Family Based Immigrant Status
FAMILY BASED IMMIGRANT STATUS
The immediate relatives of U.S. citizens do not come under the quota system, so immigrant visas are always available. “Immediate relatives” are defined as spouses of U.S. citizens, parents of U.S. citizens over the age of 21, and unmarried children under the age of 21 of U.S. citizens. Note that the spouse of a U.S. citizen will only be granted “conditional” permanent resident status for an initial two years if the couple has been married less than two years at the time of adjudication. The CIS will want to verify at the end of this period that the couple still resides together and that no fraud was involved. A waiver could be sought if the couple divorced during this period. If not an immediate relative, an applicant must show a relationship under one of the family‑based categories listed below:
- 1st Preference: Unmarried sons and daughters (age 21 or older) of U.S. citizens.
- 2nd Preference: Spouses and children (under 21) of permanent residents, or unmarried sons and daughters (over age 21) of permanent residents.
- 3rd Preference: Married sons and daughters of U.S. citizens (over age 21).
- 4th Preference: Brothers and sisters of U.S. citizens (over age 21).
Family Based Immigrant Status: First Preference
The First Preference category is reserved for the adult children of U.S. citizens, i.e., those children who are now over the age of 21 and therefore traditionally fell out of the “immediate relative” definition. The adult child must be unmarried. As with all the family‑based categories, there is typically a backlog since there are more applicants than visas available under the annual allocations. Currently applicants from most countries have waited nearly five years for a visa number to become available in this category. Applicants from Mexico and the Philippines have faced an even longer backlog. Unless Congress increases the annual limit of 226,000 immigrant visas for family‑based categories, it seems likely these backlogs will continue to increase. The Child Status Protection Act (CSPA) allows some children to still be considered under the Second Preference category even if they turned age twenty‑one before their cases were completed.
Family Based Immigrant Status: Second Preference
The Second Preference category is split into two subcategories: 2A is reserved for the spouses and unmarried children (under the age of 21) of permanent residents, and 2B is reserved for unmarried children age 21 or over. There is always a backlog. The waiting period for most 2A applicants has recently been about three years, and over nine years for 2B applicants. The backlogs are even longer for applicants from Mexico and the Philippines. Note that this category is reserved for petitioners who have lawful permanent resident (“green card”) status. After a certain period of time (usually three to five years) a permanent resident has the option to seek naturalization, i.e., become a U.S. citizen. In some cases it may be in the interest of the permanent resident to seek citizenship in order to petition for certain relatives and avoid the long delays in the Second Preference category.
Family Based Immigrant Status: Third Preference
The Third Preference category is reserved for the married sons and daughters of U.S. citizens, regardless of age. The backlog for most Third Preference applicants is now approximately seven and a half years; however, applicants from Mexico and the Philippines have been waiting much longer.
Family Based Immigrant Status: Fourth Preference
The Fourth Preference category is reserved for brothers and sisters of U.S. citizens. Note that a U.S. citizen must be at least age 21 to petition for siblings. This category has the most significant backlogs. Currently applicants from most countries have waited twelve years; however, for the Philippines the wait has been twice that amount. Once permanent residents obtain U.S. citizenship, they sometimes petition for other family members. Since so many people have obtained their citizenship during the intervening years, it is expected that the backlogs in this category will continue to grow and reach thirty years or longer.