Family Based Permanent Residence
& Fiancé (K-1) Petitions

Family Based Permanent Residence

The Basics

There are two basic categories of family sponsored immigrants:

1. Immediate Relatives, and
2. Preference Immigrants

IMMEDIATE RELATIVES

According to the Immigration and Naturalization Act, Section 201(b)(2)(A)(i), immediate relatives include:

A. Spouses of United States citizens
B. Minor (under 21) children of United States citizens
C. Parents of United States citizens, provided the citizen petitioner is at least 21 years old
D. Certain spouses of deceased United States citizens

FAMILY-SPONSORED PREFERENCES

According to the Immigration and Naturalization Act, Section 203(a), the preference categories are:

First: Unmarried Sons and Daughters of United States Citizens
Second: Spouses and Children, and Unmarried Sons and Daughters of U.S. Legal Permanent Residents
Third: Married Sons and Daughters of Citizens
Fourth: Brothers and Sisters of Adult Citizens

Allotment of Visas

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.
Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: 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:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

Fiancé (K-1) Petitions

U.S. citizens who intend to marry a foreign national in the United States may petition for a fiancé classification (K-1) for their fiancé. This option is normally faster than marrying outside the United States and waiting for the processing of an immigrant visa for your spouse. In order to apply for a K-1 fiancé visa, you must demonstrate that you:

Are legally free to marry and intend to marry within 90 days of your fiancé’s admission to the United States.
Except in limited circumstances, you must demonstrate that you have met each other in person within the two years immediately before filing the K-1 petition.

Fiancé status automatically expires after 90 days from the date the K-1 visa holder enters the United States and cannot be extended. Your fiancé must leave the United States at the end of the 90 days if you do not marry. Your fiancé may enter the United States only one time with a fiancé visa. If your fiancé leaves the country before you are married, your fiancé may not be allowed back into the United States without a new visa.
Children of your fiancé are also allowed to enter the U.S. at the same time and are given the K-2 visa classification.

Once married, both the K-1 fiancé and K-2 children (under 21) may apply for adjustment of status to obtain U.S. conditional permanent residence without having to leave the United States. There is an application to remove the conditions on the permanent residence that must be filed within a 3-month window prior to the second anniversary of the conditional green card issuance date.

K-1 Fiancé petitions are not available to U.S. legal permanent residents (green card holders) who must instead marry first and then petition for an immigrant visa on behalf of their spouse.

U.S. citizens who have already married overseas may be eligible to apply for a K-3 visa on behalf of their spouse which can allow them to enter the United States more quickly than remaining outside the country to process an immigrant visa. Once in the United States, the K-3 visa holder may apply immediately for adjustment of status to obtain their green card.

TO DISCUSS SPONSORING A FAMILY MEMBER OR FIANCÉ IN MORE DETAIL PLEASE SCHEDULE A CONSULTATION OR CONTACT ATTORNEY URBANSKI.

Family Based Permanent Residence
& Fiancé (K-1) Petitions