Immediate Relatives of U.S. Citizens
Persons who qualify as immediate relatives of U.S. citizens are so highly preferred as candidates for immigration that, unlike most other candidates, no numerical limitation is placed on the number of immediate relatives of citizens who may become permanent residents in any one year. The following aliens can qualify as immediate relatives of U.S. citizens:
- Spouses of U.S. citizens
- Children of U.S. citizens (provided child is unmarried and under the age of 21 years)
- Parents of U.S. citizens (provided citizen is 21 years of age or older)
Spouses of U.S. citizens
A person who marries a citizen can qualify for immigration in this category. The marriage must not be a “sham,” of course-that is, one entered into in order to obtain an immigration benefit. The marriage must be legally entered into that is, both parties were free to marry, all prior divorces were legal, and the marriage formalities themselves are recognized as legal in the jurisdiction where the marriage occurred. The marriage must still legally exist-the parties cannot be divorced or legally separated. But the marriage need not be viable even if the parties are separated, if they have not entered into a legal separation agreement or gotten divorced they still have a valid relationship for immigration purposes.
The spouse of a citizen whose marriage was created within two years prior to being granted permanent residence is granted residence on a conditional basis. He or she is a full permanent resident in all respects-eligibility for employment, ability to travel freely in and out of the United States, accumulation of time toward compliance with residence and physical presence requirements for naturalization as a U.S. citizen-but that residence is subject to termination within two years after it is granted if the marriage has terminated by divorce or annulment during that period, or the marriage turns out to be sham.
- Spouses of deceased citizens qualify as immediate relatives for whom immigration may he sought under some circumstances.
- In order to qualify, the alien must have been the spouse of the deceased citizen for at least two years and must not have been legally separated at the time of the citizen’s death.
- The alien spouse must file an immediate relative immigrant visa petition within two years after the date of death and must still be unmarried at that time.
- Alien spouses seeking residence on this basis must use a different form than other family-sponsored immigrants.
- The unmarried minor children of the alien spouse may be included in the petition as well.
Children of U.S. citizens
Children of U.S. citizens are also eligible to immigrate. Note that “child” is strictly defined in the immigration law. The citizen’s child must be unmarried and under the age of 21 years.
- Children born in wedlock automatically qualify, and may be petitioned by either citizen-parent.
- Children born out of wedlock to citizen-mothers also qualify.
- A citizen-father may petition for his child born out of wedlock only if the child was legitimated prior to the age of 18 and the child is in the “legal custody” of the citizen-father, or the citizen-father has or had a bona fide parent child relationship with the child.
- Adopted children may also qualify, but only if the adoption was finalized prior to the child’s l6th birthday and certain procedural requirements with regard to the adoption have occurred.
- Stepchildren may qualify if the step relationship was established before the child’s l8th birthday.
Parents of U.S. citizens
Parents of U.S. citizens are eligible to immigrate as immediate relatives, but only if the citizen is 21 years of age or older. The citizen must be able to qualify as a child of the parent according to the rules just outlined, except of course that the citizen must be over the age of 21 and can be married. To determine whether a parent qualifies for immigration, then, it is essential to look at the parent-child relationship in the same way as you would if you were determining whether a child would qualify.
Special issues regarding immediate relatives
There are several important points to keep concerning immediate relatives:
- Family members of the immediate relative cannot immigrate unless each of them also qualifies as an immediate relative. Example: A U.S. citizen marries a foreign national who has a 19-year old child. The foreign national can immigrate as an immediate relative, but the child does not qualify as a child of the citizen, since the step relationship did not exist before the child’s l8th birthday, and the child is too old to qualify through adoption. The child cannot immigrate as an immediate relative of a citizen. Once the foreign national becomes a permanent resident, however, the child may qualify as a son or daughter of a resident.
- Qualifying as an immediate relative of a citizen has several advantages, but one disadvantage. Since an unlimited number of such aliens can immigrate each year, there is never a waiting list for visas. Thus, if such aliens are already in the U.S., and they meet all the other requirements for adjustment of status they can always apply for adjustment of status.
- Because the “immediate relatives” of U.S. citizens (spouses, minor children, Parents) are not subject to an annual cap on entry as are all other family-sponsored immigrants, an immigrant visa is considered to be immediately available to these individuals. In reality, however, due to USCIS and consular processing delays, it may still take up to a year for these family members who are outside of the country to enter the U.S. Because they are presumed to be “intending immigrants,” however, they are not eligible to receive a non-immigrant visa to visit their petitioning U.S. citizen relative during the pendency of the process.
WANI & ASSOCIATES, P.C Attorneys and Counselors at Law provide a wide variety of immigration services in the states of Maryland and Virginia as well as District of Columbia. Call now at: (703) 556-6626