Posted Oct 15, 2003

We at The Law Office of Sheela Murthy, P.C. receive many, many questions surrounding Permanent Residency, Citizenship, and how family members, spouses, and children may benefit. It is important for individuals to know what family members they might be able to bring to the United States permanently. These are important questions worth researching, even before embarking on the path to the green card. This article should answer many of those questions.

FAMILY MEMBERS

Parents and Siblings

Permanent residents may sponsor neither their parents nor siblings for a green card. Only U.S. citizens may do this. However, even U.S. citizens may not bring siblings to the U.S. without an extended waiting period. Parents of U.S. citizens are regarded as "immediate relatives" and are not subject to numerical limitations. They only have to wait for the necessary paperwork processing. This includes the I-130 in the immediate relative category and consular processing for immigrant visa, if the parent is abroad. If the parent happens to be in the U.S., then it may be possible to file the I-130/I-485 at the same time and obtain permanent residence from within the U.S.

The situation for siblings, however, is far different. They have to wait many years before the priority dates in the sibling category of family-based fourth preference become current. Immigration benefits are only available if the priority date is current. The visa dates of the U.S. Department of State are updated monthly (usually around the 10^th of each month) and are available on MurthyDotCom. Further explanation of priority dates is available in our article, Priority Dates : How Do They Work?,  available on MurthyDotCom.

Aunts, Uncles, Cousins, and Grandparents

More distant relatives, such as aunts / uncles, cousins, and grandparents cannot be sponsored for a green card. Even U.S. citizens cannot petition for these relatives. It may be possible to invite them for a temporary visit on a visitor's visa, depending upon whether they have sufficient ties to their respective home countries to show that they have no immigrant intent. Of course, they may also be sponsored if they are qualified and the sponsoring relative owns a business or is able to find employment for the foreign national relative under the employment-based preference categories.

SPOUSES

Marriage before Green Card Approval

Whether or not a spouse can be sponsored depends upon the timing of the marriage. This is a very important matter for anyone considering marrying someone from one's home country. It is vital that the marriage occur before the green card case (I-485) is approved. If the primary applicant marries before approval of the I-485, the new spouse will be entitled to derivative immigration benefits. S/He is entitled to the same preference category as the primary beneficiary and the same priority date. This is true even if the marriage occurs well after the establishment of the priority date.

If the derivative spouse is in the U.S., s/he would be able to file for adjustment of status, if otherwise eligible. The most common, and perhaps ideal, scenario is for the marriage to occur while the primary spouse is maintaining nonimmigrant status that permits dual intent, such as the H1B. The H1B spouse would travel to the home country, marry, and return with the spouse, who would hold H-4 status. They would then file I-485s simultaneously. If the primary applicant files the I-485 previously, the derivative would simply file the I-485 shortly after arrival in the U.S. The ability of the derivative spouse to file an I-485 is dependant upon the priority dates being current. There are times when the priority dates "retrogress," or move backwards. If this is the case, the I-485 cannot be filed until the priority date again becomes current.

If the derivative spouse cannot enter the U.S. on a nonimmigrant visa for any one of a number of reasons, it is necessary to consular process for an immigrant visa. This may occur after the primary beneficiary has obtained the approval of the I-485 or both spouses decide to consular process the two cases to obtain permanent residence together. If the principal decides to continue the pending I-485 application, there could be longer waiting periods resulting from the substantial increase in paperwork. Unless the priority dates retrogress, there would not be a priority date waiting time. There is no need for a family-based petition, as the spouse is part of the existing green card case.

Children of lawful permanent residents may be sponsored only as long as they are unmarried and should not marry prior to the green card approval. However, if they marry after the I-130 has been filed, the petition is deemed invalid, and neither the person nor the new spouse would be able to become a green card holder based on that filing. Therefore, unmarried children of lawful permanent residents, who are the beneficiaries of I-130 petitions based on this relationship, should not marry if sponsorship by a lawful permanent resident parent is the only avenue available to them for obtaining permanent residence.

Marriage after Green Card Approval

If the marriage occurs after the green card is approved, there is then a substantial wait before immigration benefits can be conferred to the spouse. In this event, the new spouse is a family-based (FB) preference relative, falling within category FB 2A. The permanent resident spouse must file an I-130 petition for the foreign national spouse and wait for the priority date to become current to apply for the immigrant visa or adjustment of status. The waiting time for priority date availability in FB 2A has historically been from five to seven years. This continues to be the case, as of October 2003. Therefore, there is an enormous difference between marriage before the I-485 is approved and marriage after its approval for employment-based applicants for the green card.

With respect to marriage timing, one situation we see with alarming frequency is that in which an individual goes abroad to marry while the green card case is pending. S/He is married and returns to the U.S. shortly thereafter to resume his/her job and get things ready for the new spouse. The new spouse remains behind to wrap up personal matters before coming to the U.S. The primary spouse goes through the mail that accumulated during his or her absence and finds an I-485 approval notice that pre-dates the wedding. At that point, there is a serious problem. We urge people to plan ahead to avoid this situation. Of course marriage arrangements and timing are no simple matter, but things must be done well in advance of the date when a decision on the I-485 application is imminent. Given the slow pace of I-485 adjudications, this should be a manageable priority. However, one should not just rely on slow adjudications on the I-485s. A particular service center could always speed up the processing of these cases if they make I-485s a priority.

Children

Children of the new permanent resident who are born in the United States are U.S. citizens. They may be entitled to dual citizenship of the U.S. and the parent's home country, depending upon that country's laws. Children who are born abroad prior to the grant of permanent residence are the same as spouses who marry before the green card approval. They may adjust status to permanent residence, if in the U.S., or undergo consular processing. Children born abroad after the principal's adjustment date are also entitled to the same priority date and procedure to obtain permanent resident status, if born of a marriage that occurred prior to the adjustment of status. This can be important when the derivative spouse is expecting a baby, but the baby is born after the green card case is approved.

Once both husband and wife are permanent residents, they may face the decision whether to have their children born in the U.S. or in the home country. Some people chose to have their children in the home country to be close to their families. Children born abroad to permanent resident mothers are permanent residents, if certain conditions are met. The requirements are that such a child must be brought to the U.S. on the mother's first return trip, which must occur before the child is two years of age. As of this writing, the child in this situation does not need a visa. The necessary paperwork is processed at the port of entry, based on the mother's permanent resident status and the child's birth certificate.

Adoptions of children from abroad are far more problematic. Many new permanent residents would like to adopt children from their home countries. This often leads to heartbreaking situations, due to the inability to bring the children to the U.S. An adopted child, if s/he has lived with the family under legal authority for two years, would be regarded as a child under immigration law. In the event of an adoption, the permanent resident may file a family-based preference petition, FB 2A. The waiting times for priority dates in that category are lengthy. The situation is easier for U.S. citizens who adopt orphans from abroad. We would urge anyone contemplating foreign adoption to seek qualified legal advice.

See also, Permanent Residents : What's Next?, available on MurthyDotCom, which provides information important for all permanent residents.