Alien Relative Petition
If you are a citizen or lawful permanent resident and are hoping to bring family members to this country to live, you will first have to file an alien relative petition on their behalf with USCIS. Once this has been approved, and your loved one has a visa number available, he or she can complete the process of obtaining a green card either through consular processing or adjustment of status.
Immediate Relative Categories
The US government supplies an unlimited number of immigrant visas for this category. A visa number would always be available for any member of this group once the petition is approved. This category includes:
- Spouses of US citizens
- Unmarried children under the age of 21 of US citizens
- Parents of US citizens (provided that the citizen is at least 21 years old)
Family Preference Categories
This type of visa is limited, with a specific quota set for each of the four categories. The key difference between immediate relative visas and family preference visas is that there is a limit to the visas available in the latter group, and there may be a wait of several years for a visa number to become available. The qualifying relationships in this category include:
- Unmarried children of US citizens and their own children
- Spouses, minor children and unmarried adult children of permanent residents
- Married children of US citizens and their own spouses and children
- Siblings of US citizens over the age of 21, as well as the sibling's spouse and children
The Supreme Court of the United States in U.S. v. Windsor struck down Section 3 of the Defense of Marriage Act (DOMA), which now means that same-sex marriages and spouses are recognized as lawful under the Immigration and Nationality Act if the marriage is valid under the laws of the state where it was celebrated. Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013). Spouses of same-sex marriages that are valid in states where the marriage was celebrated are now eligible for family-based green cards.
Once the foreign national seeking to obtain a green is the beneficiary of an approved petition, and a visa number is immediately available to him or her, there are two ways to apply for a green card: consular processing and adjustment of status. If the applicant resides outside of the US, or if the applicant resides in the US but is ineligible for adjustment of status, he or she must apply at a US consulate abroad. The foreign national submits the necessary paperwork, and attends any required interviews, at the US consulate in their country of origin. The result of a successful case of consular processing is that the foreign national is granted an immigrant visa, which enables him or her to lawfully enter and remain in the US as a permanent resident. The person's green card will then be mailed to his or her new home address in the US within a few weeks of his entry.
Adjustment of Status
Adjustment of status is a procedure that allows an eligible foreign national to obtain a green card in the US without having to return to his or her home country to apply for an immigrant visa at the US consulate. Instead, he or she is permitted to remain in the US, and apply for work authorization while the green card application is pending. He or she may even be able to obtain a travel document to travel abroad while awaiting a decision on his or her green card application. One cannot just choose to adjust status in the US. The foreign national must be eligible under Section 245 of the Immigration and Nationality Act. Generally, the applicant must have entered the US lawfully, after inspection by immigration agents, and be in valid visa status at the time he or she applies for adjustment. One major exception regarding overstays applies to the immediate relatives (spouse, minor children, parents) of US citizens. As long as they were admitted to the US, whether with a visa or an advance parole travel document, they may apply for a green card through adjustment of status, even if their lawful status expired.
Conditional Resident Status
Immigrants who obtain a green card based on a marriage that was less than two years old at the time of the petition, are granted conditional resident status, and receive a green card that is valid for only two years. In order to remain a lawful permanent resident beyond this two-year window, the immigrant must file a petition to remove the conditions on during the 90-day period before the conditional permanent resident status expires. Failure to properly and timely file a petition to remove conditions can result in the immigrant being placed in deportation proceedings.