One of the most common paths for a noncitizen to obtain a green card is through a petition filed by a qualifying family member. A qualifying family member is a family member that is either a United States citizen or a legal permanent resident (also known as a “green card holder”) that is allowed under immigration law to petition for certain family members to become legal permanent residents of the United States.
Green Card Through Family
Requirements & Eligibility
Eligibility for a green card is primarily determined by whether the noncitizen has a qualifying petitioning family member that can file for the green card process on behalf of the noncitizen.
Qualifying Petitioning Family Members
Qualifying petitioning family members include United States citizens, who can petition for a spouse, unmarried children under 21 years of age, married or unmarried sons or daughters 21 years of age or older, or siblings.
Qualifying petitioning family members also include legal permanent residents, who can petition for a spouse, unmarried children under 21 years of age, and unmarried sons or daughters 21 years of age or older.
These petitioning family members are further allocated into two categories: immediate family members and preference family members. A detailed discussion breaking down these two categories, their subcategories (including the different waiting periods involved for each category) is available by clicking here.
All family-based green card cases require the filing of immigration form I-130, Petition for Alien Relative, which requires evidence of the petitioning family member’s status and evidence proving the relationship between family members. After the I-130 petition is approved, there are two potential pathways the green card process can take.
Adjustment of Status
If the beneficiary of the green card petition meets certain eligibility requirements established by immigration law, it is possible that this beneficiary can proceed down the path of the “adjustment of status” process, which means that this beneficiary can go through the entire green card application process within the United States. A detailed discussion of the Adjustment of Status Process, including the eligibility criteria, can be found by clicking here.
If a beneficiary does not qualify for the adjustment of status process, or does not live in the United States, the beneficiary will go through consular processing, where the beneficiary eventually returns to the country of origin (if they are not already living there) to be interviewed at an assigned United States consular post by a consular officer. The interview is to assist the officer in determining whether the beneficiary meets all eligibility requirements for and deserves approval of legal permanent resident status. A detailed discussion of consular processing, including potential issues that may need to be addressed to successfully complete the process, can be found by clicking here.
How long does the visa last for?
The green card or legal permanent resident status will exist for as long as the legal permanent resident is alive or becomes a United States citizen. A discussion explaining the process in becoming a United States citizen can be found by clicking here. The only other way that a legal permanent resident can lose status is if the resident violates a law that exposes the resident to being placed in removal proceedings, where an Immigration Judge can decide to terminate the resident’s status and order the resident expelled or removed from the United States. Expiration of the green card does not terminate status, but it is advisable to maintain a current, unexpired green card in order to travel outside the United States and to be able to prove legal status in the United States for employment or state benefits like a driver’s license.
Conditional Permanent Status
This status is based on a marriage to a United States citizen, where the duration of the marriage was for less than two years from the date of approval of the green card. This status maintains all the legal rights and benefits of a normal 10 year green card except that the conditional green card expires in 2 years. Additionally, the renewal process is more complicated because it involves a process called the “removal of conditions” process, where form I-751 must be filed within 90 days of the 2 year expiration of the conditional green card, and the application must include the same type of evidence filed with the initial I-130 proving that the marriage between the couple was entered in good faith. Keep in mind that a divorce does not necessarily jeopardize the removal of conditions process. In the event of a divorce, the conditional resident can still remove conditions and obtain legal permanent resident status by providing a copy of the state divorce order and also submitting evidence demonstrating that the marriage was entered in good faith. A conditional resident can also remove conditions by proving that the marriage was entered in good faith, but the spouse died or that the conditional resident suffered physical abuse or extreme cruelty by the petitioning spouse. Finally, a conditional resident can also remove conditions if the resident proves that termination of resident status would result in extreme hardship to the resident. This last exception does not require proving that the marriage was entered in good faith. Keep in mind that if the conditional resident fails to file form I-751, the conditional green card will be terminated, and the noncitizen will be placed in removal proceedings. Fortunately, if a noncitizen is in removal proceedings, the noncitizen can still attempt to remove conditions before an Immigration Judge.
How are family members treated?
A beneficiary of a Family Preference Petition can include a spouse or unmarried children under 21 years of age in the process to who can obtain Legal Permanent Resident status at the same time as the primary Beneficiary or after the Primary Beneficiary obtains Legal Permanent Status.
A beneficiary of an Immediate Family Member Petition cannot include a spouse or any child.
Other considerations or related articles?
Disqualifying past conduct making a beneficiary inadmissible
It is important to understand that simply meeting the eligibility requirements for a green card does not mean that a beneficiary will automatically be granted the green card. Assuming that a beneficiary has a qualifying petitioning family member, it is still possible that the beneficiary can be denied if the beneficiary participated in past conduct that violates immigration or criminal law and disqualifies the individual from obtaining legal permanent resident status. A beneficiary that is disqualified from applying for legal permanent resident status is identified under immigration law as a beneficiary that is “inadmissible,” or not able to be admitted into the United States.
In situations where a beneficiary could be potentially inadmissible, it is important to understand that while there is certain conduct that permanently disqualifies a beneficiary from applying for legal permanent resident status, there is also conduct that is not necessarily fatal to the process. The strategy in cases with potential inadmissibility issues is to work on determining whether the conduct does, in fact, make the beneficiary inadmissible, and, if they are inadmissible, whether there is a waiver available to potentially waive or forgive the conduct, thus making the beneficiary again admissible into the United States. Be aware, however, that, especially in consular processing cases, even if a waiver is approved, an individual can still be denied legal permanent resident status simply because the officer reviewing the application decides that the beneficiary, although now admissible, does not deserve the rights and privileges of a green card holder, including the privilege to live in the United States.
A detailed discussion about the issue of inadmissibility, including the effects of criminal convictions and their potential waivers, can be reviewed in the following series of posts:
- What makes a noncitizen inadmissible or deportable?
- What criminal convictions create immigration consequences making a noncitizen inadmissible or deportable? What is a “crime of moral turpitude,” or “CIMT”?
- What are the immigration consequences associated with an aggravated felony?
- What are the immigration consequences associated with drug convictions?
- What are the immigration consequences associated with crimes of domestic violence?
- What are the immigration consequences associated with firearms offenses?
A discussion addressing the effects of all other kinds of immigration violations and the availability of potential waivers can be reviewed by clicking here.
You can find out more about the Visa Bulletin by clicking here.
Attempting to determine whether a green card beneficiary will qualify for adjustment of status or consular processing, whether there is past conduct that could make the green card beneficiary inadmissible, and whether there is a waiver available to forgive the past disqualifying conduct is not an easy and straightforward process. As a result, we highly recommend that you schedule a consultation with one of our experienced immigration attorneys to help you assess the process you may qualify for and to help you navigate the complex immigration process to help you reach your goal of obtaining a green card.
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