If you are a U.S. citizen or a lawful permanent resident (green card holder), then you may be able to bring your family members here to live in the United States. What gets confusing is who you can bring and how long the process will take. The rules are complex and will depend on your own legal status, which family member you petition for, your age, their age, whether they are married or not, and even what country they are from.
If you are a U.S. Citizen
First, let’s look at who a U.S. citizen can petition for. This is the most generous category since immigration laws reward you and your family more if you have attained the status of citizenship. In such a case, you can file for your spouse or your child no matter what age you are. But to file for your parents or your brothers and sisters, you must be at least 21 years of age.
If you have a Green Card
Second, if you are a lawful permanent resident of the U.S. (meaning you have a green card) then your options to bring in family members are more limited. You can still file for your spouse, but if filing for your children, they must be unmarried. Why would this matter, you might ask? Well, the law considers that a married child is not as “needy” of being with you in the U.S. as a child who is married and has their own family and life already established in their home county. If your son or daughter or not married, then it may be more important that they be close to you for extra support. While this is just a generalization, at least it explains a bit of logic to the rule.
And that’s the extent of your capability of filing for your family members. If you are a green card holder, you cannot file for your parent(s) or siblings at all. You would have to wait until you become a naturalized citizen.
Notice that aunts, uncles, cousins, grandparents do not make the list at all – they can never be filed for under a family petition no matter what your legal status is in the U.S.
How long before they can come?
Some family members that you petition for will be able to come to the U.S. right away, while others will have to wait, sometimes a very long time. When you file the I-130 family petition for your relative, the receipt notice that you will get back gives you a “priority date.” I like to use the analogy of going to the deli counter and getting a ticket with a number on it so that you are sure to be served in the order that people arrived at the counter. This priority date on the I-130 receipt notice is your relative’s “ticket” number. It gives them a place in line at the immigration-counter where service will take place in the order that I-130 forms were submitted. This means that if you are thinking of having any of your loved ones join you in the United States, it is critical that you get them a ticket in the line NOW by filing the I-130 petition without delay.
The numbers game
To further complicate matters, the number of visas granted to family members is limited, but only in some situations. The Immigration and Nationality Act (INA) has set an annual minimum family-sponsored preference limit of 226,000. That’s not a whole lot, when you consider this has to cover the entire country. That allocation can get used up pretty fast in 12 months. Plus, even though there is no limit to how many visas are granted to certain family members who are considered immediate priority (as will be explained below), the number of petitions submitted in this immediate relative category still affects all the rest because there is a total number of world-wide cap of visas granted to ALL family petitions of 480,000 per year. This means that 226,000 visas are for those that have to wait until their priority date comes up (recall – these are the ones that have a ticket in the immigration line), and the balance of 254,000 (480,000 minus 226,000) are for the immediate relative category who don’t have to wait in any line because they get their visas right away (subject of course to processing time).
Then there are some countries that are considered to be “oversubscribed” because they have historically sent many people to the U.S. Thus, if your family member is from China (mainland born), India, Mexico or the Philippines, they will have to wait even longer than everyone else from other countries in the world.
Some don’t have to wait at all.
If you are a U.S. citizen filing for your spouse, your parent (as long as you, the U.S citizen, are at least 21), your unmarried child under 21, or an orphan being adopted, they are all considered to be of “immediate priority” and they can come to the U.S. right away as they are not subject to the limitation of the 226,000 that are allocated to come each year. These relatives are the lucky ones, and the logic is the same as in the prior example. If you are a citizen and you want your spouse from another country to be here with you, of course that is given preference. The same goes for if you are a citizen and are at least 21 – your mother and/or father is likely elderly and may need your support to help them as they age. Therefore, it is in the interest of family unity to bring your parent here to live in the U.S. closer to you. The logic continues that if your child is under 21 and not married, you would want to have them close to you in the U.S. as soon as possible.
All the rest have to wait…
Here is where it can get tricky. All other family petitions are subject to the yearly limit number and depending on the type of relative, some have to wait longer than others. Plus the waiting time is always changing each month, depending on how many petitions have been filed in the past. It’s somewhat of a moving target, with some categories progressing faster or slower than others. Each type of relative is put into a “preference category” where the wait time can change from month to month and must be continually monitored. See the July 2015 Visa Bulletin on which my numbers below are based on.
As discussed above, those lucky relatives who don’t have to wait for a priority date, may be eating up some of the numbers available for those that do have to wait. If more than 254,000 visas are filed for family members in the immediate category, this creates a backlog for the rest who are waiting because there is still a total limit for ALL family visas of 480,000 per year. Consequently, huge backlogs develop over time resulting in a very long line-up.
Preference depends on numbers filed and visas allocated to each category.
In the First Preference category are unmarried children aged 21 or older of U.S. Citizens (remember that if the child is under 21, they don’t have to wait at all). As of July 2015, the waiting time for this type of relative is 8 years, meaning that in order to bring this relative to the U.S. today, you would have had to have filed the I-130 petition for them 8 years ago. And if your adult child is from Mexico and you are a U.S. citizen – the wait for them is a long 21 years. By that time they may not want to come any more!
In the Second Preference category “A” are spouses and children under 21 of green card holders. Immigration laws allocate a lot more numbers to this category, again for family unity reasons, thus, the wait for them is only about 2 years, even from the oversubscribed countries.
But there is also a Second Preference category “B” which are unmarried children 21 years or older of green card holders. They have to wait 7 years and Mexico is again the longest, with the wait being 20 years.
In the Third Preference category are married children of U.S. citizens who have to wait 11 years, with the Philippines having the longest wait at 22 years.
And finally, the Fourth Preference category is made up of brothers and sisters of adult U.S. citizens who have to wait 13 years with those from the Philippines waiting 24 years.
What does this hold for the future?
The next time you hear someone saying that all you have to do to get your relative here is for them to “get into the line,” you now understand that the line is very long! That’s why it’s important to file that I-130 family petition right now so that you get your loved one that immigration-counter ticket.
One consolation is that changes to the immigration laws could be made in the future to move the numbers along faster. This could be achieved by increasing the allotment and thus eliminating huge backlogs, recapturing unused visas for the next year, and re-classifying spouses and children under 21 of green card holders to that of the Immediate Priority category so that they do not have to wait at all, thereby using their visa allocations for other categories.
Immigration reform combined with improved USCIS (United States Citizenship and Immigration Services) and Department of State resources to stream line the adjudication process of applications could make a huge difference to the lives of your family members by joining you a lot faster than a 20 year wait.
Nadine Heitz is an immigration attorney in Lake Worth, Florida where she helps her clients obtain legal status in the United States. Book your consultation with her to find out how to solve your immigration issues and achieve your desired goals.