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A Primer for Family-Based Immigration

A Primer for Family-Based Immigration

Los Angeles Family-Based Immigration Lawyers

Ever since Donald Trump ran for presidency on the issue of building a wall between Mexico and the United States, family-based immigration has been in the news. Over the past few weeks, the U.S. government has been at a standstill because a wall-funded budget cannot be passed. So more than ever before, it is important to understand the essentials of family immigration if you or your family members intend to immigrate to America.

What exactly is family immigration?

Family immigration is immigration by a foreign individual related by blood or marriage to an American. Though informal for years, the process of family immigration was formalized in 1965 with the passage of the Immigration and Nationality Act, known commonly as the INA. Under the Act, sponsorship comes from a family member who is (a) an American citizen, or (b) a legal permanent resident (LPR), i.e., someone with a green card. More U.S. Visas are issued to family members than any other category, often leading to so-called “chain migration.”

How does “chain migration” work.

With the controversy over the wall, the concept of “chain migration” has been in the news. It’s not a legal phrase defined in the INA, but it is well understood to reference an immigration phenomenon whereby relatives in the same family sponsor each other into the host country in a type of daisy-chain whereby one family member links to the next ad infinitum. By forces resisting immigration, chain migration is sometimes singled out as a primary cause of excess immigration.

Who is eligible for family visa?

Individuals eligible for a family-based visa fall into one of two very broad categories: “immediate family” and those with “family preferences” The category is important as the former receive a much greater preference than the later, and anyone outside these categories does not qualify for family-based immigration.

Under the INA, “immediate family” includes the following:

  1. The husbands and wives of American citizens,
  2. The natural children of American citizens,
  3. Children by American citizens (whether here or abroad), and
  4. The adult parents of American citizens over twenty-one.

Those qualifying under the “family-preferences” category are certain extended family members that include:

  1. The unmarried children (no age limit) of American citizens, as well as their husbands, wives, and children,
  2. The spouses, minor children, and unmarried-children-over-21 of Legal Permanent Residents,
  3. The married children of American citizens, their spouses and minor children, and
  4. The siblings of American citizens, their spouses and minor children.

As you might have ascertained, a line is drawn on the scope of extended family. In-laws, grandparents, aunts, uncles, and cousins and beyond do not qualify within the family-preference category. Put another way, these people do not qualify for family visas through an American sponsor.

Is there a legal limit to the number of family members an American citizen or LPR can properly sponsor?

Theoretically, there is no limit to the number of qualified family members an American citizen or LPR can sponsor into America. Though the average number is between three and four, the number could be more or less. However, given the perceived immigration crisis, it is possible that sponsoring an extraordinarily large number of relatives might raise a red flag and bring about great scrutiny to the application process.

How many family visas can America issue each year?

Depending on classification, Congress has placed partial limits on the number of people who can immigrate to America each year. Since 1990 the total number of family-preference visas issued by the INA cannot exceed 480,000 (after including immediate relatives). However, since theoretically all the slots might be used by immediate family members, the law allocates at least 226,000 visa slots to family-preference applicants.

Historically, immediate family have made up most family immigrant applicants. In recent years, nearly 70% of all family immigrants have been immediate relatives (spouses and children) and nearly 50% of all immigrants from all categories (family, work, etcetera) have been immediate relatives of family members. Brothers and sisters of American citizens only make up about 6% of immigrants.

Notwithstanding the foregoing, there is a 7% limit per-country -- meaning that no more than 7% of all family immigration can come from any one country. When that 7% per-country cap is reached, applicants must wait in line until next year or find another route in.

What are the individual qualifications and requirements for family-based visas?

The list of requirements to qualify for a family-based visa can be boiled down to a relatively short list. While exceptions exist to many of these requirements, the principal rules and considerations are as follows:

Sponsor: There must a sponsor and the sponsor must be an adult relative currently residing in the United States who is either an American citizen or LPR.

Petition: The sponsor must file a petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign immigrant. This petition must demonstrate through certain approved documents (a) the validity of the family relationship claimed, and (b) minimum annual income or earnings. In addition to the earnings statement, the sponsor must sign a sword affidavit promising to be financially accountable for the family applicant.

Character and Background Check: Today more than ever before, every foreign applicant is subjected to a thorough background check that screens for criminal history, terrorist affiliation, national security issues, disease or illness, and a host of other legally-adverse elements.

Financial Support: Anyone applying for a green card must demonstrate sufficient financial resources or income to satisfy the USCIS that he or she will not become a ward of the state and fall on public assistance or welfare, thus imposing an undue cost on the U.S. treasury. If this cannot be proven to the satisfaction of the reviewer, the application will be denied from the outset.

National Visa Center (NVC): If the USCIS approves the sponsor’s petition, the petition is forwarded to the NVC for further processing. The NVC then directs the foreign applicant to prepare the required forms, submit the necessary documents, and pay the required fees.

Interview: Once all the paperwork and fees are in order, a U.S. Embassy official or Consulate representative will bring the foreign applicant in for a personal interview. The general purpose of the interview is to fill in any missing information, show identification, do biometrics, and make sure the applicant meets all requirements consistent with the material submitted.

Medical Examination: Before a visa is issued, the applicant must submit to medical examination performed by a federally-approved physician and obtain any listed vaccinations.

Once all the above is accomplished, the application will be submitted for consideration or rejection.

How long before a family-based visa is accepted or rejected?

The length of the wait depends entirely on the applicant’s classification and resident country. Immediate relatives (husbands, wives, children) usually receive their green cards within months of all the criteria being met. But depending on the closeness of other family applicant, the wait can be years (or even decades).

Today, unfortunately, the backlogs are massive due to the high influx of total immigration applicants and the corresponding per-country limits. For example, of the nearly five million family-preference applicants last year, about four million landed on the waiting list. This is especially harsh for family from high-immigration countries like Mexico, the Philippines, China, and India.

Indeed, the USCIS is just now reviewing the applications of brothers and sisters that were submitted well over a decade ago. This logjam can be researched for potential strategies by going to a variety of immigration forums that exist on the web; but don’t be expecting to find any easy loopholes or ways around it. Filing now and getting in line is the only sure solution, assuming all the criteria is met.

What are the advantages of being approved for a family visa?

The principal advantage is that the foreign applicant is allowed to legally live and work in America. But once here, the real work at integration begins. Learning the language (English of course is the primary language), becoming a productive resident, finding gainful employment, and/or starting a viable business are all crucial components to stability and the ultimate grant of citizenship.

Support structure is also central to the transition. As former first lady Hilary Clinton said, “it takes a village.” The sponsor and other resident family members, the ethnic community tied to your sponsor and original country of departure, and local community groups – all aid the new immigrant in learning and understanding the nuances of the vast and rich country once described as the melting pot of the world. But it doesn’t stop there.

As a new immigrant to America, the immigrant family is encouraged to become robustly involved in the local, regional and national U.S. economy. Investing capital, borrowing money to start businesses, opening bank accounts, taking out credit, and applying manpower and resources -- are all viewed favorably. The lawful, productive family immigrant is someone America wants to keep. And there is reason to be optimistic.

In the last two decades, the number of new businesses started by immigrants has skyrocketed. This has infused capital, goods, products and services into the economic mainstream. And this is good for America, because many of the imported skills, knowledge and capabilities arrived with the immigrant, not at the cost of the American taxpayer. Immigrants fill the jobs that existing Americans cannot do or do not want to do. This has always been the case, the price paid for entering any new country.

In this same regard, it is important for immigrant families to stick together. Brothers, sisters, children and parents are all urged to work together and support each other. Offering childcare, education, the rearing of children – all help free other immigrant family members to work and contribute to vast American economic structure.

Do individuals with family visas succeed in America?

It’s a process, but the answer is yes, and for many, a resounding yes. As expected, at first family immigrants without advanced educational degrees and specialized skills can struggle. They enter the economy at the lowest pay scale as they learn the language and acquire in-demand aptitude, skills, and talents. But while initial earnings are low, for many this changes quite quickly. As proficiency improves, so do earnings, benefits, and opportunities. Credit is enhanced and available capital increases. Achievement breeds success, and in the end, family immigrants generally contribute greatly to the success of America.

How many family immigrants enter America each year and how well educated are they?

On average one million foreign immigrants enter America each year. About half come in as immediate family immigrants and another twenty to 25% arrive through one of the family-preference categories. Of all those who enter as family immigrants, about half have college degrees (a vast improvement over immigration in the twentieth century, where college graduates were a small minority). As part of this same trend toward better educated family immigrants, fewer and fewer enter without high school degrees. The higher the educational degree the better, as this both improves your chances of being approved and increases your chances at success once your family visa has been issued.

Conclusion

Family immigration has never been as challenging as it is today. Getting the paperwork right, crossing all the t’s and dotting all the i’s, and showing financial capability – have never been more important. With months and even years at stake in the application process, be sure to consult qualified immigration counsel before you begin the process -- or, if going alone, study all the requirements as carefully as you can. Getting it right has never been more important to becoming an American.