Family-Based Immigration

RS represents individuals who wish to apply for permanent residence based on a qualifying relationship to a U.S. citizen or Lawful Permanent Resident family member. In addition to straightforward cases, our attorneys have significant experience in successfully representing family-based applicants whose cases are complicated by past immigration difficulties, criminal concerns or other potential impediments to admission to the U.S. as a permanent resident.

We also assist fiancés, fiancées, and spouses of U.S. citizens to enter the U.S. on K visas and thereafter apply to adjust status to permanent residence.

Family-Based Nonimmigrant Visas

K-1 Visa

The K-1 visa is available to fiancés and fiancées of U.S. citizens. Applicants first must have an I-129F petition approved by U.S. Citizenship & Immigration Services (CIS), and then apply for a single-entry K-1 visa stamp at the appropriate U.S. Embassy or Consulate abroad.

• The K-1 visa holder must marry the petitioning U.S. citizen fiancé(e) within 90 days of entry into the U.S. in K-1 status, and should then file for adjustment of status to lawful permanent residence (via Form I-485) within that same timeframe to avoid becoming undocumented when the K-1 status expires.
• K-1 visa holders can apply for an Employment Authorization Document (EAD) which would allow them to work based on the K-1 visa prior to applying for permanent residence (but in practice the EAD is rarely received prior to its expiration at the end of the K-1 validity period).
• Applications for an EAD and Advance Parole (travel authorization) can also be concurrently-filed with an I-485 application after admission in K-1 status.
• Children of a K-1 applicant may enter the U.S. with a K-2 visa as long as the child is under 21 years of age. The K-2 visa holder should also apply for adjustment of status to permanent residence after the marriage of the K-1 parent, but will only be eligible to apply for permanent residence through that marriage while under the age of 21.

K-3 Visa

The K-3 visa is available to spouses of U.S. citizens who wish to enter the United States in order to complete the permanent residence process. The U.S. citizen must first file an I-130 immigrant visa petition on behalf of his or her spouse. Thereafter, the foreign national spouse must obtain an approved I-129F from U.S. Citizenship & Immigration Services (CIS) in order to apply for the K-3 visa through the U.S. Embassy or Consulate in the country in which the marriage took place (if the marriage took place outside the U.S.).

• The K-3 typically allows an individual to make multiple-entries into the U.S. and is initially valid for two years, during which time the visa holder must either apply for permanent residence or apply to extend the K-3 visa.
• A K-3 nonimmigrant is eligible to apply for an Employment Authorization Document (EAD), which provides general employment authorization to work with any U.S. employer for the validity period of the visa.
• Children of a K-3 applicant may enter the U.S. with a K-4 visa as long as the child is under 21 years of age and was under the age of 18 at the time the K-3 parent and the U.S. citizen were married. The K-4 child should also apply for adjustment of status to permanent residence after the marriage of the K-3 parent, but will only be eligible for permanent residence through that marriage while under the age of 21.

Family-Based Permanent Residence Process

In order to obtain permanent residence (i.e. a "green card") in the United States, an individual must first be granted an immigrant visa number. Under the family-based immigration system, U.S. citizens and permanent residents are able to sponsor certain family members for permanent residence. Family-sponsored visas are divided into two main categories: immediate relatives and preference immigrants, as follows:

Immediate Relatives

• Includes spouses of U.S. citizens, minor unmarried children (under 21 years old, including certain adopted children and orphans) of U.S. citizens, and parents of U.S. citizens who are over 21 years old. Also includes spouses and children of U.S. citizens who are victims of domestic violence, and spouses of deceased U.S. citizens who were married for at least two years at the time of the spouse's death and were not legally separated, provided that the foreign national spouse has not remarried and files an immediate relative petition within two years of the death of the U.S. citizen spouse.
• Unlimited number of visas (i.e. no waiting list).
• No derivative beneficiaries of an immediate relative (see below). A separate petition must be filed for each immediate relative.

First Preference

• Unmarried sons or daughters (over 21 years old) of U.S. citizens.

Second Preference

• Family 2A - Spouses and children of lawful permanent residents, including those who are victims of domestic violence.
• Family 2B - Unmarried sons or daughters (over 21 years old) of lawful permanent residents.

Third Preference

• Married sons and daughters of U.S. citizens.

Fourth Preference

• Brothers and sisters of U.S. citizens 21 years of age or over.

Derivative Beneficiaries

• Spouses and children of the principal alien under each preference category are entitled to the same status and order of consideration if accompanying or following to join the principal alien. This does not apply to Immediate Relatives.

As noted above, there are an unlimited number of visa numbers available to Immediate Relative applications, which is not true for family members who wish to benefit from a preference category. Because of the limited number of visas available for each preference category, there are extremely lengthy backlogs which create delays in the availability of immigrant visas. To determine whether there is a delay (a.k.a. retrogression) in the availability of an immigrant visa in a particular family-based category, refer to the U.S. State Department's monthly Visa Bulletin, which provides information about the availability of immigrant visas in each family-based and employment-based preference category. The visa bulletin indicates that a preference category is either "current" (meaning there is no backlog) or "unavailable" (meaning there are no visas currently available for that category), or provides a cutoff date (a.k.a. "priority date") by which an immigrant visa petition must have been filed in order for an immigrant visa to be available to the applicant.

> Back to Top

• RS News Flashes

• Current and Previous Newsletters
• Sign up for our Email Newsletter