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Immediate Relatives of U.S. Citizens
A non-citizen may immigrate to the United States as an immediate relative of a U.S. Citizen. In order to do so, the non-citizen must be the child, spouse, or parent of the U.S. Citizen. Significantly, there is no limit to the number of immediate relative that may immigrate to the United States. However, the number of immediate relatives that enter the United States in any given year, reduces the availability of visas for others who are not immediate relatives of U.S. Citizens.
Children
A “child” has a has specific definition under U.S. Immigration law. In short, a child is someone that is unmarried and under twenty one (21) years of age. Stepchildren and adopted qualify as “children” for immigration purposes.
Parents
A parent may seek admission to the United States as an immediate relative of a U.S. Citizen son or daughter. The U.S. Citizen son or daughter must be at least twenty one (21) years old. If a child is adopted by other parents, the child’s natural parents cannot become immediate relatives to that child. In other words, a child’s natural parents cannot immigrate to the United States through their child if that child has been adopted by other parents.
Spouses
The Immigration and Nationality Act defines spouse in negative terms, outlining who cannot be considered a spouse. For example, marriages adverse to public policy, such as polygamous marriages cannot establish the spousal relationship required for immigration purposes.
In order for a spouse to be considered an immediate relative of a U.S. Citizen, the couple must have a “valid and subsisting marriage” according to the Immigration and Nationality Act.
A sham marriage, although otherwise valid and subsisting, does not constitute a marriage that would establish a spousal relationship for the person seeking to immigrate to the United States.
The Immigration Marriage Fraud Amendments (IMFA) attempt to deter fraudulent marriages entered into solely for the purpose of obtaining an immigration benefit. Towards that end, the IMFA imposes a two year conditional residence on spouses and their children before conferring full legal permanent residence if the marriage was entered into two years before the non-citizen spouse obtains a legal status.
Somewhat related, a U.S. Citizen who marries a non-citizen while in removal proceedings cannot confer an immediate relative status to the non-citizen. An exception exists, however, if the couple can show that the marriage was not entered into to evade U.S. Immigration laws.
Immigrants Subject to Numerical Caps in Family Sponsored Preference Categories
There are four categories for family sponsored immigrants. The first preference category contains 23,400 visas for unmarried sons and daughters of U.S. Citizens. Sons and daughters that are over the age of twenty one fall into this category.
The second preference category contains 114,200 visas for spouses, children, and unmarried sons and daughters of lawful permanent residents. The visas in this category are divided into two sub categories. The first subcategory (A) contains 87,900 visas for spouses and children of legal permanent residents. The second subcategory (B) contains 26,300 visas for unmarried sons and daughters of legal permanent residents. The term “unmarried” refers to the immigrant’s status at the moment of immigration. In other words, past marriages are not taken into account in this preference category.
The third preference category contains 23,400 visas for married sons and daughters of U.S. citizens. Again, sons and daughters are those that are twenty years (21) of age or older.
The fourth preference category contains 65,000 visas for brothers and sisters of U.S. citizens. A brother or sister of a U.S. citizen is, among other things, a sibling with at least one parent in common with the U.S. citizen.