Why can some family members apply for their green card right away while some are required to wait years?

Why can some family members apply for their green card immediately while some are required to wait years?

In order to determine whether your case is one where an immediate application for the green card is permitted or a case where there is a waiting period before applying for the green card, you first must determine the family category you and your loved one fall under immigration regulations. There are eight different categories of family members that can be petitioned by a US Citizen or Legal Permanent Resident. Three are known as immediate relatives which are comprised of U.S. Citizen parents petitioning for children under 21 years of age; US Citizen sons and daughters 21 years of age or older petitioning for their parents and US Citizens petitioning for their Spouses.

The next five categories include the F-1 category comprised of US Citizen parents petitioning for their sons and daughters 21 years or older who are single. The F-2A category comprised of Legal Permanent Resident parents petitioning for children under 21 years of age and Legal Permanent Residents petitioning for their Spouses. The F-2B category comprised of Legal Permanent Resident parents applying for their sons and daughters 21 years of age or older, who must be single. The F-3 category comprised of US Citizen parents petitioning for sons and daughters 21 years or older who are married. Finally the F-4 category is comprised of  US Citizens petitioning for their siblings. All of these categories involve the filing of what is known as the I-130 petition which is either the first petition filed in the process or the petition filed with the green card application.

The distinction between categories is important because except for the immediate relatives all the other non immediate relative categories or  preference categories have a limited amount of visas allocated by Congress and the demand for these visas determines whether a specific category has a waiting period. If there is a high demand for visas, the family category will likely be backlogged and there is a virtual line to wait on before your turn comes in line by a visa becoming available.  Immediate relatives are not subject to visa quotas and can immediately apply for their green card together with the I-130 petition if applying in the United States under the Adjustment of Status process or right after the I-130 is approved if applying for the green card outside the United States through the Immigrant Visa process.

There are preference categories that have such a high demand that they have to wait over 20 years before they are allowed to file for their respective green card process. The position in line is determined by the Department of State which publishes a visa bulletin every month. This bulletin reveals the cutoff or priority date being processed for the different family categories in five different regions in the world which are comprised of All other areas of the world; China; India; Mexico and Philippines. This priority date is the date the petition is mailed to the Immigration Service. If your priority date matches or is older than the priority date listed in the bulletin for your family category and country/ region, your priority date is current and you can apply for your green card. If your priority date is newer than the priority date listed on the bulletin then you continue to wait in line.

As of this posting, the F-2A category is current, so their is no backlog and therefore no wait in line. These  families  can proceed as if they were immediate relatives. What that means is that if you are a couple where a spouse is a Legal Permanent Resident or if you are a parent who is a Legal Permanent Resident and have a child under 21 years of age, the time to apply for the green card is now. The reason you should start the process now is that there is a good possibility that this category may be backlogged once again relatively soon because the demand for visas will again exceed the supply of visas. Once the Department of State notices that the I-130 petitions filed exceed the number of visas available for a given country, the Department of State will likely retrogress the F2A category to allow the demand to catch up to the supply. Retrogression means that the Department of State moves the cut-off or priority date backward, so if today the F2A category is current, next month it may be retrogressed months if not years.

When retrogression happens the family once again has to wait in line until the priority date is announced as current before applying for the actual green card. This could also affect those who have applied for a green card since their case will be placed on hold until the priority date is announced as current again.

Filing now is recommended because there may be a chance you could complete the process before retrogression or at least hold your place in line if and when retrogression occurs so you will likely complete the process much sooner than families who petition after retrogression. Finally, if you are applying for adjustment of status where you apply for your green card from within the United States, you are eligible to apply and will receive an Employment Authorization Document you can maintain and extend while you wait for your priority date to become current again, but that is only if you had filed for the I-130 and the green card using form I-485 before retrogression occurs. This is not the case for individuals applying for their green card outside the United States through the Immigrant Visa process.

If you and your loved one are in the F2A category or have any questions regarding the green card process, I suggest you contact an experienced attorney right away. Of course we’re just a phone call away and would also be happy to answer any questions you may have regarding this process and remember our first consultation is always free.