November 3, 2008: Family Based Visa Petition Issues

Family Based Visa Petition Issues

If I am a US Citizen and I am filing an I-130 Petition for my father and my sister over 21, is it best to file one petition or separate petitions or should I wait until my father gets approved so that he can file for my sister? The waiting period for my sister is longer than the waiting period for my father.
— Anonymous

Assuming you are a United States citizen over the age of 21, and that you meet all of the requirements under the applicable immigration laws relating to filing for your respective family members, you are eligible to file separate I-130 petitions for your father and sister. Your father will be considered an “immediate relative” and he will be able to concurrently file applications for his green card and work permit if he is in the USA when you file the petition on his behalf, assuming he was inspected, admitted or paroled at his last entry. If the forms are properly filled out and the necessary supporting documents are properly attached, your father should become a permanent resident in less than one year.

He will be eligible to file for citizenship, if otherwise qualified, four years and nine months from the date his green card was approved. The Naturalization interview will take place approximately one year from the date of filing. Once your father becomes a Resident, then he could file an I-130 petition on your sister’s behalf, assuming she is not married. When he becomes a citizen, the petition gets upgraded, she would be in the first preference category. According to the November 2008 visa bulletin in the all chargeability column, visa numbers are available for first preference category petitions filed before May 1, 2002. This bulletin is basically irrelevant to your sister’s case because the petition will not be filed for approximately 6 years and it is impossible to predict what the backlog will be at that time. On another note, you may file a fourth preference relative petition on your sister’s behalf right now. However, she will not be eligible to concurrently file for her green card and work permit because a visa number will not be available.

According to the November 2008 visa bulletin in the all chargeability column, visa numbers are available for fourth preference category petition filed before November 5, 1997. With all of this being said, if your sister is presently in the United States, she will not be able to obtain a green card (either through you or your father) by remaining in the United States unless she is grandfathered under section 245(i) of the Immigration and Nationality Act.

As you can see, there are many potential issues that you need to consider and it would be wise for you to consult with an experienced immigration attorney before filing any paperwork with the United States Citizenship and Immigration Service.

Michael Shane and Evan Shane, Immigration Attorneys