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Green Card Eligibility and Process: Family Petitions

U.S. Citizens and Lawful Permanent Residents may petition for certain family members to immigrate to the U.S. and obtain permanent residence. This is often referred to as a Green Card. In order to qualify, the intended immigrants must fulfill three criteria. This article will describe each of the three criteria and how the application process works.

Green Card Eligibility
Green Card Eligibility is met by showing that the intended immigrant is in one of the family categories covered under the Immigration and Nationality Act (INA). The INA establishes the following family-based categories:


  • Immediate Relatives – spouse or unmarried minor child (under the age of 21) of a U.S. Citizen; parents of a U.S. Citizen may also be included only if the U.S. Citizen Petitioner is already 21 years old

  • Family Preference 1 (F1) – unmarried adult son or daughter (over age 21) of U.S. Citizens

  • Family Preference 2A (F2A) – spouse and unmarried minor child (under the age of 21) of a Permanent Resident

  • Family Preference 2B (F2B) – unmarried adult sons or daughters of a Permanent Resident

  • Family Preference 3 (F3) – married adult sons or daughters of U.S. Citizens

  • Family Preference 4 (F4) – brothers or sisters of U.S. citizens

In addition to the Immediate Relatives and Family Preference classifications, current U.S. immigration law also allows foreign nationals to immigrate through special family categories, such as the K-1 fiancé(e) visa.

Visa Availability
Current U.S. laws limit the number of immigrant visas that may be issued each year in certain family categories. Individuals classified as Immediate Relatives are not subject to the annual numerical limitations for family members. Therefore, there is no limit to the immigrant visas (or green cards) that the U.S. Government may approve each year for Immediate Relatives.

However, the four Family Preference categories are subject to the numerical limit. If an immigrant visa is not immediately available for a particular category, the beneficiary’s case remains pending with the U.S. Government until an immigrant visa becomes available. Depending on the category and the beneficiary’s country of origin, the visa wait can be a few months or several years.

Immigrant Admissibility
Under current U.S. law, there are several factors that can have a negative impact on your case, including, but not limited to:


  • prior immigration law violations

  • false claims to U.S. Citizenship

  • prior attempts to obtain an immigration benefit through misrepresentation or fraud

  • certain health conditions

  • certain criminal convictions

  • security-related grounds

  • and the likelihood of the immigrant becoming a public charge, among others.

These factors are generally known as grounds of inadmissibility, because they usually prevent applicants from obtaining permanent residence or from being admitted into the U.S. Some, but not all, of the inadmissibility grounds may be resolved by obtaining a waiver of inadmissibility. Each type of inadmissibility ground has several variable factors, so a full case analysis must be conducted in order to properly assess whether the individual is subject to a ground of inadmissibility and, if so, whether a waiver is available.

Family Petition Green Card Application Process
Whether you are seeking a permanent residence through marriage to a U.S. Citizen or Permanent Resident, as an immediate relative or as a member of any of the four family preference categories, you will have to go through a multi-step application process through one or two U.S. Government agencies: the U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS) and the U.S. Department of State.

For K-1 fiancé(e) visas, the process begins with an I-129F Petition for Alien Fiancé(e) filed by the U.S. citizen petitioner with USCIS. If the I-129F Petition is approved by USCIS, the case is then forwarded to the U.S. Consulate in the beneficiary’s home country. The beneficiary must then submit the actual K-1 visa application with the U.S. Department of State and go through background checks, a medical examination and an in-person interview with the consular officer. If successful, the beneficiary will be issued the K-1 visa for travel to the U.S. Once admitted to the U.S. in K-1 status, the beneficiary has 90 days to marry the U.S. citizen petitioner and file for permanent residence with USCIS.

In the case of immediate relatives or preference categories, the case generally begins by filing an I-130 Petition for Alien Relative, also with USCIS.

The rest of the application process depends on several factors, including, but not limited to:


  • the beneficiary’s immigration history and status in the U.S. if already present in America

  • whether the beneficiary can be classified as an Immediate Relative or falls within a Family Preference category

  • whether the beneficiary is subject to any grounds of inadmissibility for which a waiver is available

It is very important to know what application type you qualify for, because filing the wrong application may have negative consequences. For instance, if you file an immigration application for which you do not qualify, your case will be denied and, depending on your circumstances, you may trigger removal (deportation) proceedings if you are already in the U.S.

Even if you do not trigger removal proceedings, filing the wrong application could still prove to be a waste of time and money. Each application process has various government filing fees that are usually non-refundable. In addition, each step in the application process may take several months or several years, so you would not want to waste time or money waiting for the wrong application to be processed.

Another factor to consider is that some immigration applications may provide temporary employment and travel authorization while the permanent residence case is pending. Therefore, it is important to know the full details of the application process that applies to your particular case, to find out if you are eligible for temporary immigration benefits while you wait for the green card case to be processed.

Our office can help you navigate the immigration maze. We provide clear and detailed guidance to our clients regarding the documents and evidence required in support of their case, and we provide legal representation before the government agencies involved in the immigration process. If you would like to consult with an immigration lawyer to determine your options, please contact Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittllp.com.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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