You may have wondered why some applicants receive their immigrant visa or status much faster than others, in some cases, taking over 20 years to obtain an immigrant visa. The Immigration and Nationality Act (INA) lists specific family categories through which U.S. citizen or Lawful Permanent Residents may file immigrant petitions on behalf of certain family members. And, certain types of petition are subject to annual numerical limitations, meaning there are only a limited number of visas issued annually in each specific category.
There are two types of family-based petitions: immediate relative and family preference petitions. Immediate relative petitions are those in which a U.S. citizen may file for their spouse, parent, or unmarried child under the age of 21. Significantly, immediate relative petitions always have an immigrant visa available them, so there is essentially no wait for an immigrant visa (aside from the time it takes the government to routinely process the application). Beneficiaries of a family-preference petition, however, are subject to those annual numerical limitations. At the time of filing, family-preference petitions are assigned a “priority date” and must wait until the priority date becomes “current” before the beneficiary can apply for their immigrant visa or adjust status in the U.S. The Department of State publishes a monthly Visa Bulletin which determines the priority dates that are current for that month. How fast a priority date becomes current depends on the beneficiary’s country of birth, priority date that was given at the time of filing, and the number of already pending applications. This wait can sometimes take years or decades.
Family preference categories include:
Remember that spouses, parents, and unmarried children under 21 of U.S. citizens are considered immediate relative and are not issued a priority date because they always have a visa immediately available.
As you can see, there are certain familial relationships that are not designated in the INA and would not be eligible for an immigrant visa (for example, married sons or daughters of a lawful permanent resident). Furthermore, the relationship must continue to exist at the time the beneficiary obtains their immigrant visa. For example, an unmarried daughter of a lawful permanent resident who is the beneficiary of an F2B petition must remain unmarried until they are admitted to the United States on that immigrant visa. If they marry prior to admission to the United States, even if the visa was already approved by the consulate, that petition will be invalidated. However, note that if the petitioner happens to become a citizen while the beneficiary is still unmarried, they will move to the F1 family-preference category as an unmarried child of a U.S. citizen and become eligible for that immigrant visa. Then, if the beneficiary does happen to marry after the petitioner becomes a citizen, they would move to the F3 family-preference category. This is only a possibility if the petitioner becomes a citizen before the son or daughter get married.
If you have any questions about filing a family petition, or have questions about a petition you already filed, please contact the attorneys of Minsky, McCormick & Hallagan at 312-427-6163 to schedule a consultation.