A Lawful Permanent Resident (commonly known as a “green card” holder) is a person who has an immigrant visa that allows them to work and live anywhere in the United States. Being a green card holder is also a required step in becoming a U.S. citizen and obtaining a U.S. passport. There are several ways to obtain a U.S. green card and one popular way is through family-based green card petitions where U.S. citizens and green card holders (Lawful Permanent Residents) sponsor certain family members for permanent residency (green cards) in the United States.
U.S. citizens can file for more types of family members than green card holders who are only permitted to file for their spouse and unmarried children. The U.S. citizen must be at least 21 years old to sponsor a family member.
U.S. citizens can file for:
- Spouse
- Children
- Parent (U.S. citizen must be at least 21 years old)
- Brother or sister
**Widow(er) of deceased U.S. Citizen (self-petition)
Green card holders (Lawful Permanent Residents) can file for:
- Spouse
- Unmarried children
Table of Contents
A person can qualify for a family-based green card no matter where they are currently residing in the world. There is also no prerequisite as to the person being in some type of nonimmigrant visa status (such as an H1B visa) or having an educational degree from a U.S. school. Family-based green cards mainly look at (1) the family relationship between a U.S. citizen or green card holder (Lawful Permanent Residents) and the family member they are sponsoring for, and (2) whether the U.S. citizen or green card holder is able to financially support the family member that they are sponsoring for. Other factors such as the family member’s educational level, language skills, or work experience are not considered in family-based green card petitions.
Family-based green card petitions is a common and popular way for U.S. citizens or green card holders (Lawful Permanent Residents) to sponsor certain family members for a green card to live and work in the United States. There 2 two systems under the family-based green card petitions: Immediate Relatives and Family Preference. Family-based green card petitions filed under the immediate relatives system are relatively fast and reserved only for close family members of the U.S. citizen, such as the spouse, unmarried minor children, and parents of the U.S. citizen. Family-based green card petitions filed under the family preference system are usually much slower because of visa availability backlog problems and are for spouses and unmarried children (both minor and adult) of green card holders (Lawful Permanent Residents), and the siblings and adult children (married and unmarried) of U.S. citizens.
In most family-based green card petitions, the U.S. citizen or green card holder (Lawful Permanent Resident) must be able to show they are financially able to support the family members that they are sponsoring by having an income level that is at least at the 125% of the federal poverty level.
There are two types of family-based green cards (immigrant visas): (1) Immediate Relative and (2) Family Preference.
Close Family Members of U.S. Citizen (IR)
- IR1 (or CR1): Spouse of U.S. citizen
- IR2: Unmarried children under 21 Years old of U.S. citizen
- IR3: Orphan adopted abroad by U.S. citizen
- IR4: Orphan to be adopted in the United States by a U.S. citizen
- IR5: Parents of U.S. citizen (the U.S. citizen must be at least 21 years old)
**Widow(er) of deceased U.S. citizens (self-petition)
**Same-sex marriages and marriages to transgender spouses are included in marriage-based green card petitions
Family preference green cards are for green card holders and certain relatively distant family members of U.S. citizens. Family preference green cards are further divided into four preferences and are given quota limitations on how many immigrant visas can be given out each year. The higher the preference, the faster the person will be able to become a permanent resident (green card holder).
Distant Family Members of U.S. Citizen (F)
- First Preference (F1): Unmarried children over 21 Years old of U.S. citizens
- Third Preference (F3): Married children (with their spouse and children) of U.S. citizens
- Fourth Preference (F4): Brothers or sisters (with their spouse and children) of U.S. citizens (the U.S. citizen must be at least 21 years old)
** Grandparents, aunts, uncles, in-laws, cousins cannot sponsor a relative for a green card
Close Family Members of Green Card Holders (Lawful Permanent Residents)
- Second Preference (F2A): Spouses or unmarried children under 21 years old of green card holders (Lawful Permanent Residents)
- Second Preference (F2B): Unmarried children 21 years old or older of green card holders (Lawful Permanent Residents)
The process for most family-based green card petitions requires (1) filing a green card petition (Form I-130 or Form I-360 if it is for spouses of deceased U.S. citizens) with the U.S. Citizenship and Immigration Services (“USCIS”) and (2) a change of status application by either filing a Form I-485 application with the USCIS or a DS-260 application with the Department of State (“DOS”).
Usually, after the approval of the family-based green card petition (Form I-130 or Form I-360 if it is for spouses of deceased U.S. citizens), a person who is already residing in the United States will choose to file a Form I-485 application to adjust their current nonimmigrant visa status to a lawful permanent resident (green card) visa status without leaving the United States. The Form I-485 application (“Application to Register Permanent Residence or Adjust Status”) is only available to people who are already in the United States and have maintained their lawful visa status throughout their stay.
A person already residing in the United States also can choose to file a DS-260 application to change into a lawful permanent resident (family-based green card) visa status by going through consular processing at a U.S. embassy or consulate abroad (usually in the person’s home country). In cases where a person is ineligible for adjusting status in the United States or resides outside the United States, consular processing must be done. Consular processing usually takes place at the U.S. consulate or embassy in the person’s home country, however, under certain circumstances the person can do the consular processing in another country as a “Third Country National.”
An interview for the family-based green card will be done at a local USCIS office for the adjustment of status or at a U.S. consulate or embassy abroad for consular processing. For a person who is already in the United States adjusting their visa status, the interview approval is the final step in obtaining their family-based green card.
For a person who is outside the United States doing consular processing, the person must physically enter the United States after the interview approval as the final step to obtain their family-based green card. In other words, a person who is doing consular processing to obtain their green card must be admitted by the CBP (“Customs and Border Protection”) officer at the U.S. border (usually done in the secondary inspection room at the airport) for their family-based green card to be issued.
Priority Date for Status Change
After the family-based green card petition (Form I-130 or Form I-360 if it is for spouses of deceased U.S. citizens) is approved by the USCIS, the person must then obtain their green card when their priority date is current by filing for an adjustment of status in the United States or consular processing at a U.S. consulate or embassy aboard. The priority date is the filing date of the person’s family-based green card petition (Form I-130 or Form I-360 if it is for spouses of deceased U.S. citizens).
In most family preference green card cases (i.e., which means that immediate relatives of U.S. citizens are not included), there is a waiting time of maybe months to several years from when the family-based green card petition is approved to when their priority date becomes current. The long waiting times for family-based green card petitions are due to certain countries (based on the person’s country of birth not citizenship) or immigrant visa categories having more people approved for green cards than the maximum number of green cards that are allowed to be given out each year (which means that there is a visa availability backlog problem). The green cards are issued in chronological order based on the priority date in those oversubscribed countries or immigrant visa categories.
The U.S. Department of State releases a visa bulletin every month that shows the most current priority dates for all immigrant visa (green card) categories. The priority dates of family-based green card petitions must be before the “Final Action Dates” listed in the visa bulletin to be seen as current. Usually, family members that were born in China, India, the Philippines, and Mexico have a longer waiting time for their priority to become current due to the high immigration demand from people that were born in those countries and their per-country visa limitations.
Cross-Chargeability
The cross-chargeability rule can be used by the spouse and unmarried minor children of F-3 married children of U.S. citizens and F-4 siblings of U.S. citizens. Cross-chargeability is often used when the person’s country of birth has a visa backlog problem but the country of birth for the person’s spouse does not. The person born in the country that has a visa availability backlog problem will use the cross-chargeability rule to be charged against (use the quota of) the spouse’s country instead (this usually results in obtaining the green card much earlier). For example, a person born in China (which usually has a visa availability backlog problem) with a spouse born in South Korea (which does not have a visa availability backlog problem): both of them can use the quota of South Korea instead of China when they apply to change into their green card visa status. It does not matter which person is the primary person pursuing the green card petition.
Minor children can be charged to either parent’s country of birth, or in some circumstances the child can be charged to a third country that neither parent was born in or had residence in when the child was born. For example, both parents were born in Japan but their child was born in China during a temporary vacation there: the child can be charged against the quota of Japan. Under most circumstances, derivative beneficiaries (such as the spouse or children of green card visa applicants) cannot be eligible to apply to change into their green card visa status before the principal green card visa applicant.
Please note that parents cannot use their minor children’s country of birth under the cross-chargeability rule. For example, both parents were born in China and their child was born in Japan. The parents cannot use Japan which is their child’s country of birth and would still need to use China which is their own country of birth to wait for their green card.
Combo Card (EAD & Advanced Parole)
For family members in the United States with a pending adjustment of status (Form I-485), they can file for a “combo card” that consists of work authorization (Form I-765) and advance parole (Form I-131) to travel internationally before the green card is approved.
The EAD allows unrestricted employment where a person can change their job freely and can legally work for any employer in the United States, unlike a work visa such as an H1B visa which restricts a person to work for a specific employer in the United States.
Advanced parole allows a person to travel internationally while their adjustment of status is still pending. If a person has a pending adjustment of status application (Form I-485) with the USCIS but leaves the United States without advanced parole and does not have a certain valid nonimmigrant visa status (H1B visa, H4 visa, L1 visa, L2 visa, K3 visa, K4 visa, V visa) that allows international travel, their adjustment of status will be considered abandoned.
For family members not in the United States, they can immediately work after they are admitted (enters) into the United States based on the permanency residency stamp in their passport or their green card when received.
Difference Between a Green Card and a Temporary Visa
The main difference between a green card and a temporary visa (such as an F1 student visa, B1/B2 tourist visa, H1B work visa, etc.) is that a green card holder can live anywhere in the United States and change their jobs freely among different employers or industries without needing additional filings or approvals from the U.S. government. Also, unlike temporary visas, green cards are permanent so there is no set maximum time on how long a green card holder can stay in the United States.
For example, a person with a green card does not need to file anything new with the USCIS when they change jobs while a person with an H1B visa must have a Change of Employer H1B visa application filed for them because the H1B visa is tied to the specific U.S. employer that is sponsoring the H1B visa itself.
The Child Status Protection Act (CSPA) protects certain children under the family-based green card petitions from aging out and losing their eligibility for the green card (or a particular visa category). Children can be seen as “aged out” if they turn 21 years old before their adjustment of status (Form I-485) with the USCIS or their application for an immigrant visa with the U.S. Department of State (i.e., consular processing) is approved.
The CSPA determines the principal beneficiary (the person being sponsored) and their derivative children’s (the children of the person being sponsored) age by subtracting the amount of time USCIS took to approve the family-based green card petition from that person’s biological age at the time their visa becomes available. If the person’s CSPA adjusted age is under 21 years old when their priority date became current under their visa category, the person can retain that original status and their family-based green card petition will continue to proceed under that visa category.
Children using the CSPA adjusted age must file for adjustment of status or consular processing to obtain their green card within one year of their priority date becoming current. If the child does not seek to change into the green card status within one year, then “extraordinary circumstances” must be shown to use that CSPA adjusted age.
Children of U.S. Citizens
The CSPA does not affect the children of U.S. citizens (who are never seen as aged out) because the law already allows them to preserve the status that they held when their family-based green card petition was filed. If a child of the U.S. citizen was unmarried and under 21 years old when their immediate relatives family-based green card petition was filed, they can still proceed with that original immediate relatives family-based green card petition even if they turn 21 years old. However, if the child of the U.S. citizen under the immediate relatives family-based green card petition gets married before obtaining their green card, they will be downgraded to the third family preference (F-3 Married children of U.S. citizens).
CSPA Children of U.S. Citizen's Family Members
The CSPA mainly affects the derivative children of the principal beneficiary (sponsored family member’s child) under the third preference (F-3 Married children of U.S. citizens) or fourth preference (F-4 Brothers or sisters of U.S. citizens). For example, a U.S. citizen sponsoring a third preference family-based green card petition for his married daughter and her derivative husband and unmarried minor son: when the derivative unmarried minor son turns 21 years old, he loses his derivative status and his parents would need to file a new second-preference (F-2B) family-based green card petition (which cannot use an old priority date) for him after they obtain their own green cards unless he is protected by the CSPA adjusted age.
Child Status Protection Action (CSPA) Age Calculation
In most cases, the Child Status Protection Action (CSPA) age is calculated by:
- (A)
- the age when the priority date becomes current (the date used for calculation can be either the exact priority date or the first day of the month that the visa became available in the visa bulletin, whichever date is later)
MINUS
- (A)
- the age when the priority date becomes current (the date used for calculation can be either the exact priority date or the first day of the month that the visa became available in the visa bulletin, whichever date is later)
MINUS
- (B)
- the number of days the family-based green card petition was pending with the USCIS before it was approved
If the calculated age under the CSPA formula is under 21 years old, then the person can continue to file for an adjustment of status (Form I-485) or consular processing (Form DS-260) for their family-based green card as a “child” within one year of their priority date becoming current. On the contrary, if the calculated age under the CSPA formula is at or over 21 years old, then the person is not protected as a child under the CSPA and is seen as “aged out” of their family-based green card petition.
For example:
Qualified Adjusted CSPA Age
Kylie is 21 years, 11 months old
Minus (-) 1 year
20 years, 11 months old
Date when priority date becomes current
Amount of time her mom’s petition was pending
CSPA age for Kylie
Kylie is 21 years, 11 months old
Date when priority date becomes current
Minus (-) 1 year
Amount of time her mom’s petition was pending
20 years,
11 months old
CSPA age for Kylie
Kylie will be qualified as a child for the green card petition under the CSPA adjusted age
Unqualified Adjusted CSPA Age
Kylie is 22 years, 0 months old
Minus (-) 1 year
21 years, 0 months old
Date when priority date becomes current
Amount of time her mom’s petition was pending
CSPA age for Kylie
Kylie is 22 years, 0 months old
Date when priority date becomes current
Minus (-) 1 year
Amount of time her mom’s petition was pending
21 years,
0 months old
CSPA age for Kylie
Kylie will not be qualified as a child for the family-based green card petition under the CSPA adjusted age.
Family-based green cards are a common way for certain family members of U.S. citizens or green card holders (Lawful Permanent Residents) to obtain a green card to live and work in the United States. Family-based green card petitions under the immediate relatives system are for spouses, unmarried minor children, and parents of U.S. citizens (who are at least 21 years old) are the fastest due to no visa availability backlog problems because there are no quota limitations on how many green cards can be given to these immediate relatives of U.S. citizens each year.
Family-based green card petitions under the family preference system are for spouses and unmarried children (both minor and adult) of green card holders (Lawful Permanent Residents), and siblings and adult children (married and unmarried) of U.S. citizens which usually have a much longer wait time due to visa availability backlog problems because of the quota limitations on how many green cards can be given out to these type of family members each year. The Child Status Protection Action (CSPA) can protect the derivative children of married children of U.S. citizens (F3 third preference family-based green card) or the derivative children of the U.S. citizen’s siblings (F4 fourth preference family-based green card) from aging out from their family-based green card petition.
If you have a family-based green card (family members of U.S. citizens or green card holders) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify what category the client is under the family-based green card petition and whether there are other green card options available to the client. We will work closely with our clients to prepare their family-based green card petition and we will also strategize on how the family-based green card petition should be presented in the filings and in the interview to achieve the best chances of approval. It is advised and common practice to retain an immigration attorney for certain unusual family-based green card petitions due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
- Step 1:
- Step 2:
- Step 3:
- Step 4:
- Step 5:
- a.
- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
- Step 1:
- Step 2:
- Step 3:
- Step 4:
- Step 5:
- a.
- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
- Step 1:
- Step 2:
- Step 3:
- Step 4:
- Step 5:
- a.
- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued
RELATED ARTICLES
- Immediate Relative of U.S. Citizen (IR)
- Marriage Based Green Card (IR1 / CR1 / F2A)
- Family Members of Green Card Holders (F2A / F2B)
- Married Children (F3) & Unmarried Children Over Age 21of U.S. Citizen (F1)
- Brother and Sister of U.S. Citizen (F4)
- Parents of U.S. Citizen (IR5)
- Spouse of Deceased U.S. Citizen (EB4)
- Spouse of Green Card Holders Checklist (F2A)
- Children of Green Card Holders Checklist (F2A / F2B)
- Spouse of U.S. Citizen Green Card Checklist (IR1 / CR1)
- Children of U.S. Citizen Green Card Checklist (IR2 / F1 / F3)
- Sibling of U.S. Citizen Green Card Checklist (F-4)
- Parents of U.S. Citizen Green Card Checklist (IR5)
- Widow(er) of U.S. Citizen Green Card Checklist (EB4)