It takes many years of waiting for a visa for a sister, brother, married son or daughter, or even an unmarried child over 21. But the sooner you start, the sooner the visa will be available. Also, if and when the U.S. changes the immigration laws, it’s quite likely some of these categories will disappear. Why does it take so long to get a visa in these categories? Because there are strict quotas and there is no way to speed up those dates, no matter how desperate you are.
Only a U.S. citizen can file for a sister, brother or married son or daughter. A green card holder can file for an unmarried son or daughter over 21 but that child must not marry until the green card holder becomes a U.S. citizen, or the petition will be revoked (terminated). If you are not yet a citizen, apply as soon as you are eligible. You will also be able to sponsor your parent once you’re a citizen. See our page on citizenship. Also look through prior blog posts and around the site; there’s a lot of free information here.
It’s important to know your visa category so you can determine how long you’ll wait. Those discussed here are called “preference categories” and include:
- F1 or First Preference: Unmarried sons and daughters over 21 of U.S. citizens
- F2B or Second Preference B: Unmarried sons and daughter over 21 of U.S. Legal Permanent Residents (LPRs)
- F3 or Third Preference: Married sons and daughters of U.S. citizens, their spouses and their minor children
- F4 or Fourth Preference: Brothers and sisters of adult (over 21) U.S. citizens, their spouses and their minor children
Getting a visa for a sibling or adult son or daughter who lives abroad is a two-step process called consular processing. You can find detailed information on the entire immigrant visa process at the State Department’s website. It’s very important to check on legal problems before you file. For example, if the U.S. citizen has certain criminal convictions, s/he may not be able to sponsor a family member at all. If your relative has arrests or convictions anywhere in the world, has overstayed a U.S. visa in the past, has a health problem, and for many other reasons, s/he may have trouble later when s/he applies for the visa at the consulate. Waivers may be eligible; legal advice is strongly recommended.
If you decide to file on your own, here’s an overview. The U.S. citizen or LPR is the Petitioner. The foreign relative is the Beneficiary or Applicant. The spouse or child of the beneficiary is a derivative.
Step One – File the I-130 Petition
- File an I-130 petition with the United States Citizenship and Immigration Services or USCIS. You will file this by mail and will pay the government filing fee of $535. Spouses and children under 21 can be included in the petition, or added later. [Note – citizens who petition a foreign spouse and his/her minor child must file a separate I-130 for each person, and pay the current filing fee of $535 for each.]
- Supporting documents: You have to file photocopies of certain documents along with the I-130. If citizenship is required to file, you must prove you are a U.S. citizen (a copy of your U.S. birth certificate, passport or Naturalization Certificate will work). You always have to prove you are related to the foreign relative such as with birth certificates to show you have the same parents. If either you or your sibling was adopted, seek legal advice to see if you qualify to file.
- USCIS then reviews the petition and evidence. They will mail you a receipt notice when you first file which will include the “Priority Date.” This is the official filing date and is very important to remember. See Step Two for more information on the Priority Date.
- If your evidence supports the petition, they will approve it. If they need more evidence to verify the relationship or for other reasons, they will write you with a “Request for Evidence” (RFE) with a deadline to submit it. Don’t panic if you receive an RFE but be sure to submit the evidence before the deadline. It can take years for your approval. Petitions are reviewed at USCIS Service Centers around the country and their timeframe for processing varies for these visa categories – from 5 months to several years. Remember, this is just for the initial approval of the petition; this does NOT mean a visa is available or an interview will be scheduled.
- Your petition will then be sent to the National Visa Center (NVC) in New Hampshire. They will notify you they received the file, but if a visa is not available the NVC will just store the records until closer to the date a visa is available. Make sure the petitioner and the beneficiary (the foreign relative) keep their addresses updated with the NVC and USCIS.
Step Two – NVC Processing and the Interview Abroad
- When will you hear from the NVC again? It takes years – as of 2019, anywhere from 8 to almost 25 years – for visas in these categories to be available. The wait depends on your category and your country. You can check the dates, which are updated monthly, at the State Department’s Visa Bulletin page. You need to know your priority date and visa category.
- When your visa category s getting closer to becoming available or “current,” according to the government, the NVC will start to prepare your file for the interview at the consulate. The NVC does not decide whether a visa will be granted; the NVC’s role is to make sure the documents are in order for the consulate abroad. The NVC is moving to all-electronic processing but for some countries you may still have to submit paper documents. Go to the State Department’s page for full details of the documents and fees that will be required. Broadly, they require the petitioner and a joint sponsor if needed to file an Affidavit of Support and financial documents, and for the Applicant/Beneficiary (the foreign relative) to submit information on him or herself and each family member.
- Once the NVC completes their processing and the visa is almost available, they will schedule an interview for you at the consulate or embassy and then forward the file to the consulate. At that time you will need to have your medical examination abroad.
- Many different problems can occur in this entire process. Don’t ignore these problems; it could lead to denial of your visa. Some include the following.
- If the petitioner dies before the interview, the petition will be automatically revoked. You may be able to continue if you qualify for humanitarian reinstatement or other provisions of the Immigration and Nationality Act. See my previous post on humanitarian reinstatement for more information. It’s a good idea to have more than one sibling or parent file a petition for you from the beginning to prevent this happening. You can have more than one petition filed on your behalf.
- A child turns 21 or “ages out.” If a green card holder files for a child under 21 (this is the F2A category), the category will automatically be changed to F2B or F1 when the child turns 21. The children of LPRs cannot marry until the LPR naturalizes. The situation is more complicated for a derivative, i.e. the grandchild or niece or nephew of the U.S. petitioner. The Child Status Protection Act (CSPA) may allow the over-21 child to still be eligible. According to USCIS, “CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.” This is a little hard to understand. Here’s an example. Let’s say the I-130 petition was filed in January 2005 but was not approved by USCIS until January 2007 due to their backlog – a delay of 2 years. If a visa becomes available many years later when the child is 22, s/he can deduct two years – the length of the delay – from his/her actual age, so she’ll be considered to be 20 and will still be eligible. You can’t predict whether this will apply because you have to see when the visa becomes available or current (see above). Pleading with the consulate won’t help; they are required to comply with the law. And the child must apply for the visa within a year of it becoming available.
- The applicant may be inadmissible under U.S. law due to criminal behavior, previous overstays in the U.S., medical issues or other problems. The Trump administration is taking a very hard look at the applicant’s finances. It used to be enough to have a good financial sponsor file an Affidavit of Support. That’s no longer the case, especially for older applicants such as siblings and parents. If you think there is going to be a problem due to one of these issues, it’s best to get legal advice on what you can do to prepare the best possible case, and whether you can apply in writing for a waiver or exception. There are many grounds of inadmissibility and possible waivers and it’s more than a matter of just stating your case at your interview.
- Always be honest! Often the worst problems happen because an applicant hopes the consulate won’t discover a problem in their past. It’s always a good idea to tell the truth both in the documents and in person; if you don’t you can end up with more problems.
Does it help to have an immigration lawyer represent you? As I wrote in another post: Of course it does (what did you think I would say!). Many documents and forms are required and most people, even very smart and highly-educated people, find the whole process quite confusing. You’ll probably go through the green card process once or at most a few times in your life, whereas immigration lawyers have experience and knowledge. You’re going to save yourself a lot of time, money and heartache by exploring any possible problems with a good immigration lawyer, and preventing problems from the start. Fees depend on the complexity of the issue but paying for an attorney will often be less costly in the long run than trying to fix a problem later.
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