Family Preference Petition

U.S. immigration law provides for "family preference" categories through which U.S. citizens and lawful permanent residents may file immigrant petitions on behalf of certain relatives. The purpose of the family preference petition is to reunite families.

Family preference petitions differ from "immediate relative" petitions, which a U.S. citizen may file on behalf of their spouse, children (unmarried and under the age of 21), or parents. Most notably, while immediate relative petition beneficiaries always have immigrant visas available to them, family preference petition beneficiaries are subject to a numerical limit each fiscal year. Since the demand for family preference visas exceeds the supply, beneficiaries are assigned priority dates and must wait until their priority date is "current", as determined by the State Department’s monthly Visa Bulletin, before they can apply for immigrant visas or adjustment of status. Depending on the visa preference category, the beneficiary's country of birth, and the fluctuations in visa demand, this wait may be a few years or several decades.

Who May Petition and Eligible Beneficiaries

A U.S. citizen may file a family preference immigrant petition on behalf of their:

  • Unmarried son or daughter (over the age of 21 – those under 21 are classified as immediate relatives);
  • Married son or daughter; or
  • Brother or sister (if the U.S. citizen petitioner is 21 years or older).

A Permanent Resident may only file an immigrant petition on behalf of their:

  • Spouse;
  • Child (unmarried and under the age of 21); or
  • Unmarried son or daughter (over the age of 21).

Petition Process

The petitioner files an I-130 petition on behalf of the beneficiary with USCIS, and provides proof of the petitioner's U.S. citizenship or lawful permanent resident status, and evidence of the family relationship, such as birth and/or marriage certificate(s). Permanent residents applying for their spouse must also provide evidence that the marriage is bona fide, and was not entered into for the purpose of obtaining immigration benefits.

Upon approval of the petition, the petition's filing date becomes the family member's priority date and the family member is assigned to the appropriate visa preference category. Once their priority date is current, they may either apply for adjustment of status (if they are in the U.S. and meet certain eligibility criteria), or for an immigrant visa at a U.S. consulate abroad.

Note that an approved immigrant petition does not confer any status on the beneficiary, nor does it provide work authorization or a guarantee that the beneficiary will be found eligible for an immigrant visa or adjustment of status.

Preference Categories

These family members are divided into several preference categories. First and second preference beneficiaries generally have a shorter wait than third and fourth preference, although it can vary by the beneficiary's country of birth.

Also, due to per-country visa limitations and greater demand, beneficiaries chargeable to China (mainland), India, Mexico, and the Philippines may have to wait longer for their priority date to become current.


Priority Dates

The State Department releases a Visa Bulletin each month to announce visa availability. In order to apply for an immigrant visa (at a U.S. consulate abroad) or adjustment of status (with USCIS, if the beneficiary is in the U.S.), the beneficiary's priority date must be prior to the date listed in the visa bulletin for their category. Click here to view the current visa bulletin.

Derivative Beneficiaries

Spouses and minor children of F3 and F4 beneficiaries, and minor children of F1 and F2B beneficiaries may be listed as derivative beneficiaries on an immigrant petition. For most purposes under the immigration laws, a child is considered a minor until they reach the age of 21. Each principal and derivative beneficiary, however, will need to file their own visa application or adjustment of status application.

Because far more petitions sponsoring immigrants are approved each year than there are immigrant visas in the annual allotment authorized by Congress, many categories have very long wait times. Additionally, the immigration laws do not permit more than 7{877c034753eacee7259c3c97ae2e02ad1f8f94c95ed6455a0455c04073043e02} of the visas in any category to be issued to persons born in any single country. The law also requires that visas be issued in the order that petitions were filed. For countries with large population and high visa demand such as China, India, Mexico, and the Philippines, the effect is visa waiting lists that are many years long.

For minor children, the wait for a visa is often so long that they “age out” by reaching the age of 21 before a visa becomes available. Once a child ages out, even if through no fault of their own, they no longer qualify for the visa.

Congress partially addressed the age out issue in 2002 by adopting the Child Status Protection Act (CSPA) which for some immigrant categories, when pertinent requirements are met, protects visa eligibility for those who were children when a petition was filed for them or their parent (of which they are a derivative beneficiary) even after they reach 21. The CSPA is a complicated statute, applying different formulas to different situations.

Determining CSPA Benefit Eligibility in Preference Cases

As applied to individuals seeking to immigrate as a direct or derivative beneficiary of a family or employment based preference category petition, under the CSPA, a child’s age is reduced by the amount of time the underlying petition was pending with USCIS.

For such individuals, the relevant factors include, among others:

  • The beneficiary’s date of birth;
  • The visa preference category;
  • The date the underlying petition was filed with USCIS;
  • The date the underlying petition was approved by USCIS;
  • The date the beneficiary’s immigrant visa priority date first becomes available; and
  • The date the beneficiary “seeks to acquire” permanent residence after the priority date become current.

An individual’s “CSPA age” in most cases is calculated as:

The actual age on the date an immigrant visa in their category first becomes available


The number of days that the underlying sponsorship petition was pending with USCIS before approval.

If the individual’s CSPA age, as calculated by this formula, is less than 21 years, the individual remains a child for immigration purposes provided the individual “seeks to acquire” permanent residence within one year of the visa first becoming available.

“Seek to acquire” has been interpreted as taking certain steps such as filing an adjustment of status application if in the U.S., or taking steps to pursue the consular visa application process.

Once an individual has met the “seek to acquire” standard in the first year of visa availability, their CSPA age will be frozen for the duration of permanent residence processing in that category (and in some cases across categories). This is a huge benefit, as demonstrating visa eligibility in complex cases can take years.

If the individual does not “seek to acquire” permanent residence within the first year of visa availability, CSPA benefits will thereafter be unavailable. Because CSPA only subtracts the USCIS adjudication wait time from a beneficiary child’s age, and not the wait time for an immigrant visa to become available, CSPA relief is of limited benefit. In the right circumstances, however, CSPA creates an opportunity for immigration where none would have otherwise existed.

Example 1

Facts: Adam was born on January 1, 1990. On April 1, 2005, a petition was filed for his mother. That makes Adam a derivative beneficiary of his mother.

USCIS approved Adam’s mother’s petition 3 years later on March 31, 2008, when Adam was 18 years and 3 months old. (That is much longer than USCIS usually takes.) Visas were not available at that time so Adam and his mother had to wait until they were available before applying for permanent residence. That happened on October 1, 2013, when Adam was 23 years and 9 months old.

Calculating CSPA Age: Adam’s age for purposes of qualifying for the derivative beneficiary visa is calculated using the CSPA formula described above.


Result: Even though Adam’s biological age is over 21 years, he remains a minor child under the immigration laws. He can take advantage of this benefit only if he seeks to acquire permanent residence within one year of visa availability, i.e., before October 1, 2014.

Example 2

Similar to Example 1, but petition approved in 1 year instead of 3.

Facts: Eve was also born on January 1, 1990, and is a derivative beneficiary of an April 1, 2005, petition filed for her mother.

USCIS approved Eve’s mother’s petition only 1 year later on March 31, 2006, when Eve was 16 years and 3 months old. Again, visas were not then available in Eve’s category so she and her mother had to wait until they were available before applying for permanent residence. That happened on October 1, 2013, when Eve was 23 years and 9 months old.

Calculating CSPA Age: Eve’s age for purposes of qualifying for the derivative beneficiary visa is calculated using the CSPA formula described above.


Result: Since Eve’s biological age and her CSPA age are both over 21, she is no longer a minor child under the immigration laws. She is ineligible for permanent residence based on the petition filed for her mother.