The Immigration and Nationality Act (INA)
The Immigration and Nationality Act (INA) is U.S. law that sets a limit on the number of family-based immigrant visas that may be issued to foreign nationals each year. The U.S. Department of State (DOS) is tasked with allocating these immigrant visas, and U.S. Citizenship and Immigration Services (USCIS) plays a major role in determining eligibility for immigrant visas.
This overview will give you a top-level understanding of how family-based immigration works in the United States and how you may be able to help a foreign family member obtain permanent residence (green card). Permanent resident status provides a family member with the privilege of living and working in the United States permanently. A person with an immigrant visa or someone that has a green card both were granted permanent resident status. It’s the same thing with different names.
Petitioners and Beneficiaries
Immediate Relative and Family Preference Categories
Green Card Application Process
The family-based immigration process generally begins with the petitioner (U.S. citizen or lawful permanent resident) making a request to the U.S. government to allow a family member to immigrate. The petitioner files Form I-130, Petition for Alien Relative, with USCIS. The I-130 petition establishes the existence of a qualifying family relationship (within the immediate relative or family preference categories). For more details on what happens after filing the I-130 petition, view the Form I-130 processing time.
Once USCIS approves the I-130 petition and a visa number is available, the foreign family member may apply for a green card. There are two basic paths to apply for the green card: consular processing or adjustment of status. Consular processing is a means for applying for an immigrant visa (green card) through the U.S. embassy or consular office in a foreign country. Consular processing is the most common path to obtain a green card. In some cases, an immigrant that is already inside the United States as a temporary visitor (e.g. student, tourist, etc.) may be able to adjust status to permanent resident. Adjustment of status is the process of changing immigration status to permanent residence (green card holder). Adjustment of status is only available to a small group of applicants.
Priority Dates and the Visa Bulletin
When the demand for family preference immigrant visas exceeds the number of visas available (which is virtually always), a backlog forms. There is a waiting list because too many people want to get a green card. In this situation, a person’s place in line is determined with a priority date. The priority date is the date that the I-130 petition is properly filed and accepted. The priority date is only relevant to family preference visa petitions. Remember, there is an unlimited number of visas available to immediate relatives.
The U.S. Department of State publishes a monthly visa bulletin that family preference immigrants review to see when they’ve reached the front of the line. Some categories may take a few months while other categories can take several years. When your priority date reaches the front of the line, your priority date as “become current.” An immigrant visa is available to you. Family preference beneficiaries may assume that an I-130 approval means a visa is available. However, the priority date must also be current. Once USCIS approves the I-130 petition and the priority date is current, the foreign family member may apply for a green card.
Attorney Simran Kaur specializes in criminal defense and immigration law. Simran Kaur began her career as a prosecutor for San Joaquin County.
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