Disclaimer: The information below is a basic explanation of the family based petition process and is not legal advice.  Each immigration case is different based on a person’s individual immigration, family, and criminal history.

Current U.S. immigration law allows U.S. Citizens and Permanent Residents to petition for certain family members.  Who qualifies as a family member is defined by the immigration statutes and case law.  Immigrant family members are currently split into two groups: (1) immediate relatives of U.S. Citizens, and (2) preference category based relatives of U.S. Citizens and Permanent Residents.  The U.S. Citizen or Resident who files the petition is called the Petitioner, and the family member they are petitioning for is called the Beneficiary.

Immediate Relatives of U.S. Citizens (Spouse, Parent, unmarried Child under the age of 21) do not have to wait for a visa number in order to pursue their Residency (“Green Card”) through either the immigrant visa process abroad or through Adjustment of Status within the United States.  All other preference category based relatives are issued a “priority date” upon the filing of the family based petition. 

The Beneficiary of a preference category petition will not have a visa number available until his/her priority date is current—this means that the Beneficiary’s priority date either falls on the same day or prior to the date on the Department of State’s Visa Bulletin.  Additionally, certain preference based Beneficiaries may have “derivative” relatives included on their petition.  However, due to the long wait times for priority dates to become current, derivative children often turn 21 years old before a visa becomes available and “age out,” making them ineligible to receive a visa when it becomes current.

It is important to know that once a visa number is available for an approved family-based petition, this does not automatically mean that the Beneficiary is approved for Residency.  A separate application for Residency must be made either through immigrant visa consular processing at an embassy/consulate abroad, or by the filing of an Adjustment of Status Application in the United States.  The process that a person has to go through depends on their immigration history.  In both of these applications, the Beneficiary/Applicant must prove that he/she is: (1) eligible to file the application they seek, (2) not inadmissible to the United States (does not have immigration violations), and (3) is deserving of discretion in be granted a visa.

U.S. Citizens may petition for the following family members:

     Immediate Relatives

  • Spouses
  • Unmarried Children under the age of 21
  • Parents

    Preference Category Based Relatives

  • Unmarried Sons and Daughters over the age of 21 (Category F1—1st Preference)
  • Married Sons and Daughters (Category F3—3rd Preference)
  • Brothers and Sisters of Adult U.S. Citizens (Category F4—4th Preference)

U.S. Residents may petition for the following family members:

Preference Category Based Relatives

  • Spouses (Category 2A—2nd Preference)
  • Unmarried Children under the age of 21 (Category 2A—2nd Preference)
  • Unmarried Sons and Daughters over the age of 21 (Category 2B—2nd Preference)

For advice specific to your case, please call Dady & Hoffmann LLC at (815) 394-1359 to set up a consultation with one of our attorneys.