Under U.S. immigration laws, U.S. citizens and Legal Permanent Residents (LPRs) (green card holders) can apply for permanent residence for certain family members. Whether the Petitioner is a U.S. citizen or legal resident determines the different types of family-based petitions available, and the type of relationship and the family-member’s nationality determines the waiting period to obtain the permanent visa.

Caroline Ostrom, Minneapolis immigration attorney, assists families in the Twin Cities and worldwide who are seeking to petition for family members to gain legal permanent residence (LPR) (green card) status in the U.S. We encourage you to contact us if you need legal advice regarding eligibility and the application process.

Types of Family-Based Petitions

U.S. Citizens

A U.S. Citizen can petition for the following family members, who are considered Immediate Relatives, and there is no waiting for an immigrant visa to be available:

  • Spouse
  • Parents
  • Unmarried Children under 21
  • Unmarried Stepchildren under 21, if the marriage that created the stepchild relationship occurred before the child turned 18.

As long as the I-130 Petition was filed prior to the immediate relative child turning 21, the child remains an immediate relative under the Child Status Protection Act (CSPA). The waiting period involved for Immediate Relatives is the standard processing time for the petitions and applications.

U.S. Citizens can also petition for the following family-members, but there are waiting periods for a permanent visa to become available:

  • Children 21 and older
  • Married children
  • Siblings.

Legal Permanent Residents (Green Card Holders)

Legal Permanent Residents can petition for the following family members:

  • Spouse
  • Children under 21
  • Unmarried children 21 and older.

All petitions by Legal Permanent Residents are subject to waiting periods for immigrant visas to be available. Of particular note is that Legal Permanent Residents are not allowed to petition for married children. If a petition is begun for the child of a Legal Permanent Resident and the child then marries, the petition is no longer valid. Legal Permanent Residents are also not allowed to petition for parents or siblings. If interested in petitioning for a married child, parent, or sibling, please visit our US citizenship page for information on becoming a citizen first.

Some dependent children who turn 21 while the I-130 petition is pending have some limited protection of “aging out” under the Child Status Protection Act (CSPA) and are able to be approved for a green card even after they turn 21. Our office can help you determine if this is applicable for your dependents and discuss alternate options if it is not applicable.

The Visa Bulletin

Except for Immediate Relatives of U.S. Citizens (outlined above), all other family-based immigrant visa petitions are subject to limits established by Congress and updated each month by the Department of State in a document called the Visa Bulletin. In the Visa Bulletin, the world is divided into 5 categories – India, China (mainland), Mexico, the Philippines, and All Other Countries.

A U.S. Citizen or Legal Permanent Resident can file the Petition, the I-130 for Alien Relative, with U.S. Citizenship and Immigration Services, but the family member will not be allowed to change status within the U.S. or enter the U.S. in Legal Permanent Resident Status until a visa is available in their category and country of nationality. The date that the I-130 Petition is filed is the Priority Date given to the case, to obtain a place in the line on the Visa Bulletin. When the family member’s Priority Date is current, they can then apply to Adjust Status or Consular Process.

Adjustment of Status v. Consular Processing

There are two different ways for a qualifying family member to gain permanent resident status based on an approved I-130 Petition: 1) Filing an I-485 Adjustment of Status Application with USCIS; or 2) Consular Processing. For Adjustment of Status, the family member must be present in the U.S. at the time of filing the application and eligible to file within the U.S. For Consular Processing, the family member completes the application through the National Visa Center and the appropriate U.S. Consulate abroad. Which type of process is available or preferable depends on the applicant’s circumstances and immigration history.

The Form I-864 Affidavit of Support

At the Adjustment of Status or Consular Processing stage, the U.S. Citizen or Legal Permanent Resident must file a Form I-864, Affidavit of Support. By signing the Affidavit of Support, the Petitioner attests to support the family member at 125% above the poverty line. This obligation lasts until the family member applying for legal permanent resident status either: 1) becomes a U.S. citizen, 2) pays into Social Security for 40 quarters (i.e., 10 years); 3) ceases to be a permanent resident and departs the U.S.; or 4) dies. Notably, if the Petitioner is applying for a spouse, the Affidavit of Support requirement survives divorce.

If the Petitioner does not meet the income requirement of the Form I-864 through salary and assets (please see I-864P on USCIS’s website for the most up-to-date income requirements), the application will need a Joint Sponsor to succeed. The Joint Sponsor can be anyone who is either a U.S. Citizen or Legal Permanent Resident, who meets the minimum income requirements necessary to be a sponsor. The same obligations that apply to the Petitioner apply to the Joint Sponsor as well.

How Our Minneapolis Immigration Lawyer Can Help

We enjoy working with couples and families to determine the best way forward for family members to change status in the U.S. to Legal Permanent Residence or enter the U.S. in such status, as appropriate. We have vast experience preparing successful petitions, representing clients at marriage-based interviews at USCIS, and navigating the Consular Processing system. We also review each case to see if there are any impediments to obtaining permanent resident status, such as prior immigration violations or criminal matters, and advise if a Waiver may be needed and available.

Based in Minneapolis, our immigration team works with couples and families in the Twin Cities and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your immigration matter.