Last updated: November 9, 2025.
By Asel Williams, Esq. · Columbia Law School · Licensed immigration attorney
If you’re the immediate relative of a U.S. citizen or the family member of a lawful permanent resident you may be eligible to apply for a Green Card.
In this article, we’ll discuss the immediate relative visa and the family preference visa system, explain the requirements and provide helpful information on how to successfully navigate the visa application process.
Requirements for Family Relationships
To begin the family-based visa application process, the U.S. citizen or lawful permanent resident must file a petition with USCIS.
U.S. citizen or permanent resident must file Form I-130, Petition for Alien Relative with USCIS.
Form I-130 establishes the relationship between the petitioner (U.S. citizen or lawful permanent resident) and the beneficiary (the family member being sponsored).
When applying for a visa, it’s essential to know all the requirements for each visa category. Let’s break them down:
Immediate Relative Visa Requirements
- Immediate Relatives: According to U.S immigration law, immediate relatives of US citizens include:
- Spouses (IR-1/CR-1 visa)
- Unmarried children under 21 (IR-2 visa)
- Parents (if the U.S. citizen petitioner is 21 or older), IR-5 visa
Family Preference Visa Requirements
- Family Preference: The following five categories are considered “family preference” immigrants:
-
- First preference (F1) – unmarried children (21 years old or older) of U.S. citizens
- Second preference (F2A) – spouses and unmarried children (under 21 years old) of lawful permanent residents
- Second preference (F2B) – unmarried children (21 years older or older) of lawful permanent residents
- Third preference (F3) – married sons and daughters of U.S. citizens
- Fourth preference (F4) – siblings of U.S. citizens (if the U.S. citizen is 21 years old or older).
Preference System
The family preference system includes five visa categories (F1, F2A, F2B, F3, F4) that offer a pathway to a Green Card for the family members of U.S. citizens and lawful permanent residents.
The main difference between immediate relative and preference categories is the visa availability.
Visa number is always available for immediate relatives which means that they are not subject to annual numerical limitations.
Preference categories are subject to annual numerical limitations which can lead to much longer waiting periods.
Preference System Characteristics:
- Annual Caps: Each category has a numerical limit or cap on the visas issued per year.
- Visa Bulletin: Applicants must wait for their priority date to become current (the visa becomes available) according to the Visa Bulletin. The U.S. Visa Bulletin is typically published midway through each month by the U.S. Department of State. Wait times will vary depending on visa category and the applicant’s country of birth.
- Priority Dates: Applicants are assigned a priority date when their petition (Form I-130) is filed.
Depending on the relationship with the petitioner, beneficiaries will be subject to various application steps and processing times.
Learn more: How to Read the Visa Bulletin for Family-Based Immigrants
Preference Quota System
The family preference visa quota system ensures that visas are evenly distributed across different categories each year.
The total number of family-based visas issued each year is 480,000.
The number of preference visas is determined by subtracting the number of immediate relative visas issued during the previous year and the number of people paroled (allowed to temporarily live in the U.S.).
The total number of family preference visas available in 2024 is 226,000.
The below table depicts family-based visa allocation by category. Keep in mind that these numbers are subject to change when the fiscal year is over.
|
Category |
Annual Numerical Limit (Cap) |
| F1 | 23,400 |
| F2A | 87,934 |
| F2B | 26,266 |
| F3 | 23,400 |
| F4 | 65,000 |
In addition to numerical limits, USCIS generally limits each country to 7% of the total number of visas available to ensure a balanced distribution of visas across countries.
If there are unused visas in a specific category or country, they may be reallocated to other categories or countries.
Cross-chargeability
Cross-chargeability is a provision in U.S. immigration law that allows applicants to use the country of chargeability (the country in which they are counted as part of the visa quota) of their spouse or parent instead of their country of residence.
This provision can benefit applicants from countries with high demand by expediting the visa application process.
How Cross-Chargeability Works
- Applicable Categories: Cross-chargeability can be used in all family-based immigration cases, including family preference visas.
- Eligibility for Cross-Chargeability:
- Spouses: An applicant can use their spouse’s country of chargeability if it has a shorter waiting time or a more favorable status in the Visa Bulletin.
- Parents: Children can use their parent’s country of chargeability.
- Application Process:
- Request: The applicant may request cross-chargeability when they file their visa application or adjustment of status application. If the applicant is represented by an attorney, the attorney may request cross-chargeability on their behalf.
- Documentation: Proof of the applicant’s and their spouse’s or parent’s nationality may be required. This typically includes passports, birth certificates, and marriage certificates.
- Visa Bulletin: It’s essential to refer to the Visa Bulletin to determine the availability of visas for the country of chargeability.
While cross-chargeability can be highly beneficial to the applicant, it can be a difficult concept to grasp at first.
Here’s an example to help you picture how cross-chargeability works in the context of a visa application:
Let’s say that an applicant is from India, a highly populated country with a large demand for family-based visas. If the applicant’s spouse is from Canada, a country with lower demand, the applicant may be able to use Canada’s visa quota instead of India’s. This could potentially reduce their wait time for a visa.
Principal and Derivative Beneficiaries
There are two types of beneficiaries associated with family-based and employment-based visas. Each refers to the interested parties of the visa application.
Principal Beneficiary
- Definition: The main applicant for the visa. This person is directly sponsored by a U.S. citizen or lawful permanent resident and qualifies for the visa based on their familial relationship with the petitioner.
- Example: If a U.S. citizen files a petition for an immediate relative visa on behalf of their spouse, the spouse would be the principal beneficiary.
Derivative Beneficiary
- Definition: The family members of the principal beneficiary who are eligible to receive derivative benefits based on the primary beneficiary’s immigration status.
- Example: If a US citizen petitions for their brother Michael, Michael becomes the principal beneficiary. Michael’s spouse and unmarried child under 21 would be eligible to apply for permanent residency as derivative beneficiaries.
Retention of Priority Dates
Retention refers to the ability to keep the original priority date from an earlier visa petition when a new petition is filed, usually in cases where there is a change in the petitioner, visa category, or immigration status.
When an applicant’s visa petition is approved and they need to change their visa category, they can retain their original priority date.
If a visa petition is denied or withdrawn but the applicant later files a new petition, they may retain the priority date from the previous petition if the new petition is in the same or similar category and for the same family relationship.
If an applicant’s adjustment of status application (e.g., I-485) is denied, but the underlying visa petition (I-130 or I-140) was approved, the applicant may retain the priority date for future immigration applications.
Retaining the original priority date helps in streamlining the process for the applicant.
No retention could result in a longer wait time.
Additionally, it prevents the need to start from scratch in the visa queue, which is particularly beneficial in categories with long waiting periods.
When a new petition is filed (such as when a family member changes their status or the petition is refiled), ensure to mention the original priority date in the new application. Documentation from the previous petition should be included to support the retention request.
Effects of Divorce on Immigration Process
In the event of a divorce between the petitioner and the beneficiary, family-based immigration may become tedious or unattainable depending on what stage you are at in the immigration process when the divorce occurs.
1. During the Visa Petition Process
- Petition for Spouse (Form I-130):
- If the Divorce Occurs Before the Petition is Approved: If the petitioner and the beneficiary divorce before the Form I-130 (Petition for Alien Relative) is approved, the petition is generally considered abandoned. The U.S. Citizenship and Immigration Services (USCIS) may deny the petition, as the basis of the visa is the marital relationship, which no longer exists.
2. After the Petition is Approved but Before the Visa is Issued
- Spousal Visa (e.g., CR-1/IR-1 Green Card):
- If Divorce Occurs Before Visa Issuance: If the divorce occurs after the Form I-130 is approved but before the CR-1/IR-1 visa is issued or before the beneficiary enters the U.S., the visa application will typically be denied. The visa is dependent on the ongoing marriage, and the dissolution of the marriage affects the eligibility.
3. Adjustment of Status (Form I-485)
- If the Beneficiary is in the U.S.:
- During Adjustment of Status: If the beneficiary is adjusting status to a permanent resident (Form I-485) based on a spousal petition and the couple divorces during this process, the beneficiary’s application will likely be denied. The applicant must show that the marriage was entered into in good faith and not solely for immigration purposes. Evidence of a bona fide marriage (such as joint assets, shared responsibilities, and family connections) is crucial. Exception: Violence Against Women Act (VAWA).
4. Conditional Permanent Residency (Form I-751)
- Removing Conditions on Residence:
- If the Beneficiary Holds a Conditional Green Card: If the beneficiary has a conditional green card (CR-1 visa or CR-6 green card) based on marriage and the couple divorces before the conditions are removed, the beneficiary can still apply to remove the conditions by filing Form I-751 waiver of joint filing (Petition to Remove Conditions on Residence). The beneficiary must prove that the marriage was genuine and not entered into for immigration benefits. Divorce alone does not automatically disqualify the beneficiary, but they need to provide evidence of a legitimate marriage.
Effects of Naturalization on Immigration Process
Becoming a U.S. citizen is an incredible accomplishment.
Additionally, it can positively or negatively impact the outcome of the family-based immigration process for the beneficiary.
Here’s a look at what effects of naturalization and the changes that occur along with it:
1. Change in Visa Category
- Immediate Relative Status:
- Transition from Family Preference to Immediate Relative: If the petitioner was a U.S. lawful permanent resident (LPR) and then becomes a U.S. citizen, the beneficiary’s visa category may change. For example, a petition filed for a spouse or minor child of an LPR (family preference category) can switch to an immediate relative category (spouse or minor child of a U.S. citizen) once the petitioner naturalizes.
- Benefits:
- No Annual Cap: Immediate relative visas are not subject to annual caps or quotas, unlike family preference visas. This usually results in faster processing times and no waiting for a priority date to become current.
- Eligibility to sponsor additional family members: Naturalization makes US citizens eligible to file Form I-130 petitions for their parents, siblings, and married sons and daughters. Permanent residents are not eligible to sponsor their parents, siblings, or married sons and daughters.
2. Faster Processing
- Expedited Processing: Switching to the immediate relative category often speeds up the processing of the visa application or adjustment of status filed for spouses, unmarried children under 21, and parents of US citizens because there are no numerical limits or quotas for immediate relatives.
- Impact on Waiting Times: The beneficiary may experience a significant reduction in waiting time compared to the family preference category, where waiting times can be much longer due to annual visa caps and high demand.
3. Adjustment of Status (Form I-485)
- In the U.S.:
- Adjustment of Status as Immediate Relative: If the beneficiary is already in the U.S. and adjusting status (Form I-485) based on the family preference petition, their application will generally be updated to reflect the new status as an immediate relative of a U.S. citizen. This may expedite their adjustment process.
- Revised Processing: USCIS will process the adjustment of status application according to the immediate relative category, which typically has a faster adjudication timeline.
4. Consular Processing
- Outside the U.S.:
- Consular Processing as Immediate Relative: If the beneficiary is outside the U.S. and undergoing consular processing, their visa application will be processed under the immediate relative category once the petitioner becomes a U.S. citizen. This change should expedite the issuance of the visa and potentially reduce the wait time.
- Administrative Updates: The National Visa Center (NVC) will update the beneficiary’s case to reflect the new status and expedite the process as appropriate.
The Child Status Protection Act
The Child Status Protection Act (CSPA) is a U.S. immigration law designed to protect children’s immigration benefits due to aging out.
The CSPA aims to address situations where children who are beneficiaries of immigration petitions turn 21 years old before their immigration process is completed.
In U.S. immigration law, a child is generally defined as someone who is unmarried and under 21 years of age.
The CSPA provides a way for children to maintain their eligibility for immigration benefits even if they age out during the process.
Under the CSPA, a child’s age for immigration purposes is frozen at the time a visa petition is pending before USCIS.
For example, if a U.S. citizen files a Form I-130 for their unmarried child and the petition is approved, but the child turns 21 before a visa becomes available, the CSPA may allow the child to continue to be classified as a child for immigration purposes.
Need help?
Consulting with our experienced and knowledgeable immigration attorney can provide valuable insights into the best application strategy.
Related Links:
I-130 Form, Petition for Alien Relative Guide
Marriage Green Card – Checklist, Forms and Processing Time
IR-1 and CR-1 Visa, Immigrant Visa for a Spouse of U.S. Citizen