Introduction
A U.S. citizen or lawful permanent resident may file a Petition for Alien Relative (Form I-130) with the U.S. Citizenship & Immigration Service to establish their relationship to certain alien relatives who wish to immigrate to the U.S.
NOTE: A separate form must be filed for each eligible relative. USCIS generally processes the Form I-130, Petition for Alien Relative, on a first in, first out basis within the preference categories. The filing and approval of an I-130, however, is only the first step in helping a relative immigrate to the United States. Certain family members must wait until there is a visa number available before they can apply for an immigrant visa or file for adjustment of status to a lawful permanent resident.
Requirements For The I-130 Immigrant Visa Petition
A. Qualifying Relationships For Eligibility To File A Form I-130:
The following categories are eligible for a Petition for Alien Relative, Form I-130:
1. The Qualifying Relatives of U.S. Citizens:
i. Spouse
ii. Unmarried children (under age 21)
iii. Parents
iv. Unmarried sons and daughters (age 21 or older)
v. Married sons and daughters of any age, and
vi. Brothers and sisters
NOTE 1: The U.S. citizen may file the I-130 petition for any of the above listed family members provided the U.S. citizen is age 21 or older, except for a spouse where, technically, there is no minimum age.
NOTE 2: Spouses, Unmarried Children (under age 21), and Parents of U.S. citizens are all “immediate relatives” and are not subject to any quotas so a visa is always available for them. All others are in “preference” categories and are subject to quotas so they must wait for a visa to become available before they can become permanent residents.
NOTE 3: The spouse and children under 21 of brothers and sisters and married sons and daughters and children under 21 of unmarried sons and daughters are permitted “follow-to-join” the qualifying relative. This means that a separate Form I-130 do not have to be filed for these dependent relatives. The spouse and children of immediate relatives, however, are not permitted to follow-to-join and must be petitioned for separately.
2. The Qualifying Relatives of Permanent Residents (Green Card Holders):
i. Spouse
ii. Unmarried children (under age 21)
iii. Unmarried sons and daughters (age 21 or older)
NOTE 1: Married sons and daughters are not qualifying relatives of permanent residents. If an unmarried son or daughter of a permanent resident marries before the permanent resident becomes a U.S. citizen, any petition filed for that son or daughter will be automatically revoked. Otherwise, a legal permanent resident parent must become a U.S. citizen before they can file a petition for a married son or daughter.
NOTE 2: Parents are not qualifying relatives for permanent residents. A permanent resident must become a U.S. citizen before they can file a petition for a parent.
NOTE 3: All qualifying relatives of permanent residents are in preference categories and must wait for a visa to become available before they can become permanent residents.
Click here to view the chart showing the preference categories of relatives and processing times
B. Non-Qualifying Relationships/Ineligibility To File A Form I-130:
A U.S. citizen or legal permanent resident may not file I-130 for his or her relative in the following categories or circumstances:
1. An adopted child, if the adoption was final after the child’s 16th birthday, or if the child has not been in the legal and physical custody of the parent(s) for at least two years.
2. A stepchild, if the marriage that created the relationship took place after the child’s 18th birthday.
3. A spouse, if either spouse was not physically present at the marriage ceremony (i.e., a proxy marriage), and the marriage has not been consummated.
4. A spouse, if the U.S. citizen or LPR spouse gained lawful permanent resident status by virtue of a prior marriage to a U.S. citizen or lawful permanent resident, unless
i. A period of five years has elapsed since the U.S. spouse became a lawful permanent resident or
ii. The U.S. spouse can establish by clear and convincing evidence that the prior marriage through which the spouse gained their immigrant status was not entered into for the purpose of evading any provision of U.S. immigration laws or
iii. The U.S. spouse’s prior marriage through which he or she gained immigrant status was terminated by the death of his or her former spouse
5. A spouse, if at the time of the marriage the foreign national spouse is the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into, or to remain in, the United States, or while a decision in any of these proceedings is before any court on judicial review, unless:
i. The spouse proves by clear and convincing evidence that the marriage is legally valid where it took place, and that the U.S. citizen and foreign national spouse married in good faith and not for the purpose of procuring the admission of the foreign national husband or wife as an immigrant, and that no fee or any other consideration (other than appropriate attorney fees) was given for filing of the petition or
ii. The foreign national husband or wife has lived outside the United States, after the marriage took place, for a period of at least two years
6. A spouse, if it has been legally determined that such foreign national spouse has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
7. A grandparent, grandchild, nephew, niece, uncle, aunt, cousin, or in-law.
A U.S. citizen may not file I-130 for his or her relative in the following categories or circumstances:
- A natural parent, if the U.S. citizen son or daughter filing the petition gained permanent residence through adoption.
- A step-parent, if the marriage that created the relationship took place after the child’s 18th birthday.
NOTE 1: If the alien relative is unlawfully present in the U.S., a Form I-130 can still be filed on their behalf; however, the foreign national may need to obtain a waiver before adjusting their status. Immediate relatives of U.S. citizens (spouse, children under 21 and parents) who are unlawfully present should be able to adjust status to that of permanent resident without having to obtain a waiver as long as they entered the U.S. legally.
NOTE 2: If the alien relative was a J-1 or J-2 exchange visitor who must comply with the two-year foreign residence requirement, and he or she has not met the requirement or has not been granted a waiver, a Form I-130 can still be filed on his or her behalf. These individuals, however, cannot receive permanent residence unless the two-year foreign residence requirement has been met or a waiver has been granted.
I-130 And K3 Visa Comparison
| Features | I-130 | K3 Visa |
|---|---|---|
| Type | Immigrant petition | Nonimmigrant petition |
| Filing location | USCIS | USCIS |
| Form | I-130 | I-130 and I-129F |
| Processing time | 6 to 12 months for the immigrant petition and to obtain the immigrant visa for immediate relative but 2-20 additional years to get the immigrant visa for relatives in the preference categories because of limited visa availability. | 6 to 9 months for petition processing and to obtain the K-3 visa. |
| Number of Entries Validity | Multiple | Multiple |
| Visa obtained from the Consulate is valid for 6 months. N/A for AOS applicants |
Visa is valid for 24 months. | |
| Authorized Stay | Permanent, but if the marriage is less than 2 years old when the green card is issued, 2 years | Up to 2 years |
| Can file from inside the U.S. Beneficiary | Yes | No |
| Any qualifying relative of a U.S. Citizen or Legal Permanent Resident | Spouse of US Citizen |
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