Immigration News

By Patricia Barbee

Last month in this newsletter, we concentrated on explaining exactly which family members are considered to be “immediate relatives” to immigration officials. As we discussed, immediate relatives of United States citizens will always have visas available to them without the long wait time associated with the immigration process. This means that husbands, wives, unmarried children under the age of 21 and parents of U.S. citizens — all considered “immediate” relatives — will be able to immigrate as soon as the paperwork filed on their behalves is approved.

But what about those family members who don’t fit the “immediate relative” definition described above, such as the brother or sister of a U.S. citizen, or the wife or child of a Lawful Permanent Resident? These family members and others are assigned to what is known as the Preference System, and must wait months or even years for a visa to become available to them, depending upon their particular category.

Visa availability is updated each month in a bulletin issued by the U.S. Department of State, and there is a separate bulletin for family-based preference and employment-based preference. We will concentrate on family-based preference categories in this article. Here is a link to the bulletin: http://www.uscis.gov/portal/site/uscis/searchusa/?locale=en&affiliate=82601b2ec&vgnextoid=d6f8c08346bc2310VgnVCM10000025e6a00aRCRD&query=visa+bulletin

The preference categories are broken down into the following five groups:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents

A. (F2A) Spouses and Children of Permanent Residents

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents

Third: (F3) Married Sons and Daughters of U.S. Citizens

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens

Whether or not a visa is available to a preference family member is determined by his or her priority date. The priority date is the date on which his or her family member filed the I-130 petition that got that beneficiary a spot in line; it can be found on the top left corner of the I-130 receipt or approval notice. Preference beneficiaries of I-130s cannot take the next step and apply for a visa (which is what ultimately gets them the “green card,” Permanent Resident status) until visas are available in their category, so it is important to watch the bulletin every month to see what progress has been made in a particular category.

Though a particular category may appear to be years away from being current, there is always hope that current dates will suddenly shoot forward in time. The visa bulletin does not move like a regular calendar; categories can move forward or backward months or even years between bulletins. It is also important to watch the bulletin and apply as soon as one’s category is current for another reason. Those unmarried children of Lawful Permanent Residents (LPR) who have “aged out” and turned 21 since their LPR parent applied for them may still be considered “children” for immigration purposes thanks to a provision in the law called the Child Status Protection Act (CSPA). Those benefiting from the CSPA must seek to acquire their visa within one year of the date it became available, or risk losing their place in line.

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum for family-based preference visas of 226,000 worldwide, and Section 202 of the INA limits the per-country number of visas allotted to 7 percent of that total. This means that annually there are 25,620 visas available to family members in preference categories. Depending upon the demand for preference category visas, a visa may be available to a family member with a particular priority date when he or she applies for that visa, but may have “retrogressed” by the time of that family member’s visa interview. In such cases, the family member must wait in line all over again, until the category “catches up” with his or her priority date again.

Once a visa is available, a “current” beneficiary must take the next step to ensure that the window of opportunity doesn’t close before they’ve gotten a chance to climb through. If the beneficiary is a candidate for consular processing in his or her country of origin, the National Visa Center will send a letter to the petitioner informing them that it is now time to begin the next stage of the process. (Note: this is one important reason to keep your address up to date with U.S.C.I.S.!)

If the current beneficiary is eligible to adjust status in the United States, he or she will submit the application for Lawful Permanent Resident Status to an address specified by U.S.C.I.S. to handle petitions for the region of the United States where that person lives. Unlike consular processing, though, there is no timely reminder from U.S.C.I.S. informing the petitioner or beneficiary that it’s time to move forward, so it’s especially important for those planning to adjust status stateside to be aware of the visa bulletin each month.

As we discussed in last month’s newsletter, time passes whether we have filed petitions for our family members or not. Do not let a seemingly endless wait in a particular preference category stop you from filing for those family members to whom they apply. Your petition for them could benefit them sooner rather than later, especially if there is reform to existing immigration law. Those already in line when the law changes may be in a position to benefit in ways those without petitions will not.

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