Family-Based Petition via Son or Daughter

Route

Immigrant Visas

Description

Only a U.S. citizen adult son or daughter, above the age of 21 years old, may be eligible to file a petition on behalf of a Migrant parent residing in the United States or abroad. The U.S. citizen will be required to file independent petitions for each qualifying Migrant parent. A family-based petition is composed of a multi-step process and immigration paths may vary depending on important factors related to the Migrant parent’s visa current residence location, method of entry into the United States, prior immigration and/or criminal history. Regardless of the immigration path that Petitioner and Migrant parent may follow, the filing of an initial petition is a necessary step to initiate an immigration case with U.S. Citizenship and Immigration Services (USCIS).

In the situation where the Migrant parent resides abroad, the U.S. citizen will be required to submit the petition to USCIS along all other supporting documentation. The initial documentation submitted must verify the legitimacy of the relationship between the U.S. citizen and the Migrant parent, either by birth, adoption, or parents’ marriages. Once USCIS processes the petition, a receipt notice will be mailed to the U.S. citizen’s address of record. It is very important to safely retain record of this notice as it includes important information regarding receipt number, priority date, class request, etc. Post-petition approval, USCIS will transfer the case to the Department of State National Visa Center (NVC) for further processing.

In the situation where the Migrant parent is legally in the United States and is not found to be inadmissible to the United States, the Migrant parent may be eligible to file for adjustment of status concurrently with the petition. The process will facilitate the Migrant parents’ ability to obtain a work authorization document (EAD) while the processing of a green card is pending. The U.S. citizen adult son or daughter along the Migrant parent will be able to attend an interview to obtain adjudication on the petition and adjustment of status.

A Migrant parent may also qualify for adjustment of status under Section 245(i) of the immigration law even if entry to the United States was initially without inspection. Therefore, the petition and the adjustment of status application may be filed concurrently with USCIS. In order to be eligible under 245(i), the Migrant parent must have been physically present in the United States on December 21, 2000 and must have been the principal or derivative beneficiary of a petition/labor certification filed on or before April 30, 2001. It is important to provide substantial documentation to comply with both requirements in order to avoid a potential application denial. The Migrant parent will then continue with the process described above and attend an interview appointment to adjudicate all pending applications. Unfortunately, if the Migrant parent remained in the United State post entry without inspection and fails to meet 245(i) requirements, consular processing at a U.S. embassy or consular office abroad may be the most viable option. However, additional services may be required that include the filing of a Waiver(s) and/or motion(s) with an immigration court. It is recommended that the Migrant parent be guided and/or supported by a licensed attorney and/or an accredited legal representative prior to any action taken at a consular process level. With legal guidance, the Migrant parent will be able to verify qualification for a waiver to be able to secure departure from the United States and be able to attend an interview abroad for further processing. Upon approval of an immigrant visa, the Migrant parent will be able to re-enter the United States under lawful permanent residence and obtain a green card.

At the consular processing stage, additional forms and documentation filings may be required in order for an interview to be scheduled at a U.S. embassy or consular office abroad. A straightforward process can be anticipated if the Migrant parent does not have any unfavorable factors that may potentially impact a petition approval. The Migrant parent will be required to obtain a medical examination and attend a consular processing interview to finalize this multi-step process. Upon case approval and return of a sealed passport containing a valid visa, the Migrant parent will be able to travel to the United States under an immigrant visa. An inspection by a U.S. Customs and Border Protection (CBP) officer at a port of entry will establish a legal entry and lawful permanent status in the United States.

Benefits

The filing or the approval of the petition does not grant the Migrant parent legal status or an immediate immigration benefit in the United States. However, once the Migrant parent successfully navigates through the multi-step process and obtains approval of an adjustment of status with USCIS or an immigrant visa at U.S. embassy or consular office abroad, the Migrant parent is able to obtain lawful permanent status.

Green cards are mailed to the address of preference detailed on the forms filed either with USCIS or the U.S. embassy or consular office abroad. In the past, a social security number was also generated and automatically mailed to the client. In some cases, the Migrant parent may be required to request a social security independently at a local Social Security Office.

Derivative Dependents

When a U.S. citizen files a petition on behalf of a Migrant parent, no additional derivative dependents may be included as part of the petition. The Migrant parent’s spouse, children, and parents cannot be included. However, the U.S. citizen may simultaneously file independent petitions on behalf of qualifying relatives.

Process Description

A family-based petition is a multi-step process that involves agencies like the United States Citizenship and Immigration Services (USCIS), Department of State National Visa Center (NVC), U.S. embassy or consular office abroad as well as U.S. Customs and Border Protection (CBP). A petition filed with USCIS by a U.S. citizen on behalf of a Migrant parent, may be processed and approved within 12-24 months. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact).       

At a consular processing level, post-petition approval, there may be an additional wait time of 12 months prior to obtaining an interview an U.S. embassy and/or consular office abroad. For cases requiring waiver(s) and/or additional filings at the immigration court level, there may be a significant longer time. (Please note that at this time, times may vary significantly due to the ongoing pandemic impact).

Unfavorable Circumstances

For some individuals, immigration is a complex process to navigate through due to the strict requirements and interpretation of the law. A Migrant parent’s criminal history and/or previous immigration history related to illegal entries, prior deportations, and/or previous immigration benefit denials, may negatively impact a petition. Although, some factors may not necessarily cause the denial of a petition, it is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish best course of action. A legal attorney may be able to assess the Migrant parent’s circumstances accordingly to the law, immigration bars, and restrictions.

Relevant Links List

Name Description Website
USCIS Processing Times Website contains details regarding immigration cases processing times. https://egov.uscis.gov/processing-times/

Citations

Family-based petitions on behalf of a Migrant parent are processed and adjudicated under strict eligibility. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable law and regulations include:

Citations List

Citations Description Section Title
8 CFR § 245.1 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Eligibility
8 CFR § 204.2 Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Petitions for Relatives, Widows and Widowers, and Abused Spouses and Children
INA § 212 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission; Waivers of Inadmissibility
INA § 245 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. (Adjustment of Status of Nonimmigrant to that of Person Admitted for Permanent Residence)
INA § 201 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Worldwide Level of Immigration
INA § 203 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Allocation of Immigrant Visas

Forms

Related Forms List

Name Description No. Fee
Affidavit of Support Under Section 213A of the INA On a case-by-case scenario, an Affidavit of Support Under Section 213A of the INA may be required for filing with U.S. Citizenship and Immigration Services (USCIS) and/or the Department of State National Visa Center (NVC). I-864 $0
Application for Employment Authorization An Application for Employment Authorization form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the Migrant Spouse to obtain an employment authorization document. The filing fee may be waived if it's an initial request under adjustment of status). I-765 $410
Application to Register Permanent Residence or Adjust Status An Application to Register Permanent Residence or Adjust Status form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of the Migrant Spouse to obtain a green card. I-485 $750 - $1,225
Contract Between Sponsor and Household Member On a case-by-case scenario, a Contract Between Sponsor and Household Member may be required if Sponsor does not meet the financial requirements on his own. A household member's financials may be considered if residing at the same domicile of the Sponsor and holds legal status for employment. I-864A $0
Petition for Alien Relative A Petition for Alien Relative form should be filed with U.S. Citizenship and Immigration Services (USCIS) for the purpose of petitioning on behalf of a qualifying immediate family member. I-130 $535
Report of Medical Examination and Vaccination Record A medical examination form is to be completed by the Migrant Spouse and the authorized civil surgeon to establish admissibility under health grounds. I-693 $0

Supporting Documents

For an initial filing of a family-based petition on behalf of a Migrant parent, supporting documentation will be required to establish relationship and identity. Some of the supporting documentation may include:

Supporting Documents List

Name Description
Passport-Style Photographs Passport-styles photographs must comply with USCIS' requirements related to sizing, position, and color.
Personal Documentation Personal documentation must be submitted to verify the Sponsor's and Migrant's identity. Personal documentation includes birth certificates, passport biographical pages, identification IDs. All documentation must be in compliance with the U.S. Department of State - Bureau of Consular Affairs which requirements vary by country.
Proof of Bona Fide Relationship
Proof of Legal Adoption
Proof of Parents' Marriages
U.S. Legal Status Verification Proof of legal status is required to ensure Sponsor's eligibility. Sponsor may provide a valid U.S. passport, U.S. birth certificate and/or a U.S. naturalization certificate.