family-based
green cards

Family-Based Green Card Process

Family-based green card petitions are some of the most common ways to obtain permanent resident status, but the process can depend on what the relationship is between the petitioner (the US Citizen or Permanent Resident sponsor) and the beneficiary (the foreign national who will be applying for a green card).

Who can file a family-based green card petition?

Family-based petitions generally fall into two groups: “Immediate Relatives” of US Citizens or one of the relationships listed under the “Preference Categories”.

Immediate Relatives include the following:

Spouse of a US Citizen
Parent of a US Citizen (the US Citizen must be 21 or older)
Unmarried child (under 21) of a US Citizen

Preference Categories include the following:

F-1: Unmarried Sons and Daughters (21 or older) of US Citizens
F-2A: Spouses and Children (under 21) of Permanent Residents
F-2B: Unmarried Sons and Daughters (21 or older) of Permanent Residents
F-3: Married Sons and Daughters of US Citizens
F-4: Brothers and Sisters of Adult US Citizens

Limited exceptions exist for cases where:

the spouse, child, or parent of a US Citizen (or in some cases of a Permanent Resident) has been battered and abused;
the US Citizen or Permanent Resident family member has legally adopted the foreign national prior to a certain age;
the person is a widow(er) of a US Citizen; or
the person is a spouse, parent, or child of a member of the armed forces who died in combat.

Family relationships which generally are NOT a basis for filing green card petitions:

Married Sons and Daughters of Permanent Residents
Brothers and Sisters of Permanent Residents
Grandparents of US Citizens or Permanent Residents
Aunts, Uncles, or Cousins of US Citizens or Permanent Residents

What's the green card process like? And what's the difference between Adjustment of Status and Consular Processing?

The green card process for family-based petitions always starts with the filing of Form I-130 so that US Citizenship and Immigration Services (USCIS) can confirm that the relationship that forms the basis for the green card exists and is valid. From there, the process continues in one of two ways: Adjustment of Status or Consular Processing.

Adjustment of Status

Adjustment of Status is the process of applying for a green card while physically present in the United States. But not everyone in every situation will be eligible to adjust their status to permanent residence!

Generally, to be eligible to adjust their status a person must be in a currently valid immigration status and not have violated the terms of their status (including by working without authorization). Additionally, people who arrived in the US under the Visa Waiver Program/ESTA are ineligible to adjust. A major exception to these adjustment rules is for those people who are filing for adjustment of status because they are Immediate Relatives of US Citizens.

Once the Adjustment of Status application is filed with US Citizenship and Immigration Services, a person cannot leave the United States without an advance parole travel document, otherwise they will be at risk of abandoning their application!

Consular Processing

Consular Processing, on the other hand, is the process of applying for a green card while physically outside the United States. Rather than being filed with USCIS, the green card application is filed with the Department of State, and the interview occurs at the designated US Embassy or Consulate in the foreign country. If the application is granted, the immigrant visa is issued and the person has 6 months to travel to the United States, at which time they will be admitted as a lawful permanent resident.

What's the Visa Bulletin? And why does it matter?

Under the immigration laws, a certain maximum number of visas is assigned to each of the Preference Categories, and only that number of immigrant visas (green cards) can be issued per fiscal year. The way of tracking whether or not there are visas still available, or the approximate wait time before they become available, is by using the “Visa Bulletin” (which can be found here). Keep in mind that this is only for the Preference Categories … because there is no limit on visas for Immediate Relatives, the Visa Bulletin does not apply to Immediate Relative applications!

The Visa Bulletin is issued monthly by the Department of State and shows whether or not immigrant visas (green cards) are available for each of the preference categories. The dates listed on the charts in the Visa Bulletin correspond to the Priority Date, which is the date the I-130 was filed (you can find the Priority Date on the Receipt Notice).

If there are more applications in a specific category than there are green cards available, a “backlog” occurs and waiting times increase. In those situations, the Visa Bulletin will show the Priority Date for those who can start submitting their green card applications.

For example, if the chart shows 05/01/2010 as the Priority Date for a certain category, then anyone in that category who has a Priority Date on or before 05/01/2010 can submit their green card applications (through adjustment of status or consular processing).

If a certain category still has green cards that can be issued in that year, then the chart will show a “C” for that category meaning that it is “Current.”

What is Conditional Permanent Residence? And who does it apply to?

If your green card application is based on marriage to a US Citizen or Lawful Permanent Resident, and you have been married for 2 years or less at the time that your application is approved and green card issued, then you will be issued what's called "conditional permanent residence."

You can think of this almost like the probationary period that employers use when hiring someone before they give them all of the benefits available to employees. In the immigration context, USCIS has determined that the marriage is a valid one, but it wants to make extra sure of it, so it will issue permanent residence on a conditional basis. This conditional residence is generally issued for a period of 2 years. Within the 90-day period before the 2 years expire, you must file a petition to remove the conditions on your residence, which is filed jointly with your US Citizen/Permanent Resident spouse unless one of these exception applies:

the marriage was entered into good faith, but your spouse later died;
the marriage was entered into good faith, but later ended due to divorce or annulment;
the marriage was entered into good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse;
your conditional resident parent entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent's US Citizen/Permanent Resident spouse or by your conditional resident parent; or
the termination of your permanent status and removal from the US would result in extreme hardship.

If any of these exceptions apply, then your petition to remove conditions must also include an application to waive or excuse the joint filing requirement.