Immigrating to the United States Based on Family Status
| Publication year | 2011 |
| Pages | 45 |
| Citation | Vol. 40 No. 6 Pg. 45 |
2011, June, Pg. 45. Immigrating to the United States Based on Family Status
June 2011
Vol. 40, No. 6 [Page 45]
Immigration Law
Immigration Law articles are sponsoredby the CBA Immigration Law Section to present current issues and topics of interest to attorneys and judges on all aspects of immigration law.
Coordinating Editors
Lisa Battan, Boulder, of Lisa E. Battan, P.C.-(303) 444-8668, lisa.battan@battanlaw.com; David Kolko, Denver, of Kolko and Associates, P.C.-(303) 371-1822, dk@kolkoassociates.com
About the Author
David N. Simmons practices U.S. immigration and nationality law with the immigration law office of David N. Simmons, LLC-dnsimmons@davidnsimmons.com.
This article provides an overview of the development, current classification system, and procedures for immigrating to the United States based on a relationship with a family member already in this country.
Immigrant visas to the United States generally are divided between family-based and employment-based categories. This article focuses on the family-based immigrant visa process. For the sake of clarity and simplicity, the related non-immigrant processes used for fiance(e)s, spouses, and children are not discussed.
History
Congress established family unification as an important component of U.S. immigration law while drafting some of the first federal immigration statutes. Although it imposed a literacy requirement for new immigrants in the Immigration Act of 1917, Congress carved out a significant exemption in the interest of family unification. That exemption read:
As the regulation of immigration increased during the 20th century, so did the recognition of the need for family unification. In 1924, the wives and the children under age 18 of U.S. citizens were exempted from newly established national-origin quotasAny admissible alien, or any alien heretofore or hereafter legally admitted, or any citizen of the United States, may bring in or send for his father or grandfather over fifty-five years of age, his wife, his mother, his grandmother, or his unmarried or widowed daughter, if otherwise admissible, whether such relative can read or not; and such relative shall be permitted to enter.(fn1)
The first comprehensive family-based preference categories were established in 1952. These categories were revised in 1965, and again in 1990. by 2009, family-based immigration to the United States accounted for 747,413 immigrant admissions,(fn2) compared with 144,034 admissions for employment-based immigrants.(fn3)
Family-Based Immigrant Categories
The current Immigration and Nationality Act (INA) recognizes nine family-based categories. These categories include three immediate relative categories, which are not subject to annual quotas.(fn4) The remaining six categories are referred to as family preference categories.(fn5) Each family preference category has an annual limit on the number of visas issued.(fn6) Limits also apply to the number of immigrant visas available each year for individual countries.(fn7)
All nine of the categories normally require a "petitioner," who must be a U.S. citizen or a lawful permanent resident. However, in some limited cases, a widow/widower or a victim of domestic violence may file a self-petition.
U.S. citizens may petition for a spouse (immediate relative category),(fn8) unmarried children under 21 (immediate relative category),(fn9) unmarried adult sons and daughters (first preference category),(fn10) married adult sons and daughters (third preference category),(fn11) and siblings (fourth preference category).(fn12) In addition, U.S. citizens over age 21 can petition for their parents (immediate relative category).(fn13) Lawful permanent residents may petition only for a spouse and unmarried children under 21 (second preference "A" category)(fn14) and their unmarried adult sons or daughters (second preference "B" category).(fn15)
The spouse or child of an abusive citizen or resident may self-petition as a Violence Against Women Act (VAWA) self-petitioner.(fn16) This provision is designed to permit victims of domestic violence or extreme cruelty to obtain legal status without having to depend on a petition from the abusive relative. This is important because abusers have been known to use immigration status as a means of asserting control over their victims.
Definitions
The INA defines when a person is considered a child or a parent. These defined relationships are critical to understanding who can...
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