Who can apply?
Certain family members can help one another move to the United States permanently as lawful permanent residents (LPRs or “green card” holders). A U.S. citizen can help his/her spouse, fiancé, children, parents, and siblings come to the United States. An LPR can help his/her spouse and unmarried children come to the United States.
Why can it take so long?
Applications to come to the U.S. as a family member of a current U.S. citizen or LPR are split up into six categories. Each year, the government gives five of these categories a specific number of visas (otherwise referred to as “green cards”). The sixth category – immediate relatives of U.S. citizens – does not have a limit on the number of visas that can be granted.
The government evaluates each application based on when it was submitted, so the application that was submitted first gets reviewed first. For applications in categories with visa limits, if more applications were submitted and approved in a given year than there were available visas, the remaining applications have to wait until the next year to be approved. Sometimes, many, many more applications than visas are submitted, so people in some categories of applications have to wait many years before a visa is available and their application can be approved. People from different countries may have to wait a bit longer than others because our government limits the overall number of visas granted to people from a specific country and many other people from that country have already been granted visas.
What are the chances my visa will be granted?
Just because someone has the right relationship to a United States citizen or LPR does not mean that his/her application for a visa will be granted. Green card applicants also have to show that they will not need the support of the government if they are allowed to come live in the U.S. and that they are otherwise admissible.
Congress has established a number of requirements for people to be “admissible” to the U.S. Whether someone is admissible can be a complex legal analysis that depends on a number of facts in an applicant’s life, including their immigration, family, criminal, medical, employment, and military histories as well as recreational activities and memberships to organizations. At Delfunt Law Firm, we regularly handle these evaluations.
When consulting with an immigration attorney about admissibility, it is critically important for a visa applicant and their U.S.-based family member to answer all questions about their history honestly and to tell the attorney about anything that might be related to these things. Under current law and policy, even if an applicant is able to be issued and use a visa, despite being inadmissible, the U.S. government can take it back at any time later, even if the person has naturalized. To avoid this sort of surprise, it is crucial to be honest in answering the questions of any immigration attorney.
It is also important to remember that, just because someone has something in their history that makes them inadmissible, they may still be able to come to the U.S. as an LPR. Many grounds of inadmissibility can be waived in certain circumstances to make the applicant admissible. Eligibility for a waiver also typically entails a complex legal analysis, which we do frequently at Delfunt Law Firm.
How does it work?
There are generally two steps to family-based immigration: (i) proving the right relationship exists and (ii) proving the applicant is admissible to the United States. This second step includes showing that the U.S. government will not need to support the applicant financially if the applicant is allowed to live in the United States, that the applicant has not been convicted of a crime making him/her inadmissible, that the applicant does not have a communicable disease, among other things.
Applicants who live overseas typically must do this second step at a U.S. consulate or embassy near where they live (called “consular processing”). Certain family members already in the U.S. may be able to “adjust status,” meaning that they can apply for and receive their “green card” without leaving the United States. Other family members already in the United States may need to depart the U.S. to access their visa through consular processing.
It is important to remember that crossing the U.S. border at any time in either direction may have a significant impact on the family member’s immigration application, so it is crucial to consult with an immigration attorney before deciding to depart to consular process or making arrangements to travel to the U.S. in hopes of being able to adjust status.
What next?
There are a lot of variables in this process. U.S. citizens or Legal Permanent Residents interested in helping a family member live in the United States as a green card holder can scheduled a consult with us to understand more about what this process may look like for them and their family member.
