Family Based Preference Categories

U.S. citizens may sponsor their parents, spouses or children under age 21 for immigrant visas for permanent residence. This category is known as “immediate relatives,” and there is no limit on how many visas can be issued.

What are the Steps?

  • First, the U.S. citizen files a petition to establish the relationship
  • Then the foreign relative applies for permanent residence at either a U.S. Citizen and Immigration Service office (in the U.S.) or at an American consulate abroad

What are the Preference Categories?

Family-based petitioners who do not qualify as “immediate relatives” fall under a preference category system which is limited by statute to a certain number of persons each year. In recent years, the number of immigrants allowed under family sponsorship was 480,000 per year.
There is no cap on the number of visas allowed under the “immediate relative” category.  However, the number of immediate relatives is subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year.
If an applicant does not qualify as an immediate relative, they may apply under one of four categories ranked in order of preference. Since numerical caps apply to these categories, visa petitions are ranked chronologically based on a “first come-first serve basis.”   Because of the numerical cap, there is long waiting periods to obtain a visa in most of the family-based immigrant categories. The date the application is filled is called a priority date.
The type of visa category applicable to an intending immigrant in the four available areas of preference depends upon two factors:

  • Whether the person sponsoring the immigrant is a U.S. citizen or a lawful permanent resident and;
  • The closeness and dependency of the relationship between the immigrant and the United States relative.

Who is a United States Citizen?

Generally speaking, any person born in the United States has a claim to U.S. citizenship. Persons born in countries other than the U.S. may have a claim, under United States law, to U.S. nationality if either parent was born or naturalized in the U.S., or either parent was a U.S. citizen at the time of applicant’s birth. However, it is important to remember to confirm your citizenship with a consular office before filing a family based petition.  Moreover, you should wait until your visa petition has been approved before acting in reliance on it. All too often, an applicant will make final travel arrangements, dispose of  assets, or leave existing  jobs only to discover that their petition has been denied.

Non-Preference:  Immediate Relatives

Immediate Relatives may immigrate to the United States on a family based petition. This is the most attractive category since there is no limitation to the number of immigrants who may qualify under this category and, in most cases, visa numbers are immediately available for these individuals to apply for lawful permanent residence. Immediate Relatives include spouses, children and parents of U.S. citizens.  However, some additional definitions and clarifications are required:

  • Age of Citizen: A U.S. citizen must be at least 21 years of age in order to sponsor his or her parents.
  • “Child” Defined: Children are defined as natural-born (legitimate), adopted, step-children, or legitimated.
  • Widows and Widowers: A Widow or a widower of a U.S. citizen qualifies under this category so long as the person submits a petition within two years of death of their spouse and a remarriage has not occurred.
  • Petitioning Parents: In order for a parent to petition for a child, the child must be unmarried and under the age of 21 to qualify.
  • Petitioning Children: In order for a child to petition for their parent, the child must be at least 21 years of age.
  • Petitioning Spouses: If a couple has been married less than two years at the time the visa application is submitted to the USCIS, the immigrant will  be granted a two-year period of “conditional residence” status.
  • Condition Removal: To remove the conditions, a second application must then be submitted to the USCIS and the couple is required to attend a second interview to establish the validity of their marital relationship.
  • Validity of Marriage: The validity of the marriage is best established by demonstrating that the parties cohabitated, purchased assets jointly, and commingled income in joint accounts. It is important that the second application is submitted before expiration of the conditional status.
  • Death of citizen spouse/Divorce/Abuse:  The USCIS has special procedures for situations where a spouse dies, the parties divorce or domestic abuse occurs which exposes the immigrant extreme emotional and/or physical abuse at the hands of his/her U.S. citizen spouse. Under these circumstances, the immigrant may submit an application to remove the conditions on his or her status which will be approved only if it is demonstrated that termination of immigrant’s status and deportation would cause extreme hardship. Since such petitions are difficult to have approved it is extremely important to contact an experienced immigration attorney.

Preference One (1st)

  • Unmarried sons or daughters (21 or older) of US citizens.

Preference Two (2nd)

  • Spouses and children (under 21) of lawful permanent residents.
  • Unmarried sons and daughters (21 or older) of lawful permanent residents.

Preference Three (3rd)

  • Married sons or daughters of U.S. citizens and their unmarried children under 21.

Preference Four (4th)

  • Brothers or sisters of US citizens provided that the citizen is 21 or older and their unmarried children are under 21.

Priority Dates

  • If the number of applicants exceeds the number of visas available under a particular category, that category is considered oversubscribed.  As a result, the applications will be processed and visas issued in the chronological order in which the petitions were filed until the numerical cap has been reached. The filing date of the petition is called the applicant’s “priority date.”   A visa cannot be issued until the priority date is reached. This means that there may be a lengthy waiting period. Sometimes that period may exceed several years.


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