When a US Citizen sponsors her parents for an immigrant visa, can her sibling get one too?

QUESTION: I have a US citizen daughter and she will be 21 years old soon. We know that when she is 21 she will be able to sponsor me and my wife, but we have another child who will be 10 years old by that time. Will we be able to apply for us and our youngest child through one application, or are we going to have to make separated applications?

September 11, 2017

ARI SAUER – THE IMMIGRATION ANSWER MAN: You are correct that US citizens can apply to sponsor their foreign national parents for US Permanent Residence (green card) once the US citizen son or daughter is 21 years old or older. Parents of US citizens who are sponsored by their US citizen sons or daughters fall within a category called Immediate Relatives. Other individuals that fall within the Immediate Relative category are spouses of US citizens and unmarried children of US citizens where the child is under the age of 21.

The benefit of being an Immediate Relative is that there is currently no limit on the number of visas that can be issued to those who are being sponsored by their US citizen relative in the Immediate Relative category. This means that Immediate Relatives do not have the wait for a visa to become available, that most other visa preference categories have. You can see my other posts about visa wait times and the DOS Visa Bulletin.

But the one downside of the Immediate Relative category is that Immediate Relatives are not allowed to have derivative beneficiaries, meaning that spouses and minor children of Immediate Relatives are not eligible to obtain Permanent Residence through Adjustment of Status (I-485) or an Immigrant Visa along with their US citizen spouse or parent.

So a US citizen can file an Immediate Relative petition for her parents. A separate petition would be required for each parent. But where the parents have another child, that child is not able to benefit from the petition filed for the parents and cannot come to the US as a permanent resident with his/her parents.

A US Citizen can file a petition for their sibling, under the Family Fourth (F-4) preference category. But the wait time for a visa to become available for the petition (currently more than a decade) makes it so that this is not a viable solution to this problem.

However, once the parent comes to the US as a Permanent Resident, they can file an immigrant petition for their unmarried child who is under 21, under the Family Based Second Preference (F2A). It takes some time, currently a couple years, for a visa to become available under the F2A preference category, so some families will leave the younger child with a family member while both parents go to the US as Permanent Residents and file a petition(s) for the younger child, other families will have one parent go to the US and file a petition for both their spouse and the younger sibling. You should be warned that one is required to maintain the US as their permanent residence in order to maintain the legal immigration status of US permanent residence. Parents, for example, who come to the US to obtain permanent residence only to then move back to their home country to live and wait for a visa for their spouse or child risk the US government determining this move to be a failure to maintain the US as their permanent residence, constituting an abandonment of their US permanent residence.

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Published 7/20/17 by attorney Ari Sauer.

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