Permanent Residence for Immediate Relatives of U.S. Citizens

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The United States immigration laws encourage family unity by providing a way for immediate relatives of U.S. citizens to gain their permanent residency. Immediate relatives include spouses, unmarried children under the age of 21 and parents of U.S. citizens who are over the age of 21.

There are a couple of options for the foreign relatives depending on where they are: abroad or in the United States. One option involves applying for adjustment of status in the United States, another applying for an immigrant visa at a U.S. consulate abroad (“consular processing.”)

Option 1: The foreign relative is present in the U.S. after a legal entry. The process towards permanent residency is started by the U.S. citizen filing a Petition for Alien Relative, Form I-130, with the United States Citizenship and Immigration Services (“USCIS”). Form I-130 establishes the U.S. citizen’s familial relationship with the relative (“beneficiary”), and indicates their intention to help their relative immigrate to the United States.

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There is no waiting in line for immediate relatives to get their visas, so they can apply for their green cards immediately. In order to apply for a green card, the foreign relative has to file Application to Adjust Status, Form I-485, with USCIS. Form I-485 can either be filed at the same time as Form I-130, or at any time after. At the same time, the foreign relative can apply for employment authorization and advance parole document allowing them to travel abroad.

After filing their application for adjustment of status, the foreign relative cannot travel abroad unless they received the advance parole document from USCIS. It’s imperative that foreign nationals be aware of this rule and refrain from traveling abroad without prior authorization, as that would mean that they abandon their permanent residency application and have to start the whole process from scratch.

There are certain commitments that the U.S. citizen petitioner undertakes at the time when the foreign relative applies for a green card. The petitioner has to submit Form I-864, Affidavit of Support, which demonstrates that the petitioner has enough financial means to support the foreign relative and ensure that the foreign relative does not become dependent on state, federal or local public benefits. If at some point the foreign relative does receive some public benefits, the agency providing the benefits may demand the repayment of the costs from the petitioner.

Option 2: The foreign relative is outside of the U.S. This process also begins with filing of Form I-130, Petition for Alien Relative, with USCIS. After I-130 is approved, a visa number becomes immediately available to the beneficiary, and they can apply for an immigrant visa at a U.S. consulate of their residence country.

The process for consular processing is as follows. Upon approval of the I-130 petition, the case is forwarded to the Department of State’s National Visa Center (“NVC”), which then notifies the petitioner and beneficiary and issues a packet of forms and instructions. The beneficiary will need to complete some required documents, pay the appropriate fees, undergo a medical examination, and get a police clearance. As with adjustment of status, the petitioner is also required to submit Form I-864, Affidavit of Support.

After all the documents are processed, the beneficiary will receive a written notification from the U.S. consulate with an interview date. The interview is necessary so that the consulate verifies the content of the application and reviews medical, criminal and financial records to make sure that the beneficiary is admissible to the United States. Upon successful completion of the interview, the beneficiary will be issued an immigrant visa.

Unfortunately, there is no right to have an attorney present at the consular interview. If the beneficiary is denied a visa during consular processing, there is no appeal process. An advisory opinion can be requested through the Secretary of State at the U.S. Department of State in Washington D.C.; however, even if a favorable advisory opinion is issued, it is not binding on the consular officer. By contrast, the foreign national can appeal a USCIS decision on an adjustment of status application in the U.S.

It should be noted that the choice between adjustment of status and consular processing is not set in stone. It is possible to change the selection from adjustment of status to consular processing and vice versa.