Immigration based on a family relationship is a difficult and complex area of immigration law. While legislation such as the recently discontinued 245(i) has helped to ease the difficulty inherent in this specific area, many important issues and points need to be considered when commencing the family-sponsored immigration process. In effect since 1991, the current U.S. immigration selection system contains two main attributes. The first main feature is the implementation of a numerical cap for all immigration exclusive of the admission of refugees and adjustment of asylees, the adjustment of legalized aliens to permanent residents, and the recording of permanent resident aliens whose deportation is cancelled/suspended or who qualify for registry. The second essential feature is the separation of immigrants into subcategories, consequently ensuring that immigration within one category will not affect the availability of visa numbers under the other categories. Presently, the three primary categories for permanent residence immigration are family-sponsored, employment-based, and diversity immigrants.

General Family-Sponsored Immigration Process

• The USCIS must approve an immigrant visa petition, I-130 Petition for Alien Relative. This petition is filed by the relative sponsor and must be accompanied by proof of his/her relationship to the requesting relative.
• The Department of State must determine if an immigrant visa number is immediately available to the beneficiary, the foreign national, even if he/she is already in the United States. When an immigrant visa number becomes immediately available to him/her, it means that he/she can apply to have one of the immigrant visa numbers assigned to them. The status of a visa number can be checked in the Department of State's Visa Bulletin.
• If the alien is already in the United States, he/she may apply to adjust status to that of a lawful permanent resident after a visa number becomes available. This is one way the alien relative can apply to secure an immigrant visa number. If the alien is outside the United States when an immigrant visa number becomes available, he/she must then go to the U.S. consulate having jurisdiction over the area in which they are residing to complete processing. This is the other method in which the alien relative can apply to secure an immigrant visa number.

Who May File

1. Most Petitions: Generally, the U.S. citizen or lawful permanent resident files the I-130 Petition for Alien Relative requesting that the INS confirm that the alien, who is the designated beneficiary, is an immediate relative or is within one of the family preferences and therefore qualifies to apply for an immigrant visa.
2. Widows or Widowers
3. Battered Spouses and Children 

Family-Sponsored Numerical Cap

Preference Categories for Qualifying Family Relationships

"Conditional Residency" and Marriage

For those individuals granted legal residency on the basis of marriage to a U.S. citizen or lawful, permanent resident, the "Conditional Residency" regulation may apply. If, at the time of the adjustment of status interview or application for admission to the United States, the underlying marriage is less than two years old, the immigrant status is granted for a conditional two-year period. The conditional residence subsequently expires on the second anniversary of the date the residency was approved, not two years from the date of marriage. In order to convert to unrestricted permanent residence status, the petitioner and beneficiary must submit a Joint Petition to Remove Conditional Residency (Form I-751) together with supporting documents that prove that the marriage was bona fide.

Because of the opportunity for immigration fraud through sham marriages and other forms of invalid and nonviable marriages, as a general policy, the USCIS carefully scrutinizes the "spouse" family-sponsored preference category.