Immigration
Family Based Immigration
A foreign citizen seeking to live permanently in the United States requires an immigrant visa (IV). To be eligible to apply for an IV, a foreign citizen must be sponsored by an immediate relative who is at least 21 years of age and is either a U.S. citizen or U.S. Lawful Permanent Resident (that is, a green-card holder).
There are two types of family-based immigrant visas:
Immediate Relative – these visas are based on a close family relationship with a U.S. citizen, such as a spouse, child, or parent. The number of immigrants in these categories is not limited to each fiscal year.
Family Preference – these visas are for specific, more distant family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). The number of immigrants in these categories is limited each fiscal year.
Keep in mind that U.S. citizens can file an immigrant visa petition for their:
Spouse
Son or daughter
Parent
Brother or sister
U.S. Lawful Permanent Residents can only file an immigrant visa petition for their:
• Spouse
Provisional Unlawful Presence Waivers (601a)
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children, and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.
Aliens who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these aliens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.
The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants, as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.
This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.
The expansion of the provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility after a DOS consular officer determines that they are inadmissible to the United States.
