6 USCIS-PM B.1
The Immigration and Nationality Act (INA) allows U.S. citizens, U.S. nationals,[1] and lawful permanent residents (LPRs) to petition for certain alien relatives to immigrate to the United States.[2] These alien relatives include immediate relatives[3] of U.S. citizens and relatives who fall within a family-based preference immigrant visa category.[4]
Family-based immigration accounts for most new LPRs with immediate relatives alone making up approximately 40 percent of all new LPRs annually.[5]
Fraudulent, frivolous, or otherwise non-meritorious family-based immigrant visa petitions erode confidence in family-based pathways to LPR status and undermine family unity in the United States. Therefore, USCIS must ensure that qualifying marriages and family relationships are genuine, verifiable, and compliant with all applicable laws.
Legislative History
U.S. immigration law and policy has included family relationships as a basis for admitting immigrants as early as 1924. The Immigration Act of 1924 established a country-specific quota system for immigration to the United States and was the first to establish guidance around family-based immigration by excluding certain spouses and children of U.S. citizens from numerical limitations.[6]
Congress enacted legislation in 1952 and 1965 to further refine existing categories of family members and specifically promote family-based immigration and continued to provide for family-based immigration reform.[7] These laws created the basis for the immediate relative and family-based preference categories that are used today for family-based immigration.[8]
Visa Availability for Immediate Relatives and Family-Based Preference Immigrants
If the petitioners and the alien beneficiaries of family-based immigrant visa petitions meet the eligibility requirements and USCIS approves their petitions, alien beneficiaries may then pursue LPR status by applying for an immigrant visa at a U.S. embassy or consulate (otherwise known as consular processing), or if already in the United States, by applying for adjustment of status.[9]
Immigrant visas are always immediately available for immediate relative beneficiaries as they are not subject to the numerical limitations.[10] Alien beneficiaries in a family-based preference category are subject to annual numerical limitations set by Congress and can immigrate only when an immigrant visa is available.[11]
In part, the availability of an immigrant visa is based on the number of visas designated by Congress on an annual basis for each family-based preference category.[12] The annual limit for family-based preference categories depends on the previous year’s immigration levels and is set at a minimum of 226,000.[13]
After a petitioner files an immigrant visa petition for his or her qualifying relative in a preference category, USCIS or the U.S. Department of State (DOS) assigns a priority date, which establishes the alien beneficiary's place on a waiting list maintained by DOS for issuance of an immigrant visa.[14]
In most instances, the priority date is the date the petitioner properly filed[15] the immigrant visa petition with USCIS or, in cases where the petition is filed with DOS, the date the petition is received at a U.S. embassy or consulate outside the United States.[16]
To immigrate based on the qualifying family relationship, the alien must be the beneficiary of an approved immigrant visa petition demonstrating that he or she is an immediate relative or falls into a preference category. An approved petition and available immigrant visa are the basis for a beneficiary to apply for adjustment of status (if in the United States) or for an immigrant visa (if outside the United States).
[^ 1] U.S. nationals, as defined in INA 308, are afforded the same rights as lawful permanent residents (LPRs) to file a family-based immigration petition for certain alien relatives. See Matter of Ah San (PDF), 15 I&N Dec. 315 (BIA 1975) (holding that nationals, but not citizens, of the United States may also file petitions under INA 203(a)(2)). A person who, though not a citizen of the United States, owes permanent allegiance to the United States (for example, persons born in American Samoa or Swains Island). See definition in Glossary.
[^ 2] In addition, Congress provided that certain relatives may self-petition in limited circumstances, including self-petitioners seeking to immigrate as an abused spouse, child, or parent; as an Amerasian; or as a widow or widower of a U.S. citizen. See Volume 3, Humanitarian Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D]. See Volume 7, Adjustment of Status, Part P, Other Adjustment Programs, Chapter 9, Amerasian Immigrants [7 USCIS-PM P.9]. See the Green Card for Widow(er) of a U.S. Citizen webpage.
[^ 3] See INA 201(b)(2)(A)(i).
[^ 4] See INA 203(a). The term preference is used in immigration law to refer to numerically limited family-based and employment-based categories for immigration and LPR status.
[^ 5] See U.S. Department of Homeland Security, Office of Homeland Security Statistics (OHSS), Annual Flow Reports on Lawful Permanent Residents.
[^ 6] See the Immigration Act of 1924, also known as the National Origins Act or the Johnson–Reed Act, Pub. L. 68-139 (PDF) (May 26, 1924).
[^ 7] See the McCarran-Walter Act, also known as the Immigration and Nationality Act of 1952, Pub. L. 82-414 (PDF) (June 27, 1952). See the Immigration and Nationality Act of 1965, Pub. L. 89-236 (PDF) (October 3, 1965). The 1965 Act replaced quota limitations based on nationality in favor of family reunification and skills-based immigration. Family-based immigration reform has continued to evolve since 1965 with the Refugee Act of 1980, Pub. L. 96-212 (PDF) (March 17, 1980); the Immigration Reform and Control Act of 1986, Pub. L. 99-603 (PDF) (November 6, 1986); the Immigration Act of 1990, Pub. L. 101-649 (PDF) (November 29, 1990); and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (PDF) (September 30, 1996).
[^ 8] See Chapter 2, General Eligibility Requirements, Section B, Qualifying Relationship, Subsection 1, Immediate Relatives of a U.S. Citizen [6 USCIS-PM B.2(B)(1)] and Subsection 2, Family-Based Preference Relatives [6 USCIS-PM B.2(B)(2)].
[^ 9] For more information, see Volume 7, Adjustment of Status [7 USCIS-PM].
[^ 10] See INA 201(b)(2)(A)(i).
[^ 11] See INA 201(a)(1) and INA 203(a). See 8 CFR 204.1. For more information on the numerical limits system, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
[^ 12] See INA 201, INA 202(a), and INA 203(a).
[^ 13] See INA 201(c)(1)(B)(ii).
[^ 14] See INA 203(e). For information on determining priority dates, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 3, Priority Dates [7 USCIS-PM A.6(C)(3)].
[^ 15] See 8 CFR 204.1(b). USCIS considers a petition properly filed if it is filed in accordance with the form instructions and 8 CFR 103.2. The filing date of the petition is generally the date USCIS receives a properly filed petition and constitutes the priority date.
[^ 16] The priority date is listed on a Notice of Action (Form I-797). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 3, Priority Dates [7 USCIS-PM A.6(C)(3)].