Scenario 1: Jack, who was born in Poland and came to the U.S. as a student, has just become a U.S. Citizen. He would like to bring his parents and little brothers, who are both under 21, to the U.S. so that they can live in the U.S. near him.
1.U.S. Citizens can sponsor their spouse, parents, children and brothers or sisters for a U.S. Green Card by filing the Form I-130.
2.The Family Based Immigrant Visa process is initiated by filing the Form I-130 within the U.S., or in some cases, outside the U.S.
3.The Form I-130 is also used by Green Card holders to sponsor their spouse and children.
Scenario 2: Jack’s old classmate Stephanie is also a U.S. Citizen. She is currently living and working in Italy, where she was born and where her parents live. She is expecting to return home to the U.S. in the next 6-12 months and would like to bring her parents back with her.
Scenario 3: Jack’s other friend, Juan, is also in the process of naturalizing to become a U.S. Citizen.
He lives with his wife who is a foreign national. She came to the U.S. as a visitor but overstayed her visa.
Can Jack, Stephanie and Juan help their family members gain permanent residence? What’s the process?
Let us look at Jack’s situation first.
Among the rights and privileges of being a Legal Permanent Resident(LPR) or U.S. Citizen is the ability to sponsor family members so that they can also become legal permanent residents of the U.S. The Form I-130, Immigrant Petition for Alien Relative, is the most often used method by foreign national relatives of U.S. Citizens and Green Card holders to come to the U.S. to live permanently.
The I-130 Process: An Introduction
There are generally 2 steps in the I-130 process. The first step is the Form I-130, which establishes the familial relationship. The second step is for the foreign national relative to apply for an immigrant visa or permanent resident status on the basis of the approved I-130 petition.
In this article, we will focus only on Jack’s situation – Jack filing the Form I-130 at USCIS inside the United States and Jack’s parents and brothers applying for an immigrant visa at a U.S. Consulate abroad.
Step 1: Filing The Form I-130 At USCIS
The first step in filing the Form I-130 is to determine the foreign national’s eligibility to have a Form I-130 filed on their behalf. There are two main categories of relatives that are eligible to be beneficiaries for the Form I-130– Immediate Relative of U.S. Citizens and Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents.
a.Immediate Relatives of U.S. Citizen
Immediate relatives of U.S. Citizens include their spouse, unmarried children under 21 and parents. Unlike most other Green Card applicants, these individuals are not subject to any quotas, making them immediately eligible for an immigrant visa number upon approval of the I-130.
Note: In the case of immediate relatives, the U.S. Citizen must file a separate I-130 for each relative. This means that if the U.S. Citizen has a wife and 2 children abroad, he must file a separate I-130 for each individual. Also, a U.S. Citizen would have to file two separate I-130’s for each parent.
b.Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents
Other relatives of U.S. Citizens who may be sponsored are unmarried sons and daughters over the age of 21 (F1), married sons and daughters over the age of 21 (F3) and siblings (F4).
The relatives of legal permanent residents who may be sponsored include the spouse and unmarried children under 21 (F2A) and unmarried sons and daughters over the age of 21 (F2B).
Note: In the case of the relatives in this second broad category, accompanying family members (spouse and/or unmarried children under 21) may be able to join the main beneficiary in coming to the U.S. without a separate petition. For example, if a U.S. Citizen was filing for his unmarried 24 year old daughter who had a 2 year old son, the child would be able to accompany his mother to the U.S. as a “derivative beneficiary.” This is true for all cases in this second category except the spouse of legal permanent residents.
Unlike the Immediate Relatives of a U.S. Citizen, Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents categories are subject to statutory quotas and only a certain number of people are eligible for an immigrant visa number each fiscal year under these categories. Each category of individuals described here has its own quota which is then subdivided by country. Because so many people apply in these categories, the quotas get over-used or “over-subscribed,” meaning a backlog results. Individuals in these categories can be waiting for one or two years or up to 20 years to get an immigrant visa, depending on the category they fall into.
In Jack’s case, his parents will qualify as Immediate Relatives of a U.S. Citizen, while his two brothers, both being under 21 years of age, will qualify under the F4 category as Other Relatives of a U.S. Citizen.
The main focus of the I-130 petition process is to document the relationship. In most cases, as in the case of parents and children, a birth certificate or secondary evidence of parentage will suffice. The same goes for the siblings of U.S. Citizens, who will each have to provide a birth certificate to show that they share at least one parent. In the case of spouses, additional evidence will need to be submitted to document not only that the marriage is legal (i.e., a marriage certificate) but also evidence that the marriage is bona fide (i.e., evidence that the marriage was not entered into for the sole purpose of gaining immigration benefits).
3.File the I-130 at the Correct Lockbox or other USCIS facility
Generally, the U.S. Citizen or legal permanent resident filing for his/her family member must file the I-130 petition with any required and supporting documents and the filing fee with the USCIS Chicago or Phoenix lockbox, depending on where the U.S. relative resides.
Note: In the case of a U.S. Citizen or legal permanent resident filing for his or her spouse, the Form I-130 must be accompanied by a Form G-325A, Biographic Information for both the U.S. spouse and the foreign national spouse.
My Case Scenario
Louis, a U.S. Citizen, just got married to his fiancée, Frances, who is a French national. She is currently in France and Louis has begun the paperwork for her to obtain legal permanent residence. Frances has a young daughter, Maria, and she wants to bring Maria with her to the U.S. Will Frances have to file an I-130 after she becomes a Green Card holder?
No, Frances will not have to wait until she becomes a Green Card holder to file an I-130. Now that Louis and Frances are married, Maria is Louis’ step-daughter and he can file an I-130 immediate relative petition on her behalf directly as long as the marriage between Louis and Frances took place before Maria’s eighteenth birthday. Under the I-130 rules, step-children in this scenario and natural children are treated the same. This means that Maria will be able to accompany her mother to join her step-father in the U.S. very soon
Step 2: The NVC Process
Once the I-130 petition is approved, USCIS sends the petition to the Department of State’s National Visa Center (NVC), which will process the immigrant visa application and schedule the foreign national relative’s consular interview appointment. For cases filed on behalf of the Immediate Relatives of U.S. Citizens, the NVC will immediately begin to process the immigrant visa applications. For all other I-130 petitions, NVC will only process applications where the priority date is going to become current. To know more about priority dates, please click here.
In some cases, especially those involving an emergency or an age-out issue, the NVC may elect to immediately forward the case to the Consulate to speed up processing. In cases like this, it is important to notify the NVC as soon as possible so that they can take the appropriate steps.
The processing at NVC involves various steps:
1.Contact Information and Choice of Agent
Upon receipt of the application by the NVC, the NVC will contact both the U.S. relative and the foreign national relative and confirm the contact information for each individual. The NVC will allow the immigrant visa applicant, the foreign national relative, to appoint an “agent” and or address to receive correspondence by using the DS-261, the Online Choice of Address and Agent form.
The NVC will then send the Immigrant Visa Application Processing Fee Invoice to the visa applicant, the agent or the attorney, and the Affidavit of Support Fee Invoice to the U.S. relative petitioner. Upon NVC’s receipt of the fees, which should be paid online, fee receipts and a cover page will be generated. The cover page MUST accompany all correspondences with the NVC.
3.Affidavit of Support
Upon receipt of the fees, the NVC will instruct the U.S. relative to establish the ability to financially support the foreign relative, and if applicable, their accompanying family members by filling in Form I-864 and submitting the appropriate supporting documents. If the petitioner is unable to support the relative financially, financial support can also be shown by showing the financial resources of other individuals in the household, through a co-sponsor or, in some instances, the assets of the foreign relative applicant. For more information on the Affidavit of Support, please click here.
4.Immigrant Visa Forms and Required Documents
The foreign national relative and each accompanying family member must fill out Form DS-260, the Immigrant Electronic Visa Application. The DS-260 is filled in and submitted online. Each applicant is also required to submit certain civil documents. These include birth certificates, marriage certificates, divorce certificates, and any other documents depending on the type of relationship the application is based on. Each applicant over the age of 16 must also submit police clearance certificates.
The Civil Documents and the Affidavit of Support must be submitted, in the original, to the NVC. This includes original civil documents.
Note: A select number of U.S. Consulates are currently testing the electronic submission of documents through the NVC. For appointments at these consulates, scanned copies of the civil documents are sent to NVC via email and then original documents are simply brought to the interview. DO NOT SCAN AND EMAIL THE NVC ANY REQUIRED DOCUMENTS UNLESS SPECIFICALLY INSTRUCTED TO DO SO BY THE NVC.
Upon receipt of all the required fees, forms and documents, NVC will proceed to schedule the immigrant visa appointment at the appropriate U.S. Consulate or Embassy for all visa applicants. Once the interview is scheduled, the NVC will notify both the U.S. relative or agent and the foreign national applicant of the visa appointment scheduling and of any additional documents that must be taken to the interview. The NVC will also forward the entire Immigrant Visa Packet, containing all the forms and supporting documents, for each applicant to the U.S. Consulate.
Step 3: The Immigrant Visa Interview
In the majority of cases, as the NVC has already collected all the documents and required forms, there are only a few things each immigrant visa applicant has to do before the interview.
1.The Medical Exam
Each immigrant visa applicant must undergo a medical examination by an authorized physician to determine if he or she has all the required vaccinations and to determine whether or not the applicant has any communicable diseases or other health problems that would make them inadmissible to the U.S. Usually, the physician forwards the medical examination directly to the U.S. Consulate.
For most visa applicants, the visa interview is the most nerve-wracking part of the entire process. In the case of most relative petitions, the interview is primarily to verify the authenticity of the documents submitted and to make sure that the applicant is eligible to become a legal permanent resident.
In cases where the application is based on marriage, the consular officer will also ask questions to ascertain whether or not the marriage is actually bona fide, or real. This is especially true in cases where the marriage is relatively short in duration or where there has been a long separation, physically, between the spouses.
Applicants must bring with them their passport and any other documents requested by the NVC or the Consulate directly. Please note that each U.S. Consulate has different rules and some consulates request that all applicants bring additional documents or application forms. Follow the directions that the U.S. Consulate or NVC gives regarding each particular U.S. Consulate.
Note 1: In most cases, the U.S. relative petitioner will not be allowed at the interview. Exceptions may be made in the case of minor children who are allowed to have an adult accompany them to an interview, the elderly, or for disabled applicants.
Note 2: Applicants should bring with them evidence that the relationship between the U.S. relative and the applicant has been maintained. This is especially true of spouses of U.S. relatives.
It is very important that each visa applicant be thoroughly prepared for the interview. The applicant should review a copy of all the application forms that have been submitted.
3.The Immigrant Visa Packet
Upon approval of the immigrant visa, each applicant will receive their passport with the “immigrant visa” stamped in it. The stamp, called the I-551 stamp, is proof that the applicant has been approved to become a legal permanent resident upon entry to the U.S. The applicant will also receive a sealed package that contains all the original documents submitted to the consulate. DO NOT OPEN THE PACKAGE. This package must only be opened by the U.S. Customs and Border Protection Officer at the U.S. port of entry. If opened, the applicant must contact the U.S. Consulate immediately so they can advise on what to do.
4.Pay the USCIS Immigrant Fee
Once the immigrant visa is approved but BEFORE leaving for the U.S., each applicant must pay the USCIS Immigrant Fee. Payment must be made online through USCIS ELIS. While non-payment of this fee will not affect the application or legal permanent resident status, the actual Green Card will not be produced until and unless this fee is paid.
During the interview, it is important to dress in a presentable fashion that shows that the applicant has respect for the consular officer and the process. Dressing in local or traditional garb is acceptable.DO NOT WEAR jeans, torn/ripped clothing (even if it is fashionable), clothing with objectionable words or pictures, or other inappropriate clothing. The first impression you make on an officer will affect how the officer will conduct the interview.
Step 4: Arriving in the U.S.
1.Enter the U.S.
With passport and sealed package in hand, each applicant must generally enter the U.S. within six months of the visa stamp, although the visa stamp is generally good for one year. Furthermore, children who are aging-out because they are turning 21 must enter the U.S. before they turn 21. The primary visa applicant must enter first or the family members must enter at the same time as the primary visa applicant.
Upon entry, the U.S. Customs and Border Protection (CBP) Officer will open and inspect the sealed package and the I-551 stamp. He or she may ask additional questions regarding where the applicant will be staying and the reason for the application. The CBP officer will then place a rubber stamp in the passport that has the date of entry next to the I-551 stamp and write in the Alien Number (A-Number). This stamp evidences that the applicant has entered the U.S. as a Legal Permanent Resident. Until the Green Card is received in the mail, the I-551 stamp together with the CBP stamp is proof of legal status in the U.S.
2.The Green Card
Customarily, the Green Card arrives within a few weeks of the applicant’s entry into the U.S. The Green Card is sent to the address provided on the DS-230. If the Green Card does not arrive within 3-4 weeks of arrival, it is best to contact USCIS to see if the Green Card has been returned as undeliverable. The U.S. Postal Service will not forward the Green Card if the mail-to address has changed.
Note: The applicant may also receive his or her social security card in the mail if he or she selected that option on the DS230. If the option to automatically have a social security card generated was not selected or if several weeks have passed and the applicant has not received the card, the applicant must contact the local Social Security Office.
If the Green Card is lost/doesn’t arrive and a replacement must be ordered, then the new legal permanent resident may use the passport with the I-551 stamp and entry stamp as proof of status and employment authorization. The I-551 stamp may also be used for travel and re-entry up until the visa expires. If the visa expires and the physical Green Card has still not been issued, the new LPR may make an InfoPass appointment at a local USCIS office to obtain another I-551 stamp so that he or she can travel.
Obtaining Legal Permanent Residency is a privilege, not a right. Upon gaining legal permanent resident status, the foreign national relative should seek to establish their home in the U.S. Further, they should become familiar with how they can lose their legal permanent resident status. To learnmore about how to maintain legal permanent resident status, click here.
4.Removal of Conditions
Spouses of U.S. Citizens or legal permanent residents who obtain immigrant visas through the I-130 process are given “conditional resident” status if their marriage was less than 2 years old on the date of the issuance of permanent residence (the date they entered the U.S.). The same is also true for step-children of the U.S. Citizen or legal permanent resident. These individuals receive a Green Card that is only valid for 2 years. In the 90 days preceding the expiration of the Green Card, these individuals must apply to “Remove the Conditions.” To learn more about Removal of Conditions please click here.
5.Naturalization and U.S. Citizenship
Most LPR’s can apply for U.S. Citizenship after 5 years. Those married to U.S. Citizens can apply after only 3 years. For more information on how to become a naturalized U.S. Citizen, please click here.
Jack, as a U.S. Citizen, can petition for his parents and little brothers to become legal permanent residents. He also found out that because his parents are “immediate relatives”, they can be in the U.S. in less than a year. However, although he could sponsor his brothers, they are not considered immediate relatives and it may take up to 10 years for them to join him. Luckily, Jack learned that as soon as his parents enter the U.S. and become legal permanent residents, they can also file applications for their sons. As Jack’s two brothers are under 21, it may only take 1-2 years for them to join the family. Jack immediately went about collecting the right documents and preparing the I-130 petitions for his mother, father and siblings.
As for Stephanie, who lives abroad, and Juan, whose wife is already in the U.S., stay tuned to our next Article to see how the I-130 Process plays out for them.
The Form I-130, Immigrant Petition for Alien Relative is the most often used method by foreign national relatives of U.S. Citizens and Green Card holders, to come to the U.S. to live permanently. While many can be reunited with their U.S. relatives in a matter of months, the process can be quite complicated and can actually keep families separated for very long if the right steps are not taken.
VisaPro attorneys successfully help U.S. Citizens, Green Card holders, and their foreign national relatives through the I-130 and immigrant visa process.
Contact VisaPro if you are a U.S. Citizen or Green Card holder, intending to bring your family to the U.S. Our experienced attorneys will be happy to assist you.
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