Family Based Immigration
A foreign citizen seeking to live permanently in the United States requires an immigrant visa. To be eligible to apply for an immigrant visa, a foreign citizen must be sponsored by an immediate relative who is at least 21 years of age and is either a U.S. citizen or U.S. Lawful Permanent Resident (that is, a green card holder).
There are two types of family-based immigrant visas:
• Immediate Relative—these visas are based on a close family relationship with a U.S. citizen, such as a spouse, child, or parent. The number of immigrants in these categories is not limited each fiscal year.
• Family Preference—these visas are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). The number of immigrants in these categories is limited each fiscal year.
Keep in mind that U.S. citizens can file an immigrant visa petition for their:
• Spouse
• Son or daughter
• Parent
• Brother or sister
U.S. Lawful Permanent Residents can only file an immigrant visa petition for their:
• Spouse
• Unmarried son or daughter
What Is a Spouse?
A spouse is a legally wedded husband or wife.
• Merely living together does not qualify a marriage for immigration.
• Common law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs.
• In cases of polygamy, only the first spouse may qualify as a spouse for immigration.
The First Step Toward an Immigrant Visa: Filing the Petition
The first step is to file a Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for your spouse (husband or wife) to immigrate to the United States. For instructions on how to file a petition, including where you should send the petition, see the USCIS website.
Use this form if you are a U.S. citizen or lawful permanent resident (LPR) and you need to establish your relationship to an eligible relative who wishes to come to or remain in the United States permanently and get a Permanent Resident Card (also called a green card).
Submitting Form I-130 is the first step in helping an eligible relative apply to immigrate to the United States and get green card. The filing or approval of this petition does not give your relative any immigration status or benefit.
USCIS will generally approve your Form I-130 if you can establish a relationship between you and your relative that qualifies them to immigrate to the United States. Generally, once we approved the petition, your relative may apply to become an LPR. This is the second step in the process. Certain relatives must wait until a visa number is available before they can apply. If your relative qualifies as an immediate relative, an immigrant visa always is available.
• If your relative is already in the United States and a visa is available, they may be eligible to get their green card by filing Form I-485, Application to Register Permanent Residence or Adjust Status.
• If your relative is ineligible to get their green card in the United States by filing Form I-485, or if your relative lives outside the United States, they may apply for an immigrant visa with the U.S. Department of State at the U.S. Embassy or Consulate in their country.
In certain circumstances, a U.S. citizen living abroad can file an immigrant visa petition outside of the United States. Review Filing Immigrant Petitions Outside the United States to learn more.
U.S. Sponsor Minimum Age Requirement
There is no minimum age for a U.S. sponsor (petitioner) to file a petition for a spouse. However, you must be at least 18 years of age and have a residence (domicile) in the U.S. before you can sign the Affidavit of Support (Form I-864 or I-864EZ). This form is required for an immigrant visa for a spouse and other relatives of U.S. sponsors.
Is Residence in the U.S. Required for the U.S. Sponsor?
Yes. As a U.S. sponsor/petitioner, you must maintain your principal residence (also called domicile) in the United States, which is where you plan to live for the foreseeable future. Living in the United States is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions. To learn more, review the Affidavit of Support (I-864 or I-864EZ) Instructions.
If You Were an LPR and Are Now a U.S. Citizen: Upgrading a Petition
If you filed a petition for your spouse when you were a lawful permanent resident (LPR), and you are now a U.S. citizen, you must upgrade the petition from family second preference (F2) to immediate relative (IR). You can do this by sending proof of your U.S. citizenship to the National Visa Center (NVC). You should send:
• A copy of the biodata page of your U.S. passport; or
• A copy of your certificate of naturalization
Separate Immigrant Visa Petitions Required for Each Child
If you are a now a U.S. citizen, you must file separate immigrant visa petitions for each of your children. If you upgrade a family second preference (F2) petition for your spouse and you did not file separate petitions for your children when you were a lawful permanent resident (LPR), you must do so now.
A child does not receive derivative status in an immediate relative (IR) petition. This is different from the family second preference (F2) petition where a child is included in their parent’s F2 petition. A child is not included as a derivative in their parent’s IR petition.
Children born abroad after you became a U.S. citizen may qualify for U.S. citizenship. They should apply for U.S. passports. The consular officer will determine whether your child is a U.S. citizen and can have a passport. If the consular officer determines your child is not a U.S. citizen, the child must apply for an immigrant visa if they want to live in the United States.
Next Steps—Fees, Affidavit of Support, and Visa Application
After USCIS approves the petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number for the petition and instruct the applicant to complete Form DS-261, Choice of Address and Agent. If you already have an attorney, the NVC will not instruct you to complete Form DS-261.
The NVC will begin pre-processing the applicant’s case by providing the applicant and petitioner with instructions to submit the appropriate fees. After the appropriate fees are paid, the NVC will request that the applicant submit the necessary immigrant visa documents, including the Affidavit of Support, application forms, civil documents, and more.
Fees
Fees are charged for the following services:
• Filing an immigrant Petition for Alien Relative, Form I-130 (this fee is charged by USCIS).
• Processing an immigrant visa application, Form DS-260
• Medical examination and required vaccinations (costs vary)
• Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant visa application (such as passport, police certificates, birth certificates, etc.); and expenses for travel to the U.S. embassy or consulate for your visa interview. Costs vary from country to country and case to case.
For current fees for Department of State services, see Fees for Visa Services on the Department of State’s website. For current fees for USCIS services, see Check Filing Fees on the USCIS website. Fees must be paid for each intending immigrant, regardless of age, and are not refundable.
Fees should not be paid to the NVC or paid at the U.S. Embassy or Consulate where you have your visa interview unless specifically requested. Applicants will be provided with instructions by the NVC on where and when to pay the appropriate fees. Do not send payments to the NVC’s address in Portsmouth, New Hampshire.
Required Documentation
In general, the following documents are required:
• Passport(s) valid for six months beyond the intended date of entry into the United States, unless longer validity is specifically requested by the U.S. Embassy/Consulate in your country. Please review the instructions for guidance.
• Affidavit of Support (I-864, I-864A, I-864 EZ, or I-864W, as appropriate) from the petitioner/U.S. sponsor.
• Form DS-260, Immigrant Visa and Alien Registration Application.
• Two 2x2 photographs. See the required photo format explained in Photograph Requirements on the U.S. Department of State website.
• Civil Documents for the applicant. See the Documents the Applicant Must Submit on the U.S. Department of State website at https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-5-collect-financial-evidence-and-other-supporting-documents/step-7-collect-civil-documents.html for more specific information about documentation requirements—including information on which documents may need to be translated. The consular officer may ask for more information during your visa interview. Bring your original civil documents (or certified copies) such as birth and marriage certificates, as well as legible photocopies all original civil documents, and any required translations to your immigrant visa interview.
• Completed Medical Examination Forms—These are provided by the panel physician after you have completed your medical examination and vaccinations (see below).
Visa Interview
Once the NVC determines the file is complete with all the required documents, they schedule the applicant’s interview appointment. NVC then sends the file, containing the applicant’s petition and the documents listed above, to the U.S. Embassy or Consulate where the applicant will be interviewed for a visa.
The applicant, petitioner, attorney, and third-party agent, if applicable, will receive appointment emails, or letters (if no email address if available), containing the date and time of the applicant's visa interview along with instructions, including guidance for obtaining a medical examination.
Applicants should bring their valid passports, as well as any other documentation above not already provided to NVC, to their visa interviews. During the interview process, ink-free, digital fingerprint scans will be taken. Generally, applicants will receive their original civil documents and original translations back at the time of interview.
Rights and Protections—Pamphlet
You should read the Rights and Protections pamphlet before your visa interview to learn about your rights in the United States relating to domestic violence, sexual assault, and child abuse and protection available to you. The consular officer will verbally summarize the pamphlet to you during your interview.
Medical Examination and Vaccinations
In preparing for your interview, you will need to schedule and complete your medical examination and any required vaccinations before your visa interview. Before an immigrant visa can be issued, every applicant—regardless of age—must undergo a medical examination, which must be performed by an authorized panel physician. Applicants are provided instructions by NVC regarding medical examinations, including information on authorized panel physicians.
Vaccination Requirements
U.S. immigration law requires immigrant visa applicants to obtain certain vaccinations prior to the issuance of immigrant visas.
What Is Conditional Residence?
If you have been married for less than two years when your foreign citizen spouse enters the United States on an immigrant visa, his or her permanent resident status is considered conditional. The immigrant visa is a conditional resident (CR) visa, not an immediate relative (IR) visa.
You and your spouse must apply together to USCIS to remove the conditional status within the ninety days before the two-year anniversary of your spouse’s entry into the United States on his or her immigrant visa. The two-year anniversary date of entry is the date of expiration on the alien registration card (green card). See Remove Conditions on Permanent Residence Based on Marriage on the USCIS website.
How Long Does It Take?
The length of time varies from case to case and cannot be predicted for individual cases with any accuracy. Some cases are delayed because applicants do not follow instructions carefully. Sometimes the U.S. sponsor, or petitioner, cannot meet Affidavit of Support requirements. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a consular officer.
Ineligibilities for Visas—What If the Applicant Is Ineligible for a Visa?
Certain conditions and activities may make an applicant ineligible for a visa. Examples of these ineligibilities include: drug trafficking; overstaying a previous visa; and submitting fraudulent documents. If you are ineligible for a visa, you will be informed by the consular officer and advised whether there is a waiver of the ineligibility available to you and what the waiver process is.
Misrepresentation of Material Facts or Fraud
Attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in you becoming permanently ineligible to receive a U.S. visa or enter the United States.
When You Have Your Immigrant Visa—What You Should Know
If you are issued an immigrant visa, the consular officer will give you your passport containing the immigrant visa and a sealed packet containing the documents which you provided. It is important that you do not open the sealed packet. Only the U.S. immigration official should open this packet when you enter the United States.
You are required to enter the United States before the expiration date printed on your visa. When traveling, the primary (or principal) applicant must enter the United States before or at the same time as family members holding visas.
If you receive your immigrant visa on or after February 1, 2013, you must pay the USCIS Immigrant Fee to USCIS after you receive your immigrant visa and before you travel to the United States. Only children who enter the United States under the Orphan or Hague adoption programs, Iraqi and Afghan special immigrants, returning residents (SB-1s), and those issued K visas are exempt from this fee.
USCIS will not issue a Permanent Resident Card (Form I-551 or green card) until you have paid the fee.
Entering the United States: Port-of-Entry
A visa allows a foreign citizen to travel to the U.S. port-of-entry and request permission to enter the U.S. Applicants should be aware that a visa does not guarantee entry into the U.S. The DHS, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S.
Travelers should review important information about admissions and entry requirements on the CBP website under Travel. Once you have been admitted to the U.S. as a permanent resident, your Permanent Resident Card, Form I-551 (formerly called Alien Registration Card, also known as a green card) will be mailed to you.
How to Apply for a Social Security Number Card
If you elected on your immigrant visa application form to receive your Social Security Number Card upon admission to the United States as an immigrant, your card will be sent via mail to the U.S. address you designated on your application form and should arrive approximately six weeks following your admission. If you did not elect to receive your Social Security Number Card automatically, you will have to apply to be issued a card following your arrival in the United States. To learn about applying for a Social Security Number Card, visit the Social Security Administration website.
When You Are a Permanent Resident
Coming to the United States to live permanently, you will want to learn more about your status as a Lawful Permanent Resident. See Welcome to the United States: A Guide for New Immigrants to review information on the USCIS website about living in the United States.
Additional Information
Immigrant visa applicants should not make any final travel arrangements, dispose of property, or give up jobs until and unless visas are issued. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a consular officer. An immigrant visa is generally valid for six months from the issuance date.
General Visa Questions
• Before submitting your inquiry, the U.S. Department of State requests that you carefully review their website for answers to your questions. Because of the volume of inquiries, the Department cannot promise an immediate reply to your inquiry.
• If your inquiry concerns a visa case in progress overseas, you should first contact the U.S. Embassy or Consulate handling your case for status information.
In Texas, as in all states, family-based immigration is governed by federal law. U.S. citizens and Lawful Permanent Residents (LPRs) can sponsor certain family members for permanent residency. Immediate Relative visas are available for the spouse, children, and parents of U.S. citizens without a yearly limit. Family Preference visas, which are subject to annual caps, apply to more distant relatives of U.S. citizens and some relatives of LPRs. The sponsoring relative must file Form I-130 with USCIS to begin the process, and the approval of this petition does not confer immigration status but is a necessary first step. The sponsor must be at least 18 and live in the U.S. to sign the Affidavit of Support (Form I-864). If an LPR becomes a U.S. citizen, they must upgrade their petition for their relatives. After USCIS approval, the National Visa Center (NVC) handles case processing, including scheduling an interview. Conditional residence is required for spouses married less than two years, with a joint application to remove conditions before the two-year anniversary. Visa issuance does not guarantee entry into the U.S.; that decision is made by Customs and Border Protection (CBP) officials at the port-of-entry. Permanent Resident Cards are issued after admission. Immigrant visas are typically valid for six months, and new immigrants can apply for a Social Security Number and should familiarize themselves with their rights and responsibilities as Lawful Permanent Residents. For specific guidance, individuals should consult an attorney or the U.S. Department of State's website.
