Eligibility and Preference Categories

Whether someone can petition for a family member to come to the United States, and how long it takes before that person can come, depends on the relationship that exists between the parties. U.S. citizens over the age of 21 can file a petition for their spouse, children, siblings, or parents. The age and marital status of children impacts which category they belong to. Lawful permanent residents can file a petition for their spouse or unmarried children only.

There are unlimited green cards available for the spouse and unmarried minor children of a citizen. All the other relationships fall into one of the "preference categories" for which only a limited number of green cards are issued every year. This system has resulted in a backlog that can result in a delay of months or years between the filing of a petition and its approval.

Changing Preference Categories

If, during the pendency of the application, the lawful permanent resident petitioner acquires citizenship; the beneficiaries of visa petitions filed by that person will be moved to their new category when the petitioner indicates their change of status to the immigration service.

Another change in preference categories can occur when a child marries or turns 21. Either of these events may invalidate or change the beneficiary's preference category. If the petitioner is a lawful permanent resident, the marriage of their beneficiary child renders them ineligible for the
"unmarried child" category. Since no category exists for the married children of permanent residents, their petition is entirely void. The child-beneficiary of a petition by a U.S. citizen, on the other hand, has their visa petition transferred from the unmarried child category (First Preference) to the married child category (Third Preference).

Similarly, reaching 21 years of age can impact the eligibility for a particular category. The Child Status Protection Act (CSPA) may permit some applicants to maintain their preference category. A close examination and the assistance of an immigration attorney can help to effectively navigate the CSPA regulations.

Temporary Fiancé(e) Visas

The K visa permits a foreign national to enter the country to marry a U.S. citizen. The couple must have met at least once in the two years prior to the filing of the application. There are many other restrictions. The beneficiary of a K visa who then enters the country must marry the petitioner and apply for permanent residence under a separate application within 90 days of their arrival. Those who enter the country with the K visa may not change or extend their status to another non-immigrant visa. They are also barred from applying for permanent residency on any grounds other than their marriage to the specific U.S. citizen that sponsored them. Exceptions to these limitations are rare.