Family Petitions and Family Immigration
A family petition is the first step in the process of helping a relative become a Lawful Permanent Resident (LPR or green card holder). The family petition only establishes that the person has a qualifying relationship to be able to apply for residency, and does not on its own permit work or give lawful status. It's important to review any family petition with an immigration attorney because the process can be complicated and many people do not learn of problems until the very end, when they have their interview in the US or at an embassy abroad.
The first question in any family petition is whether the required relationship exists. The different types of family petitions allowed under the law are shown in the following table:
| Petitioner's Status | Spouse | Child (unmarried, under 21) | Child (over 21) | Child (married) | Parent | Sibling |
| US Citizen (over 21) | Yes | Yes | Yes | Yes | Yes | Yes |
| US Citizen (under 21) | Yes | Yes | N/A | N/A | No | No |
| LPR (green card holder) | Yes | Yes | Yes | No | No | No |
As you can see in this table, US Citizens can petition for more family members. Residents can petition for fewer family members, but they can still petition for their spouse and most children. One important exception is for married children - an LRP must become a citizen to file for those children. Another frequent issue is that only US Citizens over age 21 can petition for their parents. It is not possible for a young child to petition for their parents, as a result. It's also important to understand that there are different categories of petitions that determine how long the wait for a visa will take (the visa must be available whether or not the person actually goes abroad to get a visa). A category of "immediate relative" means that there is no required wait for a visa to become avaialble, but there is still a wait for the petition to be approved and for the interview. Other categories have the advantage of being able to include derivative family members, but can include long waiting periods. The following table shows what categories apply to each relationship:
| Petitioner's Status | Spouse | Child (unmarried, under 21) | Child (over 21) | Child (married) | Parent | Sibling |
| US Citizen (over 21) | IR | IR | F1 | F3 | IR | F4 |
| US Citizen (under 21) | IR | IR | N/A | N/A | N/A | N/A |
| LPR (green card holder) | F2A | F2A | F2B | N/A | N/A | N/A |
These categories determine the waiting time for a visa. The date of petitions which are currently being approved, or are eligible to be filed, can be found in the Visa Bulletin. By checking the priority date listed on the petition receipt notice (usually similar to the receipt date of the petition), you can see whether the date being processed is before or after the petition's priority date. If the processing date is after the priority date, the priority date is considered to be current and ready to be used. Waiting too long after a priority date is current can have serious consequences, including termination of the petition.
Family Petitions, Adjustment of Status and Consular Processing
The family petition is a necessary step to becoming a resident, but it's not the only part of the process. Many people in the United States will want to apply for Adjustment of Status, the process of changing status to that of a permanent resident. Not everyone is eligible for that process, however, even if they can file the petition. Other people, especially those outside of the United States, will be consular processing. That process means going to a US Embassy or Consulate for a visa interview, and, if approved, an immigrant visa. After entering on a one-use immigrant visa, the person becomes a lawful permanent resident and pays USCIS to get their green card.
Frequent Questions About Family Petitions
Why Can't I Adjust Status in the United States
It's important to speak with an experienced attorney to review eligibility for adjustment of status. Not everyone qualifies for the process. First, most people must have entered after being "inspected and admitted" or who were given "parole." This can disqualify many people who entered unlawfully. There are some exceptions for people who were included in a petition filed before April 30, 2001, or who are eligible to be "paroled" now. This often occurs with family of US Military Personnel.
In addition, there are other eligibility requirements. Some people cannot adjust status if they ever had any period of unlawful presence or ever worked without authorization. Others can adjust even if they did, but it's important to review this question with an experienced attorney to discover problems before submitting an application.
If I overstayed my status or entered without status, can I leave to attend an interview abroad?
Many people have have either overstayed their status or entered without any status will receive a bar when they leave the United States. Sometimes people are unaware that this is going to happen and they become stuck outside the United States. At the same time, some people qualify for a waiver that can be requested in the United States, which, if approved, will allow them to return even if they had overstayed. These are complicated questions that should be reviewed before filing any paperwork.
Can a US Citizen include children or step-children as derivatives on a family petition?
No, when a US Citizen files a petition for a spouse, no derivatives are permitted. That's because the spouse is considered an "immediate relative" under immigration law, which allows no derivative applicants. As a result, the citizen must file separate petitions for a spouse and all children. Many people become confused because they list their children on the form I-130, but this does not mean that they will be able to come based on that petition.