Overview: Family-Based Immigration.

Historically, family reunification has been the principal policy underpinning 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.
• Unmarried minor children of U.S. citizens.
• Parents of U.S. citizens.

There is no cap on the number of visas available every year for immediate relatives. The Family Preference System allows into the U.S.:

• Adult children (unmarried and married) and brothers and sisters of U.S. citizens.
• Spouses and unmarried children (minor and adult) of LPRs.

There are a limited number of visas available every year under the Family Preference system.

Under current immigration law, visas are allocated as follows:

The Family Preference System

U.S. Sponsor	Relationship	Preference #	Visa Allocated
U.S. Citizen	Unmarried Adult Children	1st	23,400 visas/yr
LPR	Spouses & Minor Children	2nd A	87,900 visas/yr
LPR	Unmarried Adult Children (21 yrs or older)	2nd B	26,300 visas/yr
U.S. Citizen	Married Adult Children	3rd	23,400 visas/yr[2]
U.S. Citizen	Brothers & Sisters (21 yrs or older)	4th	65,000 visas/yr[3]

Immigrating To The U.S. Through A Family Member.

Much of the immigration to the U.S. that occurs is through sponsorship by a family relative. Family-based immigration allows for close relatives of U.S. Citizens and legal permanent residents to rejoin their families here in America. However, the system is based on categories, each of which has strict annual limits in the number of immigrants allowed each year. This creates backlogs, some of them quite lengthy, in some of these family categories.

The "Immediate relative" category does not have any limit or cap on the number of visas and therefore, there is no "waiting period" other than the amount of time the USCIS (or the U.S. consulate abroad) takes to process these visas. These immediate relative categories are:

• Spouses of U.S. citizens;
• Unmarried minor children of U.S. citizens; and
• Parents of U.S. citizens.

The other relative category have limits or caps on the number of visas and therefore, there are waiting periods, which can run from one to ten years or more. These relative categories are:

• Adult children (unmarried) of U.S. citizens (1st preference category)
• Spouses and minor children of legal permanent residents (2nd preference)
• Adult children (married) of U.S. citizens (3rd preference category)
• Brothers and sisters of U.S. citizens ( 4th preference category)

The waiting periods for each of these visas can be determined (approximately) by checking the U.S. Department of State website or the Visa Bulletin which they publish. Our office can also provide such information.

Obtaining Permanent Residence Through Marriage.

Many persons inquire as to the method of obtaining permanent residence through marriage to a US citizen. The process is one of the easiest of all the many methods of obtaining status here. Of course, all marriages must be valid, legitimate and genuine in order to qualify the alien for permanent residence.

A person on a valid tourist visa who has never been out of status in the US can apply for permanent residency if they marry a US citizen. If the person came to the US on a fiancee' visa or other visa, but is now illegally here, usually the process can still be done here. If the person came across the border without a visa, they cannot immigrate inside the U.S. unless they have application filed before April 30, 2001 and certain other conditions apply. Assuming the process can take place in the US, an application must be submitted along with documents to prove the validity of the marriage and an interview takes place at the USCIS office. It generally takes approximately one year to obtain "conditional permanent residence". Conditional permanent residence is granted for two years.

After two years from the granting of conditional permanent residence, an application for final permanent residence must be submitted, documenting that the marriage still exists.

As stated above, because all marriages must be genuine in order to qualify the alien for permanent residence, I would strongly discourage anyone from filing an application based upon marriage where there was any intent to file for a divorce in the future, and I could not represent a person if there was such an intent. In the event a divorce occurs after the filing of the application but before the application for conditional permanent residence is granted, the application will be denied and the alien may be put in deportation proceedings. If, due to completely unforeseen circumstances, a divorce occurs after the filing of the application and after the application is granted, but before the application for final permanent residence is granted, then the alien must apply for a waiver of the two year marriage requirement. A divorce coming after the granting of permanent residence would not effect the alien's status unless the USCIS reviewed the matter and concluded the marriage was fraudulent.

Any permanent resident must wait five years to apply for citizenship, unless they obtained permanent residency through marriage, in which case the waiting period is three years. If a divorce occurs after the granting of permanent residence but before citizenship, the alien must wait five years for citizenship.

I recommend that, before one takes any specific action on any specific case, he or she should retain an immigration lawyer and discuss all the facts of the case. There may be relevant facts that would affect the outcome that should be discussed with a lawyer before any filing. Do not rely solely on this article to file any application or take any specific steps without first consulting an immigration lawyer.