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Family/Marriage Green Card/Residency Petitions and Estimated Wait Periods (April 2014)

by Desmond P. FitzGerald

Dear friends,

One of the most common ways in which immigrants become US residents/Green Card holders is through a Marriage/Family Immigration Petition (form I-130). Within this group, there are two main categories:

  • Relatives of U.S. Citizens
  • Relatives of US Legal Permanent Residents

The following newsletter will discuss the specific relatives that are included in these categories and the estimated length of time that it takes for a visa to be available for different types of relatives (spouses, parents, children, and US citizen brothers and sisters). After a family based immigrant petition (I-130) is approved, there is usually a period of wait time before a visa becomes available and the individual can become a US legal permanent resident, unless the petition qualifies as an “immediate relative” petition. This wait period is generally different for each type of relative or family relationship.

Once a visa becomes available (when the “priority date becomes current”), the relative is eligible to apply for adjustment of status (if the relative is in the US and eligible), or for consular processing (if the relative is outside the US or not eligible for adjustment of status). This is the last step in the family based residence process, however certain relatives may be eligible to obtain work authorization and travel authorization before their I-130 is approved (i.e. “immediate relatives”—spouses, parents and unmarried children under 21 of US citizens, if they entered with inspection—visa or parole or qualifies for 245i benefits ).

If you are in the New England area and need help with filing a marriage Green Card petition or for any other immediate relative, please call our office to make an appointment (617-523-6320, ext. 0).

Please forward this information to anyone you think may find it useful.

1. For what family members can US Citizens apply for a Green Card/Residency and what are the estimated wait periods to obtain their Green Card?

US citizens may file family based immigration petitions on behalf of the following family members:

  • Spouse: 6-12 months wait period (however, work permit and travel authorization is granted within 30 – 90 days from filing for the authorizations if eligible for adjustment of status)
  • Parent: 8-12 months wait period (however, work permit and travel authorization is granted within 30 – 90 days from filing for work authorization for the authorizations if eligible for adjustment of status)
  • Unmarried children under 21 years of age (including step children): 6-12 months wait period (however, work permit and travel authorization is granted within 30 – 90 days from filing for work authorization for the authorizations if eligible for adjustment of status). Children under 18 years old at the time the Legal Permanent Resident status is granted may be eligible for automatic citizenship.
  • Children over 21 years of age (including step children): 7-8 years wait period
  • Married children (including step children): 10-12 years wait period
  • Siblings (brothers and sisters): 12-13 years wait period

**The estimated wait times are based on our experience and the US Visa Bulletin. They are subject to change depending on the location and volume of cases handled by a particular U.S. Immigration Service center. Residency/Green Card Petitions for immigrants from China, India, Mexico and the Philippines generally take longer than the estimated times above (see Visa Bulletin for those estimates).

2. For what family members can US Legal Permanent Residents apply for a Green Card/Residency and what are the estimated wait periods to obtain their Green Card?

US Legal Permanent Residents may file family based immigration petitions on behalf of the following family members:

  • Spouse: 7 months to 2 years wait period
  • Unmarried child under 21 (including step children): 7 months to 2 years wait period
  • Unmarried child over 21 (including step children): 8-9 years wait period

**The estimated wait times are based on our experience and the US Visa Bulletin. They are subject to change depending on the location and volume of cases handled by a particular U.S. Immigration Service center. Residency/Green Card Petitions for immigrants from China, India, Mexico and the Philippines generally take longer than the estimated times above (see Visa Bulletin for those estimates).

3. If a person is present in the US without permission (entered illegally or overstayed a visa) and is married to a US citizen, can they file for US legal permanent residency/adjustment of status?

If a person was admitted to the US with a visa (even if the visa has expired or was not valid) or with a grant of parole (advanced parole—I-131 travel authorization petition, or humanitarian parole), or is eligible for 245(i) benefits, then they may be eligible to adjust status in the U.S. If the person entered without inspection (without a visa or parole), and they are not 245(i) eligible, then they may apply for an I-601A waiver (pardon for inadmissibility), after the I-130 (family immigration petition) is approved, which can be processed inside the US. If the I-601A waiver is approved, the individual must complete processing the residency at the consulate (known as consular processing).

Note: If the I If the individual is married to a US resident, he/she is not eligible to apply for an I-601A waiver, but may be eligible for an I-601 waiver which needs to be processed outside the US in its entirety.

4. What is an I-601 waiver?

If someone is inadmissible for having entered without inspection or parole (advanced parole—I-131 travel authorization petition, or humanitarian parole), and is not 245(i) eligible, or if they entered with false documents (i.e. a visa or passport belonging to someone else or obtained improperly), or if someone has committed a criminal offense listed in Section 212(a) of the Immigration and Nationality Act, then the individual may be eligible to apply for an I-601 waiver (or pardon of inadmissibility). An I-601 waiver requires that you demonstrate that a qualifying relative (parent or spouse of a US citizen or US legal permanent resident) will suffer an extreme hardship if the person is not allowed to obtain Legal Permanent Resident status.

5. Who qualifies as a stepchild for immigration purposes?

For a stepchild to qualify as a child under the immigration law, the marriage that created the step-parent/child relationship must have occurred before the child was 18 years of age. If the step-child is under 21 years of age and not married, the child is eligible to apply for residency immediately upon approval of the I-130 petition, as an “immediate relative”

This is an important benefit to consider as it does not depend upon the immigration status of the natural parent. Many immigrants believe that they have to wait until they obtain legal status before applying for immigration benefits to get a benefit for their children. However, this is not the case. For example, the natural parent may be unlawfully present in the U.S. and not eligible for any immigration benefit directly, nevertheless, his or her children may be eligible for residency based upon the step-child/parent relationship. This is a great opportunity to unify the family, for any parent who is separated from their minor child and who is married to a U.S. citizen or a Legal Permanent Resident.

For more answers to Frequently Asked Questions about Family Immigration and other US immigration processes please click on the appropriate link provided.

Sincerely,

Desmond P. FitzGerald and
The FitzGerald & Company team

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