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QUALIFYING FOR PERMANENT RESIDENCE BASED ON A
FAMILY RELATIONSHIP
The following are the
family-based groups that have been designated as
eligible for permanent residence:
IMMEDIATE RELATIVES OF U.S. CITIZENS
Persons who qualify as immediate relatives of
U.S. citizens are preferred as candidates for
immigration and no numerical limitation is placed on
the number who may become permanent residents in any
one year. The following three groups qualify as
immediate relatives of U.S. citizens:
- Spouses
The marriage must not be a
“sham”- one entered into in order to obtain an
immigration benefit. The marriage must be
legally entered into, both parties were free to
marry, all prior divorces were legal, and the
marriage formalities are recognized as legal in
the jurisdiction where the marriage occurred.
The marriage must still legally exist (the
parties cannot be divorced or legally
separated.)
The spouse of a citizen whose
marriage was created within two years prior to
being granted permanent residence is granted
residence on a conditional basis. Conditional
residence is subject to termination within two
years after it is granted if the marriage has
terminated by divorce or annulment during that
period, or the marriage turns out to be a sham.
Spouses of deceased citizens qualify as
immediate relatives if they have been the spouse
of the deceased citizen for at least two years
and were not legally separated at the time of
the citizen’s death. The immediate relative
immigrant visa petition must be filed within two
years after the date of death and the alien must
still be unmarried at that time. Unmarried minor
children of the alien spouse may be included in
the petition.
Battered spouses of
citizens may file their own immediate relative
petitions. To qualify, the alien spouse must be
a person of “good moral character,” must have
entered the marriage in good faith, must have
resided in the United States with the citizen
spouse, and must have been battered or subjected
to “extreme cruelty” by the citizen spouse.
Identical benefits are available to battered
children of a U.S. citizen.
- Children
To be a “Child,” the
alien must be unmarried and under the age of 21
years. Children born out of wedlock to
citizen-mothers also qualify. A citizen-father
may petition for his child born out of wedlock
only if the child was legitimated prior to the
age of eighteen and the child is in the “legal
custody” of the citizen-father, or the
citizen-father has or had a bona fide parent
child relationship with the child. Adopted
children may quality if the adoption was
finalized prior to the child’s 16th birthday and
certain procedural requirements with regard to
the adoption have occurred. Stepchildren may
qualify if the step relationship was established
before the child’s 18th birthday. Special rules
apply to foreign orphans adopted by U.S.
Citizens.
- Parents
Parents of U.S. citizens
are eligible only if the petitioning citizen
child is 21 years of age or older.
OTHER CLOSE FAMILY MEMBERS OF U.S. CITIZENS OR
PERMANENT RESIDENTS
Other groups of family members of citizens or
permanent resident aliens can qualify to immigrate
to the United States, but are not considered as
“preferred” as immediate relatives of citizens.
These aliens are subject to a numerical quota
limiting the number of immigrant visas available
each year. Since only a limited number of visas are
available, these groups are divided into
“preference” categories, ranking them in the order
in which they are preferred for immigration. The
higher the preference, the more quickly a visa will
be available. Immediate family members of preference
aliens (spouses and minor children) can immigrate
with them.
The following categories are the groups given
this preference:
- Unmarried Sons and Daughters of U.S.
Citizens
This group does not qualify as
immediate relatives because the sons and
daughters are 21 years of age or older.
- Spouses and Unmarried Sons and Daughters
of Permanent Resident Aliens
This
preference is divided into two groups:
preference 2A includes spouses and children of
permanent residents, and preference 2B unmarried
adult sons and daughters of permanent residents.
- Married Sons and Daughters of Citizens
This group does not qualify as immediate
relatives because the sons and daughters are
married (and some of them are also 21 years of
age or older).
- Brothers and Sisters of U.S. Citizens
This citizen petitioner must be at least
twenty-one years old in order to file for
his/her siblings.
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