Understanding the preference system

Because of the limited number of immigrant visas available each year, it is expected that you may not get an immigrant visa after your petition is approved. In most cases, several years pass by between the time USCIS approves your petition and the Department of State gives you an immigrant visa number. Within the preference system are various categories. Each category has been assigned by US immigration law a limited and specific number of visas available for each year for each country. Thus, each category has different wait times and depending on what category you are in, you probably would have either a longer or shorter wait than those in the other categories.

Worth mentioning is an exception to this rule which is that of immediate relative petition which, as we learned from last week, are certain immigrants who because of their close relationship to U.S. citizens are exempt from the numerical limitations imposed on immigration to the United States. Immediate relatives are: spouses of US citizens, children (under 21 years of age and unmarried) of US citizens, and parents of US citizens 21 years of age or older. Again, immediate relatives do not have to wait. Their visas are immediately available.

As we noted in last week's column, a preference system is a system used to categorize family-based immigration depending on the relationship of petitioner and beneficiary and subject to numerical limitation. In the family-sponsored preference system, there are four specific categories:

F1 - Unmarried sons and daughters of US Citizens;

F2 - Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents. There are two sub classifications under this category:

F2A - Spouses and Children of Permanent Residents

F2B - Unmarried Sons and Daughters (21 years of age or older ) of Permanent Residents

F3 - Married Sons and Daughters of US Citizens

F4 - Brothers and Sisters of Adult US Citizens

Oftentimes I get asked these questions: I am a US citizen and I want to bring my niece here in the US. Can I petition her? Or I am a green card holder, I want to petition my only child who is now married. Can I do that? Or I am now a US citizen. I want to repay my debt of gratitude to my grandparents or aunt who helped me in my studies. Can I petition them?

If you read the categories, you can see not only a list of those who are covered under the preference system but also those who are not. For US citizens, they can petition only the following: unmarried sons and daughters who are above 21 years old (remember those less than 21 are immediate relatives); married sons and daughters of US citizens; and brothers and sisters of adult US citizens. Thus, a US citizen cannot directly file a petition for his grandparents, aunts and uncles, nieces and nephews, grandchildren and a minor US citizen cannot file a petition for his parents and siblings.

Take note of the phrase that I use, "cannot directly file," because spouses and minor children under F3 category as well as spouses and nieces and nephews under F4 category can still benefit from a petition filed by a US citizen as "derivative beneficiaries."

For green card holders or lawful permanent residents (LPR), they can only file a petition for their spouses and their unmarried sons and daughters, regardless of age, whether these children are below (F2A) or over 21 years old (F2B). Thus, green card holders cannot file a petition for their own parents, aunts and uncles, brothers and sisters, nieces and nephews and grandparents and the LPR's married children, regardless of age. So even if you are 18 years old, but you are already married, you cannot be petitioned by your LPR parent. There is no category available for you. Conversely, even if you are 25 years old but still single, you can still be petitioned by your LPR parent under F2B category. Take note that a child of an F2B beneficiary can also qualify as a derivative beneficiary.

We are only scratching the surface here on family based immigration. There are a number of issues that interplay within and between these categories. In future columns, I will show you some real life examples how these interactions play out.