U.S Immigration law allows U.S. Citizens, Lawful Permanent Residents, certain temporary visa holders, and Green Card Applicants to bring their children and spouses from abroad to stay and live with them in the United States. This short article provides helpful information about the requirements and process for bringing relatives to the U.S.
Children and Spouses of U.S Citizens and Lawful Permanent Residents.
Children (under 21) and spouses of U.S citizens are considered Immediate Relatives. They can apply for a Green Card anytime (*parents of adult U.S. citizens are also regarded as Immediate Relatives). The first step will be for the U.S. citizens to file an I-130 Petition for their relatives. Once the I-130 Petition is approved, the Green Card application can be filed. If the relatives change status within the U.S., the I-130 Petition and Green Card application can be filed concurrently.
All other petitions are subject to the Visa Cap. Thus, they can only apply for a Green Card when their priority date (the filing date of the I-130) is earlier than the cut-off date for their preference category and country of birth. There are four preference categories:
First, unmarried sons and daughters (older than 21) of U.S. citizens.
Second, spouses, children, unmarried sons, and daughters (older than 21) of Permanent Residents.
Third, married sons and daughters (older than 21) of U.S. citizens.
Fourth, brothers and sisters of adult U.S. citizens.
The Department of Homeland Security issues a Visa Bulletin with monthly cut-off dates. The availability of priority dates can be current for some categories and countries and several years away for others. It changes over time and can move forward or backward.
Once the priority date becomes available, your relatives will be eligible to apply for a Green Card. This process includes filing an Affidavit of Support by the petitioner, biometrics, a medical exam, and an interview at a U.S. consulate.
Children and Spouses of Temporary Visas Holders (H1-B, L-1, O-1. F-1).
Holders of non-immigrant visas can also bring their relatives to the U.S. while on temporary status. For example, spouses and children (under 21) of H-1B employees are considered dependent and eligible for H-4 Nonimmigrant status. H-4 beneficiaries are only eligible to be in the U.S., while the principal H-1B beneficiary is in a valid H-1B status. Most H-4 dependents do not qualify for work authorization, with limited exceptions.
O-1 Visa holders can also bring their spouses and children under 21. The spouse and children may be eligible for an O-3 Nonimmigrant Visa, subject to the same admission period and limitations as the O-1 beneficiary. O-3 Visa holders may not work in the United States, but they may participate in full-time or part-time study.
L-1 Visa holders are also allowed to bring family members to the U.S. Spouses of L-1 workers with a valid L-2 Nonimmigrant status are considered employment authorized incident to their status. Thus, they are permitted to work upon admission.
The F-2 Visa is for a dependent spouse or an unmarried child (under 21) of F-1 Student Visa holders. F-2 status enables dependents to stay in the United States during the F-1 student’s program.
Derivatives (Children and Spouses) of Green Card Applicants.
If you are a green card applicant, whether you are applying through family members, employer petitioners, or self-petitioning (EB-2 with NIV, for example), you might also want to bring your relatives to the U.S.
Derivative Spouse
The derivative spouse of a Green Card applicant might be accorded the same priority date and classification as the applicant if the marriage existed when the applicant adjusted status or was admitted to the United States as an LPR. The marriage must also continue during the derivative’s adjustment of status process, and the applicant must remain in LPR status.
Derivative Child
The child of a Green Card applicant may also be accorded the same priority date and classification as the applicant. The child must acquire the relationship before the principal applicant is admitted to the United States as an LPR and must maintain their status (child under 21 and unmarried) until obtaining their LPR status.
For further information and case-specific questions, please email us at: info@rsbilaw.com or leave a message at: (408) 758-2712.
*This article has been prepared for general information purposes only. The information presented is not legal advice, is not to be acted on as such, may not be current, and is subject to change without notice. Readers should contact their attorney to obtain advice concerning any particular legal matter.
© Copyright 2022 by Revital Shavit Immigration law
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