About the Author

  

Nisha V. Fontaine

Attorney-at-Law

Serotte Reich Wilson, LLP

300 Delaware Avenue

Buffalo, New York 14202

Ph: 716-854-7525

Email: Nfontaine@srwlawyers.com

 

 

 

 

Family Preference Categories

Introduction

One of the two common pathways to obtaining lawful permanent resident status (i.e. a green card) in the United States is through the approval of a family-based immigrant petition (the other common pathway way is through an employment-based immigrant petition).  A family-based immigrant petition can be filed by a U.S. citizen or Lawful Permanent Resident for a foreign national (and their family, in certain circumstances), if the requisite familial relationship exists. 

The Immigration & Nationality Act divides different familial relationships into different family-based preference categories, based on whether the petitioning individual is a U.S. citizen or a Lawful Permanent Resident. Some family members will be subject to priority date backlogs and some will be able to be classified as Immediate Relatives.  

In order for the foreign national family member to obtain their green card, the first stage involves the U.S. citizen or a Lawful Permanent Resident filing an Form I-130 for their foreign national relative (see I-130 Immediate Relative and/or I-130).  After filing and subsequent approval of the family-based immigrant petition, and if/when their priority date is current (if applicable), the foreign national can apply for adjustment of status from within the United States or can pursue their lawful permanent resident status from outside the United States through Immigrant Visa Processing (IVP). 

Immediate Relatives

INA §203, defines the following group of individuals as Immediate Relatives under the INA. 

  • Husband or Wife of a U.S. Citizen;
  • Unmarried Child under age 21 of a U.S. Citizen;
  • Mother or Father of a adult[1] U.S. Citizen.

The biggest advantage of being classified as an immediate relative for U.S. immigration purposes is not being subject to preference categories and their accompanying priority date backlogs, since immigrant visas are always available under the immediate relative category. 

Another advantage is that if the foreign national family member is already in the U.S. and eligible for adjustment of status, the I-130 petition and the application to adjust status (Form I-485), can be filed concurrently. 

Family-Based Preference Categories

Under INA §203, the remaining familial relationships are accorded the following family-preference categories:

  • Unmarried Sons and Daughters of U.S. Citizens – First Preference Category (F-1)
    • Son and/or Daughter may be of any age
    • Son and/or Daughter may also bring their unmarried children under age 21
  • Spouses and Children, and Unmarried Sons and Daughters of Lawful Permanent Residents – Second Preference Category (F-2)
    • Spouses and Children (F-2A)
      • Children under this category must be unmarried and under age 2
    • Unmarried Sons and Daughters (F-2B)
      • Applicable to unmarried children age 21 or older
      • Son and/or Daughter may also bring their unmarried children under age 21
  • Married Sons and Daughters of U.S. Citizens – Third Preference Category (F-3)
    • Son and/or Daughter may be of any age
    • Son and/or Daughter may also bring their spouse
    • Son and/or Daughter may also bring their unmarried children under age 21
  • Brothers and Sisters of adult[2] U.S. Citizens - Fourth Preference Category (F-4)
    • Brother and/or Sister may be of any age
    • Brother and/or Sister may also bring their spouse
    • Brother and/or Sister may also bring their unmarried children under age 21

Definition of Child

The term “child” is defined under INA §101(b).  The term generally refers to an unmarried person under 21 years of age. However, whether a foreign national is to be considered a “child” under the INA is dependent upon a myriad of factors including whether the foreign national was born in or out of wedlock, whether a step-parent/step-child relationship existed prior to the foreign national reaching 18 years of age, whether the parent-child relationship exists due to adoption, etc. 

Additionally, a foreign national over the age of 21 may still meet the definition of “child” under the INA as a result of the Child Status Protection Act (CSPA) in certain circumstances. 

Priority Date Explanation

Priority Dates are a U.S. immigration concept assigned to those family-based immigrant petitions that are subject to preference categories.[3]  A foreign national’s priority date is the date the immigrant petition was properly filed with USCIS on the foreign national’s behalf by the U.S. citizen or Lawful Permanent Resident petitioner.  This date can be found on the Receipt Notice and/or subsequent Approval Notice issued by USCIS. 

If the foreign national has a priority date on or before the listed date in the Visa Bulletin issued by the U.S. Department of State, then the foreign national is currently eligible for an immigrant visa and may proceed to the second and final stage of the green card process either through adjustment of status or through Immigrant Visa Processing (IVP).  

Waiting for Priority Dates to become Current

Because the demand for immigrant visas frequently is higher than the supply for immigrant visas available, some foreign nationals with approved immigrant petitions must wait in line until their priority date becomes current.  Through the years, this has caused backlogs in several preference categories which can often result in a waiting period of several years.  Additionally, the priority dates sometimes retrogress and delay the process even further.

The length of time a foreign national must wait “in line” before receiving an immigrant visa or adjusting status depends on:

  • The demand for and supply of immigrant visa numbers (how many petitions are being filed)
  • The per country visa limitations (some countries are subject to special “lines” because of the demand stemming from those countries including: India, China, Mexico, Philippines)
  • The number of visas allocated for the applicable preference category (which preference category the foreign national belongs to)

Visa Bulletin Issued by U.S. Department of State

The U.S. Department of State publishes a monthly report of visa availability which is commonly referred to as the Visa Bulletin.  The Visa Bulletin provides serves as a guide for petitioners, beneficiaries, government agencies, and immigration law practitioners to know what priority dates are current and therefore who can proceed to the next step of the immigration process.  

Upgrading/Downgrading Family Preference Categories

Considering that it may take many years in some situations for a priority date to become current, there is a chance that the foreign national who previously qualified under a particular preference category is no longer eligible for the particular preference category, but may be eligible for another.  This is true for those preference categories which require the foreign national to be married/unmarried and impose age requirements, or if a lawful permanent resident petitioner becomes a U.S. citizen, or a petitioner passes away. 

As lives go on, while the priority date remains pending, a foreign national may upgrade or downgrade in family-preference categories by either automatically converting to another preference category, requesting that USCIS transfer them to another preference category, or they may sometimes no longer be eligible for a preference category. 


[1] For a U.S. citizen to petition for their mother and/or father, they must be age 21 or older.

[2] For a U.S. citizen to petition for their brother and/or sister, they must be age 21 or older.

[3] Those foreign nationals that are eligible as Immediate Relatives are not assigned priority dates since there is always an immigrant visa available for those foreign nationals.