By Attorney Gotcher
Q: What is family based immigration?
A: The immigration laws of the United States provide for three principal avenues by which people abroad may apply to immigrate to the United States. These are the employment (“EB”)-based category, the family based category, and the diversity (“DV”) visa program. The family based category is initially broken down into two main categories: “immediate relatives” and “preference based” immigrants.
“Immediate relatives” are not subject to any quota restrictions. Within this category are spouses and children (unmarried and under the age of 21) of US citizens. Also included are the parents of US citizens, who are over the age of 21.
“Preference based” immigrants are further divided into several subcategories, and are allocated visas within the annual quota, as follows:
l First (“F1”): Unmarried sons and daughters of citizens: 23,400 plus any numbers not required for fourth preference.
l Second (“F2”): Spouses and children, and unmarried sons and daughters of permanent residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
l (“F2A”). Spouses and children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit.
l (“F2B”). Unmarried sons and daughters (21 years of age or older): 23 percent of the overall second preference limitation.
l Third (“F3”): Married sons and daughters of citizens: 23,400, plus any numbers not required by first and second preferences.
l Fourth (“F4”): Brothers and sisters of adult citizens: 65,000, plus any numbers not required by first three preferences.
Q: If I file a preference petition for a relative, who is subject to the quota, can they stay in the US until they immigrate?
A: No, they cannot. Even the approval of a preference petition does not act as permission to remain in the US. This process is entirely independent of a person’s nonimmigrant visa status and they must maintain their nonimmigrant visa status or risk deportation.