Family-Based Immigration

There is a lot to speak about here, but here are the fundamentals: (1) in order to become a U.S. Citizen, you must become a “Legal Permanent Resident” first; this is a preliminary status, for either 3 or 5 years (depending upon how you get it) which is required before obtaining Citizenship.  With respect to Legal Permanent Residency (“LPR”) status, here are the basic categories: (1) family based applications, (2) employment based applications, (3) winning the diversity lottery, (4) persecution based claim, i.e., asylum, withholding of removal, etc., or (5) U Visa, where a serious crime was committed against your person causing you serious physical or emotional injury.  

For family based applications, you must have an “immediate” family member sponsor you.  “Immediate” means either spouse, son or daughter over 21 years of age, sibling, or parent who has status who can petition for you.  Aunts, uncles, cousins and children under 21 cannot petition for you.  There are quotas for every one of these categories other than spouse or son or daughter over 21 – if one of these persons is your petitioner you can usually complete the petition process in about 3 years – in the past it was less than 1 year.  The quota means that there is a very long wait time.  Further, if you are in the United States already, you will need to get a waiver – the waivers, however, depend upon hardship to either your spouse or parent – you cannot demonstrate hardship to a child or son or daughter.  

Within the family-based category of applicants, there is also a self petition under the “Violence Against Women Act” (“VAWA”) which permits you to petition for yourself if your marriage was in good faith and your U.S. citizen or LPR spouse abuses either you or your children.

Yes, you remain eligible to file for adjustment of status (Form I-485) inside the U.S. without leaving, as long as your I-130 petition is approved. Overstaying doesn’t bar adjustment if you entered with inspection, but it starts accruing unlawful presence—avoid departing the U.S. until your green card is approved to prevent triggering a 3- or 10-year bar. Consult an immigration attorney to review your timeline.

If adjusting inside the U.S. (legal entry), no waiver is required upfront. Seek legal advice for your specific case. For obtaining an immigrant visa from outside the U.S., it depends on your length of stay: under 180 days, no waiver needed for adjustment. Over 180 days (or 1 year for the 10-year bar), you’ll likely need a I-601 waiver showing extreme hardship to your U.S. citizen relative before any consular processing abroad.

Effective August 1, 2025, USCIS can deny incomplete or ineligible petitions without issuing a Request for Evidence or Notice of Intent to Deny, offering no chance to correct issues. For out-of-status applicants in the U.S., denial may trigger a Notice to Appear, starting deportation proceedings. Submit thorough, accurate applications to minimize risks.

Yes for immediate relatives of U.S. citizens—unauthorized work doesn’t bar adjustment if you entered legally. For family preference categories (e.g., sponsored by a green card holder), it typically bars you unless violations total less than 180 days since your last legal entry, per INA 245(k).