Before Filing an I-130: Legal Issues Petitioning for Relatives

Before you begin the process of petitioning to get family members into the United States, here are the important legal issues to consider.

Whether you're a U.S. citizen, U.S. permanent resident, or intending immigrant, you may have questions about whether trying to get U.S. residence (a green card) for the foreign-born relative is a good idea -- and whether it will really work. Such questions might include:

  • Which relatives are eligible to immigrate?
  • Does the U.S petitioner (sometimes called the sponsor -- the one who files a visa petition to start the process for the foreign-born relation) have to meet any special requirements to help someone immigrate?
  • Does the immigrant him- or herself have to show anything other than being related to the U.S. citizen or resident petitioner in order to immigrate?
  • How long will the process take?

Below, we briefly address these. But realize that immigration law is very complicated, with lots of exceptions and special situations that depend on personal situations and which country the immigrant is coming from.  

Which Relatives Are Eligible to Immigrate?

U.S. citizens and permanent residents can petition to help the following people immigrate. Those marked "IR" are immediate relatives, for whom an unlimited number of visas are available each year, meaning no waiting list for them. Everyone else named below is what's known as a "preference relative," meaning they are subject to visa limits and therefore long waits until a visa becomes available to them.

  • Spouse of U.S. citizen, whether same-sex or opposite sex (IR)
  • Parents of U.S. citizen (provided the citizen is over age 21) (IR)
  • Unmarried children, under 21 of U.S. citizen (IR)
  • Married or adult children of U.S. citizen
  • Brother or sister of U.S. citizen
  • Spouse of U.S. lawful permanent resident, whether same-sex or opposite sex
  • Unmarried children of U.S. lawful permanent resident (those under and over age 21 are in separate preference categories).

See below for more on how long the preference relatives are likely to wait until a visa becomes available. See our overview article for more on eligibility rules for family based visas and green cards.

Requirements for the Petitioner (Sponsor)

To be a petitioner, you must:

  • be a citizen or lawful permanent resident of the United States.
  • be able to serve as a financial sponsor as well -- that is, support your relative at 125% over the U.S. poverty line (you will have to show verification of your income and assets for this). These guidelines change annually, so check USCIS Form I-864P for the latest.

Requirements for the Immigrants

People who want to immigrate to the United States must also meet certain requirements. You must not only meet the basic eligibility criteria of having a U.S. citizen or permanent resident relative who wants to petition for you, you must also be able to show that you are not "inadmissible" to the United States. Regardless of your family relationships, you can be denied a visa and green card due to inadmissibility, the idea being to protect the health, safety, and well-being of people within the United States.

Common ways that people become inadmissible include their:

How Long the Process Takes

The U.S. based petitioner will need to start the process (in most cases) by filing a visa petition on Form I-130. (In immediate relative cases, where the immigrant is already in the United States, the I-130 may be filed at the same time as the remaining parts of the application process that's described next.) Also, if the immigrant entered on a fiance visa and then got married, he or she can apply to adjust status (get a green card) without a Form I-130.

After the I-130 is approved (which usually takes at least a few months), what happens depends on the immigrant's family relationship and thus visa category. Immediate relatives can proceed to the next major step in the process, in which they file the application for an immigrant visa (if coming from overseas) or for adjustment of status (if in the United States and allowed to apply without leaving again). After filing their paperwork, they'll be called for an interview, usually after several weeks or months. The visa or green card decision is typically made at that interview.

If the immigrant is in a preference category, then he or she must wait until a visa is available, as determined by the person's "priority date" (the date on which the visa petition was filed.) Only then can the immigrant proceed to apply for an immigrant visa or adjustment of status. The waits can range from two to 24 years, with the longest waits usually faced by brothers and sisters (siblings) of U.S. citizens.

There's an important caution to be made here: Having an approved I-130 does not give an immigrant any rights to come to or continue living in the United States. It's only the first step in an often long and potentially costly process.

Within the preference categories, also realize the wait can be even longer for people from countries where a lot of people are applying for U.S. immigration, due to per-country limits. The longest waits tend to be for people from Mexico, India, the Philippines, and China.

If You Need Assistance or Legal Advice

Anyone considering petitioning for a family member can make the process much easier by consulting with an immigration attorney. The attorney can provide a full legal analysis of the case so that the handling of Form I-130, and subsequent steps in the immigration process, go smoothly.

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