USCIS categorizes family petitions into two separate categories.  The first category is that of Immediate Relatives. These include:

• the spouse of a United States citizen;
• the minor child (under 21 years of age) of a United States citizen; and
• the parent of a United States citizen.  However, the United States citizen must be at least 21 years of age in order to petition for his/her parent.

Individuals classified as immediate relatives are immediately eligible to adjust status to that of a lawful permanent resident.  If the applicant is in the United States, and was either admitted or paroled into the United States, the applicant may apply for legal permanent residency.  Note, however, persons who are admitted on certain nonimmigrant visas must be aware that the government will review a person’s entry and filing date to determine if there was a “preconceived intent” to file for legal permanent residency prior to entering the United States.  Preconceived intent is contrary to the law and may subject the applicant to a fraud charge.

Immediate relatives outside of the United States require consular processing to obtain legal permanent residency.  Once granted an immigrant visa, the applicant becomes a legal permanent resident upon entry into the United States.

The second category of family sponsorship is that of the Preferred Relative.  These individuals include:

• adult sons/daughters of United States citizens, who are either married or single;
• spouses and children of lawful permanent residents.  However, while a lawful permanent resident may sponsor a minor child or adult son/daughter, they may not sponsor any children who are married; and
• siblings of United States citizens.  The United States citizen must be at least 21 years of age.

Individuals classified as preferred relatives are not immediately eligible to adjust status to that of a lawful permanent resident. They must await the availability of a visa number, as issued by the U.S. Department of State. For a review of the timeframe of visa availability please visit the U.S. Department of State website.

There are various categories for granting permanent residence to foreign nationals based upon employment, or special classification in a category.  Some of these include:

EB-1 Priority Workers

• persons of extraordinary ability in the sciences, arts, education, business or athletics;
• outstanding professors or researchers; or
• managers and executives subject to international transfer to the United States.

EB-2 Professionals with Advanced Degrees or Persons with Exceptional Ability

• persons of exceptional ability in the sciences, arts or business;
• advanced degree professionals; or
• qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.

EB-3 Skilled or Professional Workers

• professionals with a bachelor’s degree;
• skilled workers (at least 2 years of training or job experience); or
• other workers (less than 2 years of training or job experience).

EB-4 Special Immigrants

• religious workers;
• special immigrant juveniles;
• broadcasters;
• G-4 International Organization or NATO-6 employees and their family members;
• international employees of the U.S. government abroad;
• armed forces members;
• Panama Canal Zone employees;
• certain physicians;
• Afghan and Iraqi translators; or
• Afghan and Iraqi nationals who have provided faith service in support of U.S. operations.

Often, there are obstacles to an applicant adjusting their status to that of a lawful permanent resident.  Per the Immigration and Nationality Act, an individual who entered the United States without authorization may not adjust status in the United States. Additionally, any individual, apart from immediate relatives, who did not maintain authorized stay after entry, will be deemed ineligible to apply for legal permanent residency in the United States.

In an effort to ameliorate this predicament, the U.S. government has made exceptions to these bars to adjustment of status by way of § 245(i) of the Immigration and Nationality Act.  Generally, to qualify under § 245(i), an individual must demonstrate certain petitions were filed on their behalf prior to April 30, 2001, and that they were physically present in the United States on December 21, 2000.  Determining whether an individual is grandfathered under § 245(i) can be a complicated and daunting task. Many individuals are unaware that the protection under the law can be acquired derivatively, i.e., through a parent, or that they may be exempt from the physical presence requirement of the law. Should you need assistance in this regard, Diaz Shafer, P.A. is both capable and willing to assist you with this matter.

The Immigration and Nationality Act defines a child as a person who is both unmarried and under 21 years of age. If an individual applies for legal permanent residency status as a child but turns 21 before being approved for residency, that individual will no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to obtain legal permanent residency, or may no longer be eligible for legal permanent residency at all.

Because Congress recognized that many children were aging out due to large USCIS processing backlogs, it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.

The CSPA provides a method for calculating a person’s age so that they meet the definition of a child for immigration purposes. This method allows some applicants to remain classified as children beyond their 21st birthday. It is important to note, however, that the CSPA does not change the requirement that an applicant must be unmarried in order to remain eligible for classification as a child.