Coming to America
Houston attorney Charles Foster explains how to help a family member immigrate to the U.S.
on August 17, 2021
Updated on August 18, 2021
Immigrating to the U.S. can be a daunting prospect. The most common way to achieve permanent residency, by far, is through family sponsorship. Nearly 70% of new legal immigrants applied through family sponsorship in 2019, according to U.S. Department of Homeland Security figures.
But a potential immigrant’s relationship to the sponsoring U.S. citizen makes a big difference. “It is much easier to qualify for lawful permanent residency based upon a bona fide marriage to a U.S. citizen than any other option from qualifying, be it through family members or employment or investment,” says Charles C. Foster, who practices immigration law at Foster in Houston.
For spouses of U.S. citizens—and also for their parents and unmarried children under the age of 21—there are no quota restrictions.
“This is a huge advantage,” explains Foster, “because it means that these individuals can immigrate without being subject to any quota provisions that could create significant backlogs.”
U.S. citizens can also sponsor siblings, as well as children who are married or adults. But it’s a different story for them, because only a certain number can be granted residency each year. In these categories, Foster notes, “there are substantial backlogs measured in years.”
Immigrants already in the U.S.
If the relative wishing to immigrate is already in the U.S. through lawful entry—as a visitor, student or holding a temporary work visa, for instance—the process is simpler. By filing an I-485 form, they may be able to apply adjust their status to receive permanent residency or a green card.
“If the relative being sponsored is an immediate relative—the spouse, minor unmarried child or parents of a U.S. citizen—they are eligible for adjustment of status even if they failed to maintain lawful status after they made a lawful entry into the United States,” says Foster. “Another advantage, given the fact that it can take a year or longer to process their application for adjustment of status, is that they are also eligible to apply for an interim Employment Authorization Document, as well as a travel document known as Advance Parole, which previously CIS would take 90 days to issue, but now it takes four to six months or even longer.”
If the relative is in another country, the U.S. citizen must file a Form I-130 petition with the U.S. Citizenship and Immigration Services (CIS). After approval, documentation must be sent to the National Visa Center, which will then notify the U.S. consular post in the country where the person resides. When a visa number is available under the quota system, an interview is held.
None of this happens quickly. “There is nothing very efficient with U.S. Citizenship and Immigration Services,” Foster says. “A family case typically, once the petition is filed, could take anywhere from 18 to 24 months to successfully immigrate while residing abroad; or at least 12 months or longer if otherwise eligible to adjust status within the United States.” Those estimates are assuming there are no quota backlogs.
“Generally speaking, the processing times have steadily grown over a period of years and grew substantially longer during the Trump administration, in part due to delays caused by the pandemic and in part due to policy changes,” Foster says. “The Biden administration has begun to revoke or improve policies and regulations that had the effect of slowing down the process of slowing down the process.”
Another factor in the amount of time it takes to get a visa is the immigrant’s country of birth. Quotas exist for how many can immigrate from each country. For instance, since Mexico is adjacent to the U.S. and so many immigrants have come from there, a large backlog of family-sponsorship applications exists for Mexican nationals, and approval can take many years. Foster says there is also a large backlog in family-sponsored applications for people wishing to come from the Philippines.
For Foster, who started his career as an international lawyer, immigration gave him “a sense of purpose and reward in helping real people,” he says. “I cannot go to any large gathering without someone walking up and telling me that I changed their lives by providing a pathway into this great country.”
Immigration Process for Relatives Abroad
- File Form I-130 with the regional office of CIS
- After approval, send documents to National Visa Center
- Set interview with U.S. consulate in immigrant’s country
All applicants must prove that they, or their sponsoring relative, can support them without public assistance. Typically, the sponsor files documents such as tax returns to show their financial ability.
It’s a good idea to hire an experienced immigration attorney to handle your case. Foster says legal expenses for an average immigration case typically range from $2,500 to $5,000.
“It is difficult for an inexperienced individual to go through the process without experienced legal representation, as they would be flying blind without appreciating the consequences of multiple questions that must be answered nor the documentation process,” he says. “At the very best, the unrepresented individual—since it would be a process of learning by trial and error—will take much longer to complete than it would be if otherwise if they were represented by experience legal immigration counsel. At worst, an unrepresented individual could put their case in serious jeopardy if they failed to answer all of the questions properly and did not realize the consequences of their answers.”
For more information, see our immigration law overview.