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QUALIFYING FOR PERMANENT RESIDENCE BASED ON A FAMILY
RELATIONSHIP
The following are the family-based groups that have been
designated as eligible for permanent residence:
IMMEDIATE RELATIVES OF U.S. CITIZENS Persons who
qualify as immediate relatives of U.S. citizens are
preferred as candidates for immigration and no numerical
limitation is placed on the number who may become permanent
residents in any one year. The following three groups
qualify as immediate relatives of U.S. citizens:
- Spouses
The marriage must not be a “sham”- one entered into in
order to obtain an immigration benefit. The marriage
must be legally entered into, both parties were free to
marry, all prior divorces were legal, and the marriage
formalities are recognized as legal in the jurisdiction
where the marriage occurred. The marriage must still
legally exist (the parties cannot be divorced or legally
separated.)
The spouse of a citizen whose marriage was created
within two years prior to being granted permanent
residence is granted residence on a conditional basis.
Conditional residence is subject to termination within
two years after it is granted if the marriage has
terminated by divorce or annulment during that period,
or the marriage turns out to be a sham.
Spouses of deceased citizens qualify as immediate
relatives if they have been the spouse of the deceased
citizen for at least two years and were not legally
separated at the time of the citizen’s death. The
immediate relative immigrant visa petition must be filed
within two years after the date of death and the alien
must still be unmarried at that time. Unmarried minor
children of the alien spouse may be included in the
petition.
Battered spouses of citizens may file their own
immediate relative petitions. To qualify, the alien
spouse must be a person of “good moral character,” must
have entered the marriage in good faith, must have
resided in the United States with the citizen spouse,
and must have been battered or subjected to “extreme
cruelty” by the citizen spouse. Identical benefits are
available to battered children of a U.S. citizen.
- Children
To be a “Child,” the alien must be unmarried and under
the age of 21 years. Children born out of wedlock to
citizen-mothers also qualify. A citizen-father may
petition for his child born out of wedlock only if the
child was legitimated prior to the age of eighteen and
the child is in the “legal custody” of the
citizen-father, or the citizen-father has or had a bona
fide parent child relationship with the child. Adopted
children may quality if the adoption was finalized prior
to the child’s 16th birthday and certain procedural
requirements with regard to the adoption have occurred.
Stepchildren may qualify if the step relationship was
established before the child’s 18th birthday. Special
rules apply to foreign orphans adopted by U.S. Citizens.
- Parents
Parents of U.S. citizens are eligible only if the
petitioning citizen child is 21 years of age or older.
OTHER CLOSE FAMILY MEMBERS OF U.S. CITIZENS OR
PERMANENT RESIDENTS Other groups of family members
of citizens or permanent resident aliens can qualify to
immigrate to the United States, but are not considered
as “preferred” as immediate relatives of citizens. These
aliens are subject to a numerical quota limiting the
number of immigrant visas available each year. Since
only a limited number of visas are available, these
groups are divided into “preference” categories, ranking
them in the order in which they are preferred for
immigration. The higher the preference, the more quickly
a visa will be available. Immediate family members of
preference aliens (spouses and minor children) can
immigrate with them.
The following categories are the groups given this
preference:
- Unmarried Sons and Daughters of U.S. Citizens
This group does not qualify as immediate relatives
because the sons and daughters are 21 years of age
or older.
- Spouses and Unmarried Sons and Daughters of
Permanent Resident Aliens
This preference is divided into two groups:
preference 2A includes spouses and children of
permanent residents, and preference 2B unmarried
adult sons and daughters of permanent residents.
- Married Sons and Daughters of Citizens
This group does not qualify as immediate relatives
because the sons and daughters are married (and some
of them are also 21 years of age or older).
- Brothers and Sisters of U.S. Citizens
This citizen petitioner must be at least twenty-one
years old in order to file for his/her siblings.
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