be a “sham” marriage. A “sham” marriage is a marriage entered for the sole purpose of obtaining an immigration benefit. In order to prove that the couple did not enter into a “sham” marriage, the couple must be (or intending to) live together and join their assets and share in their responsibility for liabilities.
Both couple must also be legally eligible to marry each other. This means that all prior marriages must have ended by death, annulment, or divorce and the couple must not be closely related to each other prior to marriage.
Spouses Married Less Than Two Years
Conditional Permanent Residents – Removal Condition:
Spouses of U.S. Citizens who have been married less than two years at the time their petition is approved will obtain conditional permanent residence, which will expire in two years. They must apply for Removal of Condition in order to become unconditional permanent residents.

Family Members of the Immigrating Spouse:

There is no derivative status for immediate family members of U.S. Citizens. Each family member must also have an immediate family member relationship with the U.S. Citizen to be eligible to apply under the Family Based Immediate Category. However, a child of the spouse of US Citizen also qualify as immediate family members of the U.S. Citizens as a step child as long as the marriage takes place before that child’s 18th birthday.

Children of US Citizens: The second family-sponsored preference is set aside for two groups. Preference Group 2A includes spouses and unmarried minor children of permanent residents (green card holders). The U.S. Permanent Resident may sponsor their spouse and unmarried minor children for green cards under this preference category. The term “unmarried” includes individuals who were never married and divorced and widowed individuals.

Family Members: Spouse and children (under 21 and not married) of the minor child or spouse of U.S. Permanent Residents are eligible to obtain derivative permanent resident status (green card) when the minor child or spouse of the U.S. Permanent Resident obtains their green card. They are allowed to accompany the minor child or spouse and remain in the United States.

Parents of US Citizens: Parents of U.S. Citizens qualify as Immediate Relatives of U.S. Citizens and therefore are in the most preferred category for family based immigration. In order to qualify, the petitioning son or daughter US Citizen must be 21 years old or older.

Family Members: There is no derivative status for immediate family members of U.S. Citizens. Each family member must also have an immediate family member relationship with the U.S. Citizen to be eligible to apply under the Family Based Immediate Category.