Immediate Relative Petition

U.S. immigration law provides for "immediate relative" categories through which U.S. citizens may file immigrant petitions on behalf of their spouse, unmarried children under age 21; or parents.

The purpose of the family preference petition is to foster family unity for U.S. citizens.

Upon petition approval, the family member is immediately eligible to apply for adjustment of status to permanent resident or to file an immigrant visa application. (A detailed overview of the petition and adjustment of status process for spouses of U.S. citizens may also be found here.)

U.S. citizens may also file "family preference" immigrant petitions for their sons and daughters who are 21 years of age or older and/or married, and their brothers and sisters. Additionally, permanent residents are eligible to file family preference petitions for their spouses, children, and unmarried sons and daughters (over the age of 21).

Who May Petition and Eligible Beneficiaries

A U.S. citizen may file an immigrant petition on behalf of his or her:

  • Spouse;
  • Child (under the age of 21 and unmarried);
  • Stepchild (if the petitioner's marriage to the child's parent took place before the child's 18th birthday); or
  • Parent (only if the petitioner is 21 years of age or older).

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, and evidence of the family relationship.

If the beneficiary will apply for an immigrant visa abroad, USCIS will forward the approved petition to the State Department’s National Visa Center, which will issue visa fee bills and requests for additional documentation. After the visa fees are paid, the beneficiary can then apply for an immigrant visa. The beneficiary will be required to undergo a medical examination by an authorized physician and attend an immigrant visa interview at a U.S. consulate.

If the beneficiary is in the U.S., an adjustment of status ("AOS" or "adjustment") application may be filed concurrently with the I-130 petition. Although the two filings will be adjudicated together, they are considered two separate proceedings achieving two separate ends. The immediate relative petition establishes that the petitioner is a U.S. citizen and that the petitioner and the beneficiary are related. The adjustment application establishes the identity of the beneficiary, establishes that there are no admissibility issues affecting approval (such as affidavit of support inadequacies, medical issues, certain types of criminal convictions, or certain immigration violations), and provides sufficient information to conduct background checks. Additionally, if the beneficiary is in the U.S. he or she may apply for employment authorization and travel authorization concurrently with the adjustment of status application.

Employment Authorization & Advance Parole While Application is Pending

Given that the AOS process can be time consuming, while the AOS application is pending, the law permits the foreign relative to obtain an Employment Authorization Document (EAD) and to secure a travel document (Advance Parole) permitting foreign travel and return without disruption of the adjustment proceeding. Both are valuable benefits which must be used with care, and both require application and grant before the benefit can take effect. In many cases, EAD and Advance Parole applications are routinely filed with the adjustment application package, and are granted within a few months, often faster.

An EAD is required before the foreign relative may accept employment, unless they were previously employment authorized by virtue of ongoing nonimmigrant status. The AOS based EAD is granted for one year, and continued employment requires that the EAD be kept current. It is best to apply for an EAD renewal 90 days before expiration to prevent gaps in employment authorization.

The Advance Parole is a valuable tool which allows the foreign relative to travel internationally without abandoning their application for AOS. It can be particularly useful where an applicant travels frequently on business. However, they can be tricky to use in practice. Also, it is critically important to remember that USCIS rules deem an AOS proceeding to be abandoned if the applicant departs the U.S. to any foreign destination without having a granted and current advance parole in hand. (The intent is to prevent an applicant from maintaining an AOS proceeding while seeking consular immigrant processing at the same time, among other reasons.) Moreover, the AOS applicant must leave and return on the same parole document. Under current USCIS policy, the applicant may not leave on one valid parole and then return on a second, renewed parole, even if out of the country for only a few days. If an Advance Parole is about to expire, a renewal application still pending, and travel abroad is urgent, a parole renewal may be available by applying in person at a District Office. Note also that, on return, the foreign-relative will be in parole status, which does not provide some of the legal rights available to persons in nonimmigrant status. Although not a major concern in most cases, let us know if you have questions on this point.

Affidavit of Support

The immigration laws also require that the U.S. citizen relative execute an affidavit of support that commits to reimbursing federal, state, and local governments for the cost of any public assistance benefits that the foreign relative might receive during the first ten years after grant of permanent resident status. It is a binding contract. The affidavit requires demonstration that the U.S. citizen relative’s household income is, in most cases, at least 125{877c034753eacee7259c3c97ae2e02ad1f8f94c95ed6455a0455c04073043e02} of the federal poverty income guidelines, which change annually. A U.S. citizen relative whose income does not meet this threshold may include the income of others in the household, in some cases including the income of the foreign relative. If household income is still insufficient, the U.S. citizen relative may qualify on the basis of savings, property owned, or with the participation of a joint sponsor.

Preserving Permanent Residence

Finally, keep in mind that Permanent Resident status is not necessarily permanent. In addition to conviction of certain crimes, and other grounds, it can be lost by engaging in conduct inconsistent with an intent to reside permanently in the U.S. This may include purchasing a primary residence abroad, taking a job abroad without a predetermined end date, or traveling outside the U.S. for more than a year without first obtaining a re-entry permit, among others. There is no bright-line test and you will receive no letter from USCIS. Often, a Permanent Resident does not discover there is a problem until refused entry to the U.S. at an airport inspection. If, after adjusting, you are expecting to travel abroad frequently or for extended periods, please let us know so that we can discuss measures you can take to help avoid losing Permanent Resident status and to minimize the time required to qualify for citizenship by naturalization.