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Congress, by conferring permanent residence eligibility upon certain family-based groups, has properly emphasized the importance of family unification in American immigration law. The preference system is a method, based on categories (or “preferences”), of distributing the limited number of immigrant visa numbers available each year.

Obtaining an immigrant visa number is an essential step in the immigration process, and it means that an immigrant visa has been assigned to you. The documentation needed for a family-based petition for permanent residence is the same as for immediate relative and family preference applicants. In short, the following is required:

Immediate Relatives:

§201(b) of the Immigration and Nationality Act (”INA”) defines “immediate relatives” to include:

  • a) Spouses,
  • b) Children (under the age of 21), and
  • c) Parents of U.S. citizens (if the citizens are at least 21years old).


In order to obtain immigration benefits available to a “spouse,” there must be a valid and subsisting marriage between the parties....


General The meaning of “child” is not as simple as it first appears. For the purposes of family-based immigration...


In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old.

This category is clearly reserved for immediate relatives of U.S. citizens, not permanent residents. There is no limit to the number of immediate relative visas that may be issued in this category in any given year.

family immigration - Berd & Klauss, PLLC

Derivative Status for Spouses & Children of Family Based Immigrants

The immediate relative category normally does not confer derivative status on a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. The only exception is for children of a widow or widower of a U.S. citizen. Notwithstanding the unavailability of derivative status, some family members of an immediate relative may be entitled independent immediate relative status.For example, an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary’s marriage to the petitioner will qualify as a stepchild.However, a separate visa petition must be filed for each immediate relative.

In contrast, the spouse or child of a preference immigrant accompanying or following to join him or her, is entitled to the same status and the same order of consideration as the principal immigrant. The derivative classification of such spouse or child attaches immediately upon approval of the principal alien’s classification, and requires no separate visa petition.

The Family-Based Preference Categories

Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of U.S. citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: a) spouses and minor children of permanent residents, and b) unmarried sons or daughters (but not their children) of permanent residents. A married son or daughter of the U.S. citizen falls under the third preference category. The fourth preference category permits U.S. citizens over the age of twenty-one to petition their brothers and sisters for permanent residence.

These preference categories are subject to annual visa limits. This means that there are visa backlogs in some preferences. Available visas are issued to beneficiaries in order of their priority date, which is the date that their petition for permanent residence is filed.
Preference categories for relatives of permanent residents have longer backlogs than preference categories for relatives of U.S. citizens. Also, India, Mexico and the Philippines have a higher demand for immigrant visas and are subject to country-specific annual limits. Country of birth is relevant rather than citizenship. Therefore, Canadians originally born in one of these countries will be placed on the longer country-specific waiting lists.

Priority dates do not necessarily progress in real time. For example, although the backlog for the family-based fourth preference may be 10 years, the actual wait is far longer. The rate of progression for priority dates often varies. In fact, as the end of each fiscal year approaches (September 30th), it is not unusual to see a retrogression in priority date. This is done to keep visa issuances within the annual numerical limitation.

Berd & Klauss, PLLC provides exceptional and experienced immigration attorneys to counsel international companies, small business and individuals in immigration matters which range from employment-based immigrant visas, non-immigrant work visas, marriage green cards and citizenship. Our lawyers are based in New York and can successfully represent individuals who wish to work in the U.S., such as foreign students looking for their first job after graduation.