Historically, family reunification has been the basis of the principal policy of U.S. immigration law. Family-based immigration, a tightly regulated system, allows for close relatives of U.S. Citizens and Legal Permanent Residents (LPR) to rejoin their families here in America.
Family-based immigrants are admitted to the U.S. either as immediate relatives of U.S. citizens or through the family preference system.
Immediate Relatives are:
– Spouses of U.S. citizens
– Spouses of deceased U.S. citizens (under certain conditions)
– Unmarried children (under 21 years of age) of U.S. citizens
– Parents of U.S. citizens (petitioner must be at least 21 years old)
Persons who qualify as immediate relatives of U.S. citizens are so highly preferred as candidates for immigration that, unlike most other candidates, no numerical limitation is placed on the number of immediate relatives of citizens who may become permanent residents in any one year.
A person who marries a citizen can qualify for immigration in this category. The marriage must not be a ‘sham,’ – that is, one entered into in order to obtain an immigration benefit. The marriage must be legally entered into – that is, parties were free to marry, all prior divorces were legal, and the marriage formalities themselves are recognized as legal in the jurisdiction where the marriage occurred. The marriage must still legally exist – the parties cannot be divorced or legally separated. However, if the parties are separated, but have not yet entered into a legal separation agreement, it is still a valid relationship for immigration purposes.
The spouse of a citizen whose marriage was created within two years prior to being granted permanent residence is granted residence on a conditional basis. He or she is a full permanent resident in all respects – eligibility for employment, ability to travel freely in and out of the United States, accumulation of time toward compliance with residence and physical presence requirements for naturalization as a U.S. citizen. However, that residence is subject to termination within two years after it is granted, if the marriage has been terminated by divorce or annulment during that period, or the marriage turns out to be sham.
Spouses of deceased citizens qualify as immediate relatives for whom immigration may be sought under some circumstances. In order to qualify, the alien must have been the spouse of the deceased citizen for at least two years and must not have been legally separated or divorced at the time of the citizen’s death. The alien spouse must file a relative immigrant visa petition within two years of the date of death and must not be remarried at that time. Alien spouses seeking residence on this basis must use a different form (Form 1-360) than other family-sponsored immigrants, which they can file themselves. The unmarried minor children of the alien spouse may be included in the petition as well, under a provision of the technical corrections bill passed by Congress in October 1994.
Family Preference System
The new Immigration Act of 1990 significantly changed certain aspects of family sponsored immigration in the United States. The present four family preference categories are as follows:
1. First Preference : Unmarried sons and daughters (any age) of U.S.citizens
2. Second Preference : Spouses, unmarried sons & daughters of LPRs
3. Third Preference : Married sons & daughters of U.S. citizens
4. Fourth Preference : Brothers & sisters of U.S. citizens
Unused visas (if any) from higher preference categories may be allocated to lower categories.
The new Act also allows 75% of these visas to be distributed without regard to individual country quotas.