The Immigration and Nationality Act (INA) allows lawful permanent residents and citizens of the United States to file a petition for certain individuals to travel to and remain living in the United States as lawful permanent residents of the United States. However, only permanent residents and citizens of the United States are allowed to petition for those certain individuals.
Citizens of the United States
Citizens of the United States are able to petition for the following class of individuals:
Fiance;
Spouse;
Children of your spouse who are unmarried and under the age of twenty one (21);
Unmarried children under the age of twenty one (21);
Married sons and daughters;
Sons and daughters over the age of twenty one (21);
Parents, if you are over the age of twenty one (21);
Siblings, if you are over the age of twenty one (21).
“Immediate relatives” of citizens of the United States do not have to wait in line for a visa to become available in order to travel to the United States. “Immediate relatives” are (1) spouses, (2) unmarried children under the age of twenty-one (21), and (3) parents of citizens of the United States. However, all other individuals must wait for a visa to become available before they can travel to the United States.
The wait time depends on the preference category of the individual that you are petitioning for and the visa bulletin.
Lawful Permanent Residents of the United States
Lawful permanent residents of the United States can petition for the following class of individuals:
Spouse;
Unmarried children under the age of twenty one (21);
Unmarried sons and daughters over the age of twenty one (21).
There are no “immediate relatives” of lawful permanent residents of the United States. This means that there will be a wait time for anyone that is petitioned by a lawful permanent resident of the United States. The wait time depends on the preference category of the individual that you are petitioning for and the visa bulletin.
Preference Categories
If you are not considered an “immediate relative” of a citizen of the United States you will fall into one of the preference categories listed below. You will have a longer wait time the further down on the categories you fall. For example, someone who falls in the first preference category will have a shorter wait time than someone who falls into the second preference category. You can determine your wait time by determining what preference category you are in then checking the visa bulletin.
You will fall into the first preference category if you are an unmarried son or daughter of a citizen of the United States and you are over the age of twenty-one (21).
You will fall into the second preference category if you are (1) the spouse of a lawful remanent resident of the United States; (2) the unmarried child of a lawful permanent resident of the United States and you are under the age of twenty-one (21); or (3) the unmarried son or daughter of a lawful permanent resident of the United States and you are over the age of twenty-one (21).
You will fall into the third preference category if you are the married son or daughter of a citizen of the United States and you are over the age of twenty-one (21).
You will fall into the fourth preference category if you are the sibling of a citizen of the United States who is over the age of twenty-one (21).
Adjustment of Status
Adjustment of status is the process by which individuals can remain in the United States while their petitions are being processed by the United States Citizenship and Immigration Services (USCIS). It is important to note that adjustment of status is only available to individuals that are residing in the United States at the time their petition is filed with USCIS. Generally speaking, you will be able to adjust status if you legally entered the United States. However, you will have to go through the process of consular processing if you entered the United States without being admitted or paroled (illegally).
Consular Processing
Consular processing is required for individuals that are not residing in the United States at the time the petition is filed with USCIS and individuals who have entered the United States without being admitted or paroled (illegally).
Individuals that reside outside of the United States will have to wait in their country until the entire process is completed and they are approved to enter the United States by the consulate in their country.
Individuals who entered the United States without being admitted or paroled (illegally) and reside in the United States will have to return to their country for their consular interview. However, you will not leave the United States and return to your country for the interview until USCIS has approved your departure from the United States. Leaving the United States without that approval can result in you triggering the 3-year or 10-year bar from returning to the United States.
It is important to note that if you have entered the United States without being admitted or paroles (illegally) you will be subject to an additional step in obtaining lawful permanent resident status. You will have to file form I-601A and that form will need to be approved. This can be a very complicated process and it is highly recommended that you seek the assistance of an immigration lawyer.