FAQ - Immigration

What is the Priority System for Family-Based Visas?

The US issues a limited number of family-based immigrant visas each year. In order to prioritize who should receive these visas, the US government created a preference system based on the US relative wishing to sponsor a family member and the relationship between the US relative and the family member. Currently, the priority system is set up as follows:

  • First preference: unmarried children of US citizens (limited to 23,400 visas annually)
  • Second preference: spouses and children, whether married or unmarried, of US legal permanent residents (limited to 114,200 visas annually with a required 77% of the available visas in this category allocated to spouses and minor children under 21 years old)
  • Third preference: married children of US citizens (limited to 23,400 visas annually)
  • Fourth preference: brothers and sisters of US citizens over 21 years old (limited to 65,000 visas annually)

In order for a US citizen or legal permanent resident to sponsor a family member for immigration, they must be able to prove that they can financially support the family member once he or she arrives in the US. This is accomplished by filing an Affidavit of Support with the US Citizenship and Immigration Services (USCIS).

Immediate Relatives

Immediate relatives of US citizens are not included in the preference system. Immediate relatives include spouses, unmarried children under 21 years old and parents, if the US citizen child is at least 21 years old. US citizens wishing to sponsor an immediate relative for immigration are required to submit a petition to the USCIS. Upon approval of the petition, the immediate relative will receive a visa number from the US State Department once one becomes available. The immediate relative must be eligible to receive an immigrant visa under US laws, or receive a waiver for any ineligibility. Approval of the petition does not guarantee the family member will be allowed to immigrate to the US.

Derivative Status

In some situations, spouses and children of a visa applicant may be eligible for derivative status and may not be subject to the preference system. Derivative status means that the spouse or child can apply for visas based on the approved application of the spouse or parent, known as the principal applicant. For example, if the husband receives an employment-based visa to immigrate to the US, his wife and any unmarried children under the age of 21 can receive derivative status to join the husband in the US.

Derivative status is available to the spouses and minor children of those admitted to the US as legal residents based on family-based, employment-based or diversity lottery visas.

For children to be eligible for derivative status, they must be unmarried and under 21 years of age. Children who turn 21 while waiting for the visa application to process may be able to maintain status as a child for immigration purposes under the Child Status Protection Act. Also, married children who divorce prior to their 21st birthday also may be able to claim status as a child under this Act.

To learn more about sponsoring a family member for immigration, applying for derivative status or for help with any other immigration matters, contact an experienced immigration attorney today.

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