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Family Based Immigration Basics

In order to immigrate to the United States, the majority of immigrants come through two basic routes: work and family. Each avenue to the US involves complex and often changing laws that impact the timing of filings, the dates of arrival and requirements upon entering the United States. The immigrant communities in the United States, and particularly in North Carolina, has been built upon immigrant using both of these routes for settling in the United States. This article will provide a general background on how to help a family member immigrate to the United States.

The first and most important concept of family-based immigration is deciding what particular preference category into which the beneficiary of an application falls. Congress has created a limited number of visas for individuals in different categories and therefore finding your preference category is very important. The highest category (called Immediate Relatives), which has an unlimited number of available visas, goes to spouses, parents and children of United States citizen. Unlike other preference categories, these individuals have no wait period, aside for normal processing and administrative delays, and are immediately eligible to come into the United States with visas. Spouses, in particular, have many different avenues of entering the United States, many of which are designed to help get husbands and wives united quickly. Visas for children of United States citizens are available to all biological children under the age of 21, stepchildren and adopted children.

If an overseas beneficiary is not a spouse, parent or child of a United States citizen, he/she must fall into one of five preference categories: Category 1 (Unmarried Sons and Daughters of US Citizens); Category 2A (Spouses and Children of Lawful Permanent Residents); Category 2B (Unmarried Sons and Daughters of Lawful Permanent Residents); Category 3 (Married Sons and Daughters of US Citizens), or; Category 4 (Brothers and Sisters of Adult US Citizens). Depending on the relationship that the petitioner (individual signing and filing the paperwork) has with the beneficiary (individual looking to obtain a visa), upon filing the petition by the petitioner, the beneficiary will be assigned a given Preference Category.

Once a petition has been filed, a beneficiary acquires a "Priority Date." A priority date signals when a beneficiary is considered to be standing in a Preference Category line and will indicate when a beneficiary is eligible to receive an immigrant visa. Since Congress intentionally limits the number of visas available for Preference Category beneficiaries, each of these categories has a waiting list for visas. The waiting list is also known as the Visa Bulletin and is updated on a monthly basis by the Department of State ("DOS"). For family-based cases, India typically process as quickly as most of the other countries in the world. Each month, DOS will indicate what priority dates are currently able to apply for a visa to come to the United States. Once a beneficiary's priority date becomes current, meaning that the date on which an application was filed matches that which is indicated on the Visa Bulletin, the beneficiary will be called for an interview by the US Consulate for visa issuance. A beneficiary cannot obtain a visa until the priority date is current.

A common problem that arises during the wait for a current priority date is the change of relationships that may occur over time. For example, should a US citizen father apply for his unmarried son, and the son later marry, the son's preference category would change from an initial 1st Preference Category to a 3rd Preference Category, which would move him from a faster line to a slower line. Similarly, if spouses divorce or petitioners pass away, the underlying petition could be put into jeopardy. Additionally, with a real prospect of immigration reform pending with the Congress, some Congressional members have advocated for the elimination of the 4th Preference category (brothers and sisters of US citizens).

While family petitions can raise a host of different issues for a potential applicant, this avenue of immigration has been the backbone of the United States for over 200 years. Navigating the process is often challenging, but with the right amount of awareness and information, you can successfully reunite an entire family in the United States through family-based immigration.

For any assistance with family-based immigration, feel free to contact Robert Brown LLC.

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