Frequently Asked Questions about Family Based Immigration

Can I Bring Derivatives?

For immediate relatives:

Immediate relatives who are the principal beneficiary of an I-130 cannot bring derivative beneficiaries. A separate I-130 petition must be filed for every single qualifying immediate relative.

For example, if a U.S. citizen child over the age of 21 is petitioning for his/her parent, the parent’s spouse or unmarried child may not immigrate as derivatives, because the parent is an immediate relative. In such a situation, the U.S. citizen must file a separate I-130 petition for the stepparent and sibling. If the stepparent or sibling does not qualify, or if timing would be faster, they will have to wait until the parent – the principal beneficiary – immigrates. Once that parent becomes a green card holder, he/she may file a petition for the spouse and child.

For family-based preference category visas:

A family member on whose behalf the I-130 petition is filed is considered the “principal beneficiary.” If he/she is being petitioned for in one of the preference categories and has minor, unmarried children or a spouse, those other family members also may qualify to immigrate as “derivative beneficiaries.” Derivative beneficiaries do not have separate Form I-130 petitions filed on their behalf. They may either accompany the principal beneficiary, meaning that they come within 6 months of the principal beneficiary’s admission, or “follow to join,” which means immigrating more than six months after the principal beneficiary. The spouse or child must have been acquired prior to the principal beneficiary’s admission as legal permanent resident.

How Long Is The Wait?

For immediate relatives:

There are no visa quotas and a visa is immediately available. If the immediate relative is in the U.S. and a one step petition is filed on his/her behalf, the entire process usually takes on average around six months. If the immediate relative is abroad, the entire process including consular processing, usually takes on average anywhere from nine to twelve months. These timelines are not definite, and subject to change at any time.

For family-based preference category visas:

The waiting periods applicable to each category vary depending on the category and the immigrant’s country of origin, and may change from month to month. For the most current list of the waiting times applicable to each category, visit the U.S. Department of State’s online visa bulletin at: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

In a one step process, what if the Beneficiary needs to travel overseas while waiting for the green card:

During the waiting period while USCIS processes the petition, the Beneficiary can apply for Advance Parole, which allows him/her to travel overseas and come back to the U.S. without affecting the green card application. At the Law Office of Alison Yew, the Advance Parole application is included when you hire us to do a one step petition for you.

Can the beneficiary work legally in the U.S.?

Yes. If the beneficiary is already in the U.S. and has applied for permanent residency, he/she can apply for Employment Authorization Document (EAD) at the same time. Usually, the EAD is approved sooner than the green card application, and the beneficiary will be able to start working legally as soon as he/she receives the EAD.

What are the requirements of the I-864 Affidavit of Support?

Unless an exception applies, the petitioner must sign and submit a Form I-864 affidavit of support, which represents the petitioner/sponsor’s promise to support the immigrant financially or pay back any government agencies from which the immigrant claims financial assistance.

In general, the sponsor must have enough income and/or assets to maintain the intending immigrant and the rest of his/her household at 125% of the Federal Poverty Guidelines. Always check the most current published guideline to determine whether your incomes meets the requirement. For the most current guideline, visit: https://www.uscis.gov/i-864p

If the petitioner’s income does not meet 125% of poverty level, he/she may provide evidence of assets that are readily available, and combining his/her total household income, fulfill the income eligibility requirements. The petitioner may also combine income from the intending immigrant, if that income will continue from the same source after immigration and if the intending immigrant is currently living at the same residence. If the intending immigrant is petitioner’s spouse, his/her income can be counted regardless of current residence, but it must continue from the same source after he/she becomes a lawful permanent resident.

Joint Sponsor:

If the petitioner’s income is not sufficient, one other option is to look for a joint sponsor. To be a joint sponsor, a person must be a U.S. citizen or permanent resident, 18 years of age or older, and must fulfill the domicile requirement, the affidavit requirement, and the income requirement. He/she does not need to be related to the petitioner or beneficiary. A joint sponsor must be able to meet the income requirements for all the persons he/she is sponsoring without combining resources with the petitioning sponsor or a second joint sponsor.

For marriage based green card petitions based on marriage less than two years old at time of granting immigrant status:

It is important to keep in mind that if the marriage is less than two years old at the time the immigrant status is granted, the foreign national spouse receives a conditional two-year green card, which will expire in two years. During the two years of conditional residency, the spouse will have all the rights of a permanent resident, including ability to work, travel, and count time toward naturalization’s residence requirement.

The petitioner and beneficiary must file a joint petition to remove conditions within 90 days of the two-year anniversary of the date the conditional green card was issued. Evidence of an ongoing good faith marriage must be submitted with the Form I-751, Petition to Remove Conditions on Residence. If petitioner and beneficiary cannot file jointly (for example, where the couple is divorced or petitioner has passed away), the conditional resident spouse may file a waiver of the joint filing requirement with evidence that the qualifying marriage was entered into in good faith.

What Happens if the Petitioner Passes Away:

Normally, death of the petitioner triggers automatic petition revocation. However, there are certain exceptions. If the U.S. citizen spouse dies, the noncitizen spouse may qualify for immigration benefits as a widow or widower. Other surviving family members may qualify for immigration benefits after the petitioner or principal beneficiary has died. The beneficiaries would have to establish that they were residing in the U.S. at the time of the death and are continuing to reside here. They would also need to obtain the assistance of a substitute sponsor.

In the case where the petitioner dies and the beneficiary cannot establish residency in the U.S., the beneficiary may request for humanitarian reinstatement if the I-130 was approved. Humanitarian reinstatement is granted on a discretionary basis. The following factors are considered:

  • Impact on family living in the U.S. (especially U.S. citizens and lawful permanent residents)
  • Beneficiary’s advanced age or health concerns
  • Beneficiary’s long residence in the U.S.
  • Absence of ties to the beneficiary’s country of origin
  • Other factors such as any undue delay by USCIS or the consulate in processing the petition or application

Things to Keep in Mind About Lawful Permanent Residence:

  • Lawful permanent residents are still subject to grounds of deportation and can be deported for commission of certain crimes
  • Lawful permanent resident status may be lost if considered abandoned