Visa & More: Frequently Asked Questions

In the following, our experts will today answer questions concerning family-based immigration, especially about obtaining a green card by marriage to a US citizen. These are some of the typical question we are asked via the internet every day. In addition, we will explain some of the terms you will often come across applying for permanent residence and that will help you to better understand the process.

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YOUR QUESTION: What exactly is family-based immigration?

OUR ANSWER: The term "family-based immigration" describes all immigration processes that allow a foreign national to immigrate through a relative in the US. The relative, who must be a US citizen or a legal permanent resident, acts as a "sponsor," i.e. handles the application. The foreign national he or she applies for is called the "beneficiary." Foreign nationals cannot apply for family-based immigration by themselves.

YOUR QUESTION: Who can act as a sponsor?

OUR ANSWER: A US citizen, or a permanent resident/green card holder may act as a sponsor. Only certain degrees of family relationship qualify for family-based immigration. By the way, the sponsor has to sign an affidavit demonstrating an income at or above 125% of the federal poverty line. This will be valid for ten years and is legally enforceable for that time.

YOUR QUESTION: My wife and I are currently in the US. Our daughter (1-year old) was born in the US. Can we obtain a green card through her?

OUR ANSWER: No, unfortunately, you can't, not before your daughter has turned 21 and thus come of age in the US. Its is also required for her to fulfill the above mentioned income criteria before she may apply for you (the reason applications of this kind are usually not already submitted at the age of 21).

YOUR QUESTION: I am a green card holder living in the US. Can I apply for family-based immigration for my parents, who are living abroad?

OUR ANSWER: Unfortunately, only US citizens may file such an application. You could apply for naturalization, but that would mean that you would lose your German citizenship, unless you apply for permission to keep your German citizenship prior to applying for naturalization.

YOUR QUESTION: Who qualifies as a beneficiary?

OUR ANSWER: US law differentiates between immediate and non-immediate relatives. There is no limit to the number of available immigration visas for immediate relatives of a US citizen. Immediate relatives are parents, provided the child that acts as a sponsor is over 21 (as explained above). Please note that the other way around - i.e. parents living in the US and children abroad - no direct immigration is possible. The visas for this are subject to a quota. In addition, immediate relatives include spouses, widows/widowers and unmarried children under 21 of US citizens. There are no waiting times over several years for these categories. However, you should generally expect a total of 12 months for the immigration process itself.

Non-immediate relatives according to the above definition are divided into different groups with different preferences. These visas are subject to an annual numerical limitations that cannot be exceeded.

There are 4 preference categories:

1st Preference: Unmarried sons and daughters of US citizens, 2nd Preference: Spouses and unmarried sons and daughters of lawful permanent residents, 3rd Preference: Married sons and daughters of US citizens, 4th Preference: Brothers and sisters of US citizens.

YOUR QUESTION: How can the US sponsor initiate the family-based immigration process?

OUR ANSWER: There are two possible scenarios:

1. The future visa holder is already in the US: An immediate relative according to the above definition doesn't necessarily have to be in the US under a typical, long-term non-immigration status, e.g. on a work visa. The relative should, however, have entered the US legally, that is on a valid visa, which includes the Visa Waiver Program. In addition to the immigration application, an application for change of status must be filed in order to guarantee a legal stay. Applicants from any of the preference categories will always need a valid, long-term non-immigration status, e.g. the H, L, or E-visa in order to wait in the US for their visa number to be assigned and the green card to be issued.

2. The future visa holder is not in the US: In this case, the sponsor will apply in the US. As soon as he or she receives the notification of approval, the sponsor has to notify US Citizenship and Immigration Services as well as the National Visa Center that will send an information package. After the visa documentation has been submitted to the National Visa Center and has been processed there, the beneficiary will receive an interview appointment at his or her local US consulate that will then issue the immigrant visa. The beneficiary becomes a US immigrant upon entering the United States and will receive the Resident Alien Card (green card) within weeks after that.

YOUR QUESTION: What is the fiancé(e) visa (K-1)?

OUR ANSWER: The fiancé(e) visa is often said to be the visa for foreign spouses. However, the visa was mainly introduced in 1990 to faster unite foreign nationals with their US spouses without having to be married at the time of application. However, this time-saving advantage got lost with the high number of K-1 applications over the last years. The entire green card process causes significant delays, and there is an excessive amount of red tape, especially after entering the country. The process is initiated in the US with a petition issued by the future spouse. As soon as that is approved, the beneficiary will receive an approval notice that he/she can use to apply for the K-1 visa.
As opposed to petition I-130 for spouses, the real green card application process begins after the foreign fiancé(e) has entered the country and got married. A change of status application has to be filed, approval can take between 12 and 18 months.

The above mentioned process allows the foreign spouse to apply for a work permit, which will later be replaced by the Resident Alien Card.

YOUR QUESTION: I am a US citizen and I've filed a permanent residence application for my wife. She is still in Germany at present, but she would like to come to the US while the application is still pending. Is that possible?

OUR ANSWER: Yes, that is possible. You will have to file a petition for the K-3 status for your wife after receiving the acknowledgment of receipt for your I-130 petition. Once that has been approved, your wife may apply for the K-3 visa abroad. She may even apply for a work permit under the K-3 after entering the country.