Immediate Relatives of US Citizens/Lawful Permanent Residents

Unmarried children of US citizens are under first (1^st) preference category under the family-based immigration.  Married children of US citizens fall under a separate category and have a numerical limitation or quota per year. Their preference category is third (3^rd) preference category.  The numeral limitation or quota is 23,400, plus any numbers not required by first and second preferences.

 A sponsoring US citizen of 21 years of age can also petition for his/her brothers and sisters. The preference category is fourth (4^th) preference category of family-based category. This visa category has 65,000 annual visas available, plus any visas not used by the other three preference categories. The siblings must be children of the same parent, as defined by immigration rules. Immediate family members, i.e., wife and children, can also immigrate with the brother or sister in this category.

 Immediate relatives of permanent residents also qualify for the petition approval but are subject to numerical limitations or a quota for the issuance of immigrant visas. Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents have a numerical limitation or quota of 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers.  It is further divided into the following sub categories:

A. Spouses and Children (under age 21): 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit. The preference category is 2A.

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.  The preference category is 2B.

Spouses

A person who marries a US citizen or a permanent resident is eligible for permanent residence based on this marriage, so long as the marriage is legally entered into, and not for the purpose of getting around the immigration laws. The marriage must have followed the formalities of the place where the marriage occurred and both parties must have been free to marry, and all prior divorces must have been legal. The marriage must still legally exist - the parties cannot be separated or divorced, but they can be separated, so long as there is no formal legal separation agreement.

Upon the marriage with green card, a spouse is issued permanent residency is given on a conditional basis for a period of two years. This means that the spouse of the US citizen has all the rights of a permanent resident, but that status may be terminated if within two years of the spouse gaining permanent residency, the marriage is terminated for any reason, or the parties are legally separated, or the marriage is found to be a sham.  The US citizen and the spouse must then file another joint petition within ninety days of the second anniversary of two year period to remove the conditional status. If joint petition is not filed, or cannot be filed, then the alien spouse can lose the permanent resident status absent showing of certain other criteria.  For example, the alien spouse might be able to get permanent residency upon showing of good-faith marriage, physical or mental cruelty, etc

Spouses and Minor Children of Deceased US Citizens

The spouse of a deceased US citizen may also qualify as an immediate relative, if they were legally married to the US citizen at the time of their death, if it has been less than two years since the death of the US citizen spouse, and if the spouse of the deceased is still unmarried at the time they file the petition for permanent residency. The Forum to be used for this application is different than the general application for spouses of US citizens. The Form to be used is Form I-360.  The unmarried minor children of the alien spouse may also be included in this

Children

Children of US Citizens or permanent residents who are unmarried and under the age of 21 are eligible to immigrate. US citizens can file for unmarried as well as married children. Their category would differ depending upon the marital status. However, permanent residents can only file for unmarried children.

The children born in wedlock to US Citizen parents, children born out of wedlock to US Citizen mothers, and children born out of wedlock to US are also included.  Citizen fathers may petition if the child was legitimated before the child was eighteen years of age and the child is in the legal custody of the citizen-father. The citizen-father may also petition for his out of wedlock child if he has or has had a real parent child relationship with the child that can be documented. Adopted children also qualify, provided that they were adopted prior to their sixteenth birthday and certain procedural requirements are met. Stepchildren may qualify also if the relationship was established before the child's eighteenth birthday. Special rules apply to orphans.

Parents

If the US citizen sponsor is over 21 years of age, they may petition for their parents to immigrate as immediate relatives. The existence of a parent/child relationship is judged by the same requirements as when determining whether a child of a US Citizen would qualify.

Family Members of Immediate Relatives

Family members of the immediate relatives can only immigrate if they qualify as immediate relatives of the US Citizen, in their own right. However, once the immediate relative gets their permanent residency status, they may turn around and petition for their immediate family members.

Basic Requirements to Qualify under Family-based Immigrant Visa

In order to determine who is eligible for these preference categories, the INS has created complicated rules to determine whether or not there is a qualifying family relationship.

The definitions of "spouse" and "child" are key in deciding whether an alien qualifies as immediate family, for the purposes of immigration. See the glossary for definitions.

Who is a "Spouse" according to the INS?
There are three requirements: (1) the marriage must have been valid at the time it was performed, (2) the marriage must still be in existence, and (3) the marriage must not have been entered into for the purposes of gaining permanent residence for the alien.

The Marriage was Valid at the Time Performed

In order for the marriage to be valid at the time it was performed, the parties to the marriage have to be legally able to marry, all prior divorces must have been valid and the marriage ceremony must be recognized as legal in the place where it was performed. Common law marriages are not recognized unless they are legal in the place where the parties to the marriage live or used to live. Only some marriages that are performed according to local custom and do not have a civil marriage license are valid for immigration purposes. Divorces that are performed according to local custom can also be problematic.

The Marriage Must Still be in Existence

The couple may not have either legally separated nor should have they legally terminated the marriage, however, they may be separated or no longer living together, depending on the other circumstances regarding the marriage.

The Marriage must not have been entered into for gaining Immigration benefits. 
The INS will look closely at marriages when the couple has not known each other very long, the couple had only seen each other a few times before they were married, the couple either never lived together or they no longer live together, or when the couple married only after the alien became subject to investigation or removal proceedings. If proceedings have already started, a petition cannot be granted for the alien unless the alien has resided outside the US for two years after the marriage, or the marriage is determined to be a good faith marriage. The INS will also look closely at cases where the couple come from very different backgrounds or have no common language, or if the petition is filed by a permanent resident who gained that status through a prior marriage.

Who is a "Child" according to the INS?

1.  A child born in Wedlock. A child born in wedlock qualifies for immigration benefits based upon their relationship to either parent. So long as they are unmarried and under 21 years old, they qualify as "children" for immigration purposes.

2.  A child born Out of Wedlock

A child born out of wedlock qualifies for immigration benefits based on their relationship with their mother. If the child is under 21 and unmarried, they qualify as the child of the mother. A child born out of wedlock can qualify for immigration benefits based on their relationship to their natural father if a legitimate parent-child relationship is clearly established, or the father has legitimated the child before the child turned 18, and the child was in the father's legal custody at the time.

3.  A Stepchild

A stepchild qualifies for immigration benefits on the basis of a relationship with a stepparent if the relationship with the stepparent was formed before the child's eighteenth birthday. The natural parent relationship must also be documented in such a case.

4.  Adopted Children

In order to qualify for immigration benefits, Adopted children must have been adopted before their 16th birthdays. The adoptive parents must have had legal custody for at least two years (either before or after the adoption) and the child must reside with the adoptive parents for at least two years (either before or after the adoption). Adoptions outside the US where legal papers are available should not be problematic. The adopted child, however, cannot confer benefits on their natural parents or natural siblings. The natural parent-child relationship can be the basis for immigration benefits only if no immigration benefits were gained through the adoption, the adoption was legally terminated, the parent-child relationship once existed, as it is defined by the INS, and the natural relationship is legally reestablished.

Derivative Definitions - Parent, Son or Daughter, Brother or Sister

A "parent" is the parent of a "child" or someone who was a "child" according to the definition, when they were unmarried or under 21 years of age.
A "son or daughter" is someone who was a "child" according to the definition, when they were unmarried and under 21 years of age.
A "brother or sister" is someone who is or was a "child" of the same parent as the US citizen or permanent resident sponsor. 

Application Procedure

In order to apply for family-based permanent resident status, the US citizen or permanent resident sponsor must file a Petition to Classify Status of Alien Relative, INS Form I-130,  for Issuance of Immigrant Visa, along with supporting documents to show that the sponsor is either a US Citizen or a Lawful Permanent Resident and proof of the relationship between the sponsor and the alien.

Widows/Widowers and Self-Petitioning Spouses that have been battered or subject to extreme cruelty at the hands of their spouses have to file a Petition for Amerasian, Widow(er), or Special Immigrant, INS Form I-360..