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In family immigration beneficiaries (persons seeking the green card or immigrant visa) are divided into immediate relatives and preference beneficiaries.

Immediate relatives are parents of a U.S. citizen child who is 21 years or older, spouses of U.S. citizens, unmarried children under 21 years of a U.S. citizen parent.

Preference relatives are unmarried sons or daughters over 21 years of a U.S. citizen or permanent resident parent; married sons or daughters of a U. S. citizen parent; brothers and sisters of a U. S. citizen; and unmarried children or spouses of a permanent resident.

The main difference between immediate relatives and preference relatives is, immediate relatives do not have to wait on a visa becoming available because visa are always available for immediate relatives whereas preference relatives have to wait on visas becoming available in their preference category.

Obtaining a green card or immigrant visa through a family member requires two steps.

A U.S. citizen is referred as a USC and a lawful permanent resident is referred to as LPR.

Step One:

The USC or LPR must file a petition with the United States Citizenship and Immigration Services (USCIS) and prove the claimed family relationship such as spouse, parent, child or sibling to the beneficiary.

Step Two:

Adjustment of Status

The next step is for the beneficiary to apply to adjust status in the United States, if eligible, to obtain a green card.

In adjustment of status cases the petition and adjustment of status application are usually filed concurrently but there are cases in which the petition is filed first and after it is approved the adjustment of status application is filed.

Adjustment of status is discretionary. This means the adjudicator can deny the application even though the person meets the basic eligibility requirements.

What Is Adjustment of Status?

Adjusting status in the United States means changing your status to become a permanent resident without leaving the United States.

The following persons can adjust status in the United States if they can show that:

1. They were inspected and admitted or paroled.

2. A visa is immediately available unless they are immediate relatives. Visas are always available for immediate relatives.

3. They never worked without employment authorization unless they are immediate relatives.

4. They are in valid immigration status unless they are immediate relatives.

5. They were not admitted as an alien crew member, an alien admitted in transit without a visa or admitted on a J visa unless exempted from the two years foreign residency requirement. Certain J visa holders may be eligible to apply for a waiver.

6. They were not admitted under the visa waiver program, unless they are an immediate relative.

7. If admitted on a K-1 visa, they are adjusting status based on a marriage to the K-1 petitioner.

8. They are not inadmissible, if inadmissible are entitled to a waiver of the ground of inadmissibility.

Sometimes if eligible they can adjust under INA § 245(i). In this case they have to pay a penalty fee of $1,000.00.

Eligibility Requirements for a Spouse of a USC or LPR to Adjust Status

The spouse of a U.S. citizen (or of an LPR if eligible) can apply to adjust status if:

• The marriage is valid under the laws of the state or country where it took place;

• The marriage is bona fide and not a fake or bogus marriage just for a green card. The petitioner must prove the bona fide of the marriage by a preponderance of the evidence. USCIS scrutinizes all marriages but those with red flags are subject to enhanced scrutiny.

• The spouse beneficiary is not inadmissible including medical grounds of inadmissibility. There are many grounds of inadmissibility. If inadmissible, is entitled to a waiver of the ground of inadmissibility.

• The spouse beneficiary is not likely to become a public charge;

• The spouse beneficiary was inspected and admitted or paroled, and

• The spouse beneficiary merits a favorable exercise of discretion.

Eligibility Requirements for Other Beneficiaries of USCs

Other beneficiaries can include parents and children of USCs.

• The petitioner must prove the claimed relationship by documentary evidence such as parent/child.

• The beneficiary is not inadmissible including medical grounds of inadmissibility. There are many grounds of inadmissibility. If inadmissible, is entitled to a waiver of the ground of inadmissibility.

• The beneficiary is not likely to become a public charge;

• The beneficiary was inspected and admitted or paroled,

• The beneficiary merits a favorable exercise of discretion.

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