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Family Preference and Immediate Relative Petitions: The Basics

To promote family unity, U.S. immigration law allows both American citizens and green card holders (i.e. legal permanent residents) to petition for their foreign relatives to come live legally in the United States. There are two main types of family-based immigrant petitions: immediate relative petitions and family preference petitions. Read on to learn more about each type of petition.

Immediate Relative Petitions

Under section 203 of the Immigration and Nationality Act (INA), U.S. citizens can act as green card sponsors for their immediate relatives. The INA defines an "immediate relative" as a U.S. citizen's spouse, unmarried child who is less than 21 years old, or parent (if the U.S. citizen is more than 21 years old). Immediate relatives of U.S. citizens have immigration priority. This means that there are unlimited green cards available for them, so they don't have to wait for a visa number to become available.

Family Preference Petitions

While only U.S. citizens can file immediate relative petitions, family preference petitions are available for both U.S. citizen and green card holder sponsors. The chart below outlines which family relationships qualify for citizen and green card holder family preference petitions.

U.S. Citizens

U.S. citizens are able to sponsor the following eligible relatives via a family preference petition:
  • Their unmarried sons and daughters who are more than 21 years old
  • Their married children (of any age), and/or
  • Their brothers and sisters (if the U.S. citizen petitioner is more than 21 years old)

Green Card Holders

Green card holders are able to sponsor the following eligible relatives via a family preference petition:
  • Their spouse, and/or
  • Their unmarried children (of any age)

It's important to note that an approved family preference petition doesn't automatically result in a green card being issued. In fact, even after their petition is approved, the foreign relative must wait for a green card to become available as per the Visa Bulletin. The State Department releases a Visa Bulletin each month to announce which visa numbers are currently available.

Because there is usually a wait before a visa number is available, it's recommended that you apply for an immediate relative petition rather than a family preference petition if you have a choice between the two. For this month's visa bulletin, check out the U.S. Department of State's website.

Definition of "Child"

When you hear the word "child" you may think of a toddler. However, under the INA, the term "child" means an unmarried person who is less than 21 years old. When a person turns 21 and is no longer considered a child for immigration purposes, the person has "aged out."

However, because so many applicants were ageing out due to long visa processing times, the Child Status Protection Act (CSPA) was enacted. Under the CSPA a person may still be able to be classified as a child even after their 21st birthday if they meet CSPA's eligibility criteria.

Derivative Beneficiaries

The relative who is sponsored under a family-based immigration petition is known as the primary beneficiary. But what about the primary beneficiary's spouse and children? Are they also eligible for a green card? The answer depends on whether the primary beneficiary's green card was approved via an immediate relative petition or a family preference petition.

  • Family Preference Petitions: If the primary beneficiary's family preference petition is approved, then his or her spouse and minor children may also be eligible for a green card.
  • Immediate Relative Petitions: An immediate relative petition is only for the primary beneficiary, and does not provide for derivative beneficiaries. Therefore, the primary beneficiary's spouse and minor children must have their own petitions filed and qualify for a green card independently.

Additional Resources

Immigration law changes frequently. For case specific information about family preference and immediate relative petitions, it's in your best interests to consult with a local immigration lawyer.

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