Immigration law has evolved into several areas of practice including removal defense, employment based visa petitions, family based visa petitions, naturalization and asylum. This article provides an overview of the family based practice and basic concepts with regard to immigrant and non-immigrant visa petitions available to individuals.

Many individuals seek to sponsor a spouse or fiancée who is living overseas. This can be accomplished through a K-1 fiancée or K-3 spousal visa petitions. These are technically non-immigrant visas which admit the individual for a limited purpose. For the K-1 fiancée' visa the individual is admitted to the U.S. for the purpose of marriage to a U.S. Citizen petitioner and filing of the Immigrant Visa petition. The K-3 visa is filed by persons who have already married overseas, have filed an I-130 immigrant visa petition and seek admission of the husband or wife to the U.S. while their petition is pending.

Immigrant visa petitions may be filed either by a legal permanent resident petitioner or U.S. Citizen petitioner. I-130 immigrant visas may be filed by legal permanent residents for their children or spouses, assuming there is non opportunity to have that person enter the U.S. as a "follow to join" applicant. U.S. Citizen parents may petition their children regardless of age or marital status. There are however different visa categories governing when these individuals may obtain an immigrant visa depending on their age and marital status.

Legal permanent residents (green card holders) may petition a wife or child of any age. As stated earlier it is preferable to bring a derivative spouse or child (under the age of 21) to the United States in 'follow to join' status. If this is not possible then lawful permanent residents may petition the wife or child and expect a waiting period of four years or longer. Children over the age of 21 can reasonably expect a waiting period of up to 8 years.

A U.S. Citizen (either U.S. Born or Naturalized) may petition a wife and child under the age of 21 with no waiting period. Stepchildren, as long as marriage to the parent took place before age 18, also fit into this category. For unmarried children over the age of 21, waiting periods can range from 6 or more years depending on the country of origin.

U.S. Citizens may also petition their parents with no waiting period. Citizens may also petition brothers and sisters who fall into the least desirable 4th preference category with a wait of ten or more years.

For immigration authorities, marriage provides an important distinction between dependent children and children no longer closely associated with or dependent upon their parents. Immigrants should be aware that there is a significant marriage penalty for children who's legal permanent resident parents filed a petition for them prior to their getting married. The child's marriage effectively kills the petition forcing a parent to re-file their immigrant visa and loss of the priority date, greatly extending waiting periods for the visa. Similarly, children whose U.S. Citizen parents file an immigrant visa petition will fall into a less desirable third preference visa category upon their getting married.

Beneficiaries of immigrant visa petitions who already reside in the United States may seek employment authorization while their application for legal permanent residency is pending. Employment authorization must be requested with the filing of a separate application, and once approved, provides the immigrant with the ability to acquire a driver's license in their state of residence as well as a social security number.

Children of U.S. Citizen parents may acquire U.S. Citizenship in a number of ways. For children who are under the age of 18 they may derive citizenship when one parent naturalizes, as long the children have entered the United States as legal permanent residents and are in the legal and physical custody of the naturalizing parent.

Children born to a U.S. Citizen parent overseas may acquire U.S. Citizenship themselves provided their parents were married at the time of birth, or for children with a U.S. Citizen father that they were "legitimated" or some sort of acknowledgement or court ruling on paternity occurred prior to age 18.

This overview of family based immigrant petitions is provided in order to allow individuals to consider options which may be available to them or their close relatives. Immigration laws, regulations and their application by USCIS and the Department of State are complex and not always consistent. That is why it is important to consult with a qualified professional and take advantage of their experience, knowledge and training before filing applications for family members.

Mr. Dupont is a graduate of Yale University and USC Law School and is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont is a past chairman of the Immigration Law Committee with the Beverly Hills Bar Association. During the course of his 12 year practice in immigration law he has directly influenced Department of State and USCIS practices and policies through Federal District Court litigation including a Ninth Circuit Court of Appeals decision on V-Visas eliminating age-out of minor V-visa recipients. Should you wish to consult with or engage the services of Mr. Dupont, please contact Immigration Compliance Group here. :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::