Immigration for a Family Member and K-1 Fiancé(e) Visa
Immigration of a Family Member
A U.S. citizen or lawful permanent resident (a green card holder) may apply for certain family members to obtain lawful permanent resident status (a green card) in the United States. The citizen or the lawful permanent resident who is applying for their family member is referred to as the “Petitioner” and the family member who is trying to obtain a green card is referred to as the “Beneficiary.”
Who Can I Apply For?
Under U.S. Immigration Law you are eligible to file for a family member if they fall within one of these categories/preferences:
- Immediate relatives – spouses, unmarried children under 21, and parents of U.S. Citizens;
- First Preference: unmarried sons and daughters (over 21) of U.S. citizens;
- Second Preference:
- Spouses and children (unmarried and under 21) of permanent residents (this is called the 2A category);
- Unmarried sons and daughters (21 years of age or older) of permanent residents (this is called the 2B category);
- Third Preference: married sons and daughters of U.S. Citizens;
- Fourth Preference: brothers and sisters of adult U.S. Citizens.
What Is The Process?
Usually, the first step is to file an I-130 Petition and other forms with the United States and Citizenship and Immigration Service (USCIS) in the United States. With this petition we have to establish that you are either a U.S. Citizen or permanent resident, that the family member is really your family member, and if you are applying for your spouse, that the marriage is real and not just for immigration purposes. Once the I-130 Petition is approved, there are two ways to get a green card. The first way is called adjustment of status. This means that the beneficiary can get their green card in the United States. For this to happen, your family member must meet the following requirements:
- They are in the U.S.;
- The entered the U.S. legally;
- They have a current legal status (Note, there is an exception to this for immediate relatives. They do NOT have to be in legal status);
- They are otherwise admissible. This means that they meet all the other requirements for a green card holder – this includes criminal issues, health issues, financial issues, and issues surrounding their immigration history.
The second way to get a green card after the I-130 is approved is to do Visa Processing (sometimes called Consular Processing). In this process, the beneficiary has to go back to his or her home country and get their green card papers from the U.S. Consulate in order to return to the United States. Once they arrive in the U.S. they can apply for their actual card. We prefer, when legally possible, to have our clients adjust their status in the United States.
When U.S. citizens apply for their immediate relative spouses, children under 21, or parents (if the petitioner is over 21) and these beneficiaries are in the United Sates, have legally entered, and are otherwise eligible, we can file the I-130 Petition and adjustment application together. This is called a one-step and is the fastest way to get a green card.
How Long Will It Take?
Immediate relatives: if you are a U.S. citizen and applying for your immediate relative (your spouse, children under 21, or parents (as long as you are 21)), and your relative is in the U.S., legally entered the U.S., and is otherwise eligible for a green card, we can file a one-step for them as described above. This means that we can file the I-130 Petition, the application for adjustment, and all the other forms together. This process takes approximately 5-7 months from the date of filing to be adjudicated.
For all other categories and immediate relatives that are not eligible to adjust (usually because they entered the U.S. illegally), we have to figure out several things to assess how long their case will take. This includes:
- How long the I-130 will take to process;
- How long their wait list is, and;
- Whether they can adjust status in the U.S. or if they have to return to their home country to do so.
How long will the I-130 Petition take to process?
First, we have to assess how long the I-130 Petition will take to get approved. For all family members except Categories/Preferences 3 (married sons and daughters of U.S. Citizens) and 4 (siblings of U.S. citizens), USCIS is now taking approximately 5-7 months from the date of filing to process the I-130 Petition. This can take longer if USCIS requests more or different evidence. USCIS can also change their processing times at any time. For Categories 3 and 4, the time it takes for USCIS to process an I-130 Petition is years because of the wait list which is described below.
Wait list to get a green card:
There is no wait list for immediate relatives because Congress does not put a limit on how many immediate relatives can get their green cards in any given year.
However, The U.S. congress allocates only a limited number of visas for every other family category. Those visas get taken very quickly. As a result, there is a huge backlog and a wait list that family members have to get on before they can get their green card. They get on the wait list on the date that they file their I-130 Petition. The date of this filing is called their priority date.
How long the wait list is depends on two things:
- What category is your family member in?
- Where was your family member born?
Every month the Department of State publishes the visa bulletin. This bulletin separates people by category and country of birth. In each box, it lists the priority date of the applications (the date that the I-130 was filed) that are now current, meaning that the family member has a visa available to them. This will give us an idea of how long the wait list is for you family member. However, these dates change every month. This bulletin can be found at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html
Once your family member’s priority date is current, they can adjust their status or do visa/consular processing because a visa number is available to them. They are not given permission to legally live in the United States simply because they are waiting for their priority date to become current.
Where can a beneficiary get their green card? Can they adjust status or do Visa/Consular processing?
If your family member can adjust their status in the United States (see above for requirements), their green card will be processed in approximately 5-7 months after they file their adjustment application and additional forms. (Remember they can file their adjustment application only if they are able to adjust and if they have a visa available to them). This process usually involves getting biometrics (fingerprints and photographs) taken and an interview at USCIS. Please note that this processing time can change day to day.
If your family member has to go to their home country to do Visa/Consular Processing, the process will take longer. Their approved I-130 Petition first goes to the National Visa Center (NVC) which will begin the initial processing of the case for the Consulate. Once this paperwork is completed, the NVC will send the application to the Consulate. Depending on how much paperwork the NVC needs and how fast you can get the paperwork to us, this NVC process can take approximately 2-4 months. The consulate will then schedule an interview with your family member. Once the interview is completed and the Consulate approves the petition, your family member will be given a packet with which they can enter the U.S. Upon arrival they will be considered a permanent resident but will have to actually apply for the green card after their arrival. Every Consulate works on a different time frame, but an estimate of timing for the Consulate is 2-5 months after the Consulate gets the paperwork from the NVC. Accordingly, for Visa/Consular processing, the timing can be 4-9 months after the I-130 Petition has been approved and the wait list is over. This can take longer if the Consulate is busy or if the consulate wants additional evidence or to do an investigation. Please note that if your family member has to file for a waiver while in their home country, this process will take longer. They may have to file for a waiver if they have broken immigration laws, or have been involved or convicted of any criminal matters. This is discussed in detail under the waiver section.
We realize that this is all very complicated and we would be happy to explain it to you with your specific family member in mind. Please do not hesitate to call us to set up an appointment. Lisa Green & Associates, P.C. has been handling family-based cases cumulatively for over 30 years. We have extensive experience in working with USCIS, the National Visa Center, and Consulates around the world.
K-1 Fiancé(e) VISA
A U.S. citizen may file a K-1 visa for a fiancé (e) abroad. A fiancé(e)’s children may also qualify for a K-2 visa, if the children are unmarried and under 21. In order to qualify for a fiancé(e) visa, the following requirements apply:
The couple must have met in person within the past two years of filing the petition (in some cases this requirement can be waived);
They must have a good faith intention to marry and
They must be legally able and willing to get married within 90 days of the fiancé’s arrival in the U.S.
The K-1 process involves 3 steps. First, the petition is applied for in the United States with USCIS. Second, once this is approved, it is then sent to the National Visa Center (NVC) which will prepare the application for the Consulate in your fiancé(e)’s home country. Third, once this paperwork has been completed, the NVC will then send the application to the Consulate. The Consulate will call your fiancé(e) in for an interview. The Consulate has the right to review the entire application. The consulate will assess whether the three requirements listed above have been met. After the petition has been approved, the fiancé(e) must obtain the K-1 visa from the U.S. consulate within four months. Once your finance arrives in the U.S., you must marry within in 90 days. Your fiancé can then petition for a green card in the United States.
The overall processing time can take anywhere in between 9 months to a year depending on how busy the Consulate is, whether all the necessary documents are sent timely and whether the Consulate decides to do an investigation. Please note that this time frame can change at any time.
Lisa Green & Associates, can walk you through the sometimes complex twists and turns of a K-1 visa. Our experienced immigration attorneys will prepare you and your fiancé(e) for the consular interview, as well as the next steps after you are reunited in the U.S.