One of the most common methods of immigration is sponsorship through a family member who is a US Citizen or Permanent Resident. While various types of family relationships qualify for sponsorship, the general rule is that the more distant the relationship the longer one may need to wait for the availability of a visa.
Qualifying relationships for family-based immigration fall under two categories:
- Immediate Relatives;
- Fiances / Fiancees; and
- Family-preference categories.
Immediate Relatives are defined in the Immigration and Nationality Act as:
- Spouses of US Citizens;
- Minor children (under the age of 21) of US Citizens; and
- Parents of US Citizens (where the US citizen must be at least 21 years old).
- Spouses (also, K-3 and K-4 visas)
For immigration purposes, a spouse is one from a marriage that is recognized in the country or state where it takes place. They do NOT, however, include:
- Same-sex marriages;
- Common-law marriages (few exceptions);
- Marriages where one or both parties are under-age;
- Marriages by proxy (unless consummated); and
- Marriages into which parties entered for immigration purposes.
They also include a widow/widower of a US citizen who was married to the US citizen for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, so long as the widow/widower files through the appropriate channels within 2 years after the citizen’s death and only until the date the spouse remarries.
Fiancés / Fiancées are also not recognized under this category but may apply for their own non-immigrant visas under the K1 category. It is worthy to note that getting married to a US Citizen may not necessarily expedite reunification or an immigration process, so if you are currently engaged and have not yet made definite arrangements for marriage, it is advisable that you explore your options in petitions for fiancés and petitions for spouses.
A petition by a US Citizen for a spouse may be completed by one of two methods:
- Consular processing or
- Adjustment of status.
For consular processing, the US citizen files for an intending-immigrant spouse who is residing OUTSIDE the United States. There are several steps to this procedure the last of which requires the immigrant spouse to attend an interview at the US consulate closest to the immigrant’s place of residence. During the processing period, the intending-immigrant spouse are likely to have difficulty acquiring a visitor visa or, for those who are visa exempt, to enter the United States altogether, as it will be difficult to show that the intending-immigrant does not have immigrant intent. In most cases, the US CIS will simply inform the intending-immigrant spouse that he/she is not allowed into the United States at all and must wait until the sponsorship process is completed.
Recently, new non-immigrant visa categories were created to allow the immigrant spouse and immigrant spouse’s children (unmarried children under 21) to enter the United States to await the approval of the I-130 petition by US CIS or the availability of an immigrant visa. These categories were assigned the designations of K-3 (spouse) and K-4 (child), and allow for subsequent application for Employment Authorization upon arrival to the United States. While the K-3 / K-4 processes have been in operations for several months (as of January 2002), it is still uncertain as to just how long the processing periods are and, as such, it is uncertain whether the K-3 and K-4 visas are overly beneficial for spousal applications which are estimated to be completed in less than 1 year.
For immigrant spouses who are already in the United States on a valid non-immigrant status (however, not all non-immigrant statuses allow a person to be sponsored for immigrant status—see section on TN visas), the US citizen may file for the immigrant spouse in the US while also filing for an adjustment of status (from non-immigrant to immigrant) at a local US CIS District Office. The processing time for this method of application will vary depending on the District Office at which the application is made and the final interview will take place at the office itself.
The purpose of the K-1 visa is to allow a fiancé(e) of a US citizen to enter the United States for the purpose of marrying the US citizen and to adjust his/her status while in the United States. It is often difficult for the fiancé(e) of a US citizen who are coming to US as visitors to demonstrate non-immigrant intent, so the K-1 allows the fiancé(e) to enter the United States to marry the US Citizen (3 months after entry) and then remain in the United States while his/her status is adjusted at the nearest US CIS District Office.
While the K-1 used to automatically allow the fiancé(e) to work in the United States, the practice of granting Employment Authorizations to K-1holders upon entry has recently been changed. The K-1 holder must now file an application for Employment Authorization (EA) after he/she has entered the United States. However, in many instances, the processing time for the EA may take longer than the 3 months – so the K-1 fiancé(e) and US Citizen may end up marrying before the EA is granted, in which case another application for an EA may need to be filed with the application for adjustment of status.
For Canadians, the K-1 process is generally quicker than spousal sponsorship by way of consular processing and may therefore prove to be the preferred method if reunification with the US Citizen is your first priority.
Other Family Preference Categories
US citizens can also petition for unmarried children OVER the age of 21, married children, siblings and as a widow/widower of a US citizen. Permanent Residents can petition for spouses and children only. Unlike the immediate relatives of US citizens, however, the beneficiaries of the other family-based preference categories are subject to availability and are restricted to annual visa limits (quotas).