The Family-Based Preference System

September 25, 2014 2:25 pm
by David Jakeman

Many family based immigrants fall into the preference category system. Under the law, only a maximum of 226,000 of these visas, spread across all four family-based preferences, are made available each year. See INA § 201(c)(1)(B)(ii). Once one of these visas becomes available, an immigrant can then submit a petition. If the petition is approved, the immigrant becomes a lawful permanent resident (LPR) which is evidenced by a green card.

Because the family-based preference visas are subject to a numerical cap, some immigrants have to wait for a long time before a visa becomes available. Sometimes, the wait can take years. Accordingly, it is recommended that an immigrant use the assistance of an immigration lawyer when looking to obtain a green card through this process.

What are the family-based preferences?

The family-based preferences break down into four categories, as provided in the Immigration and Naturalization Act (INA), section 203.1

1) First Preference: This preference is reserved for the unmarried sons and daughters of United States citizens. Note how this did not say the “children” of United States citizens. The word “child” is a legal term of art in immigration law, meaning it has a specialized definition. Thus, this group includes the sons and daughters of U.S. citizens who are 21 years of age or older. Those younger than 21 and unmarried are considered “children” and would be characterized as “immediate relatives” which is a separate family-based immigrant category. There are 23,400 visas available in this group, plus any unused visas from the fourth preference listed below.

2) Second Preference: This group is divided into two. The first group (2A) is for the spouses and unmarried children of LPR’s. The second group (2B) is for the unmarried sons and daughters of LPR’s. Thus, 2A mirrors the definition of “immediate relative,” except that 2A’s are relatives of LPR’s instead of U.S. citizens. 2B mirrors the definition of the first preference, except that 2B’s are the adult sons and daughters of LPR’s instead of U.S. citizens. 114,200 visas are made available for both groups, plus any unused visas from the first preference. However, 77 percent of those visas are reserved for 2A.

3) Third Preference: The third preference is reserved for the married sons and daughters of United States citizens, regardless of their age. There are 23,400 visas available in this group, plus any unused visas from the first or second preferences.

4) Fourth Preference: The final preference is for the siblings of adult (21 or older) U.S. citizens and there are 65,000 visas available for this category, plus any unused visas from all three of the preceding preferences. Note that there is no preference category for the siblings of LPR’s.

Once the appropriate family-based visa becomes available, the immigrant can submit his petition either through adjustment of status if he is legally living in the United States or through consular processing if living abroad.