Family-Based Immigration: How to Petition for a Spouse or Child

By: Jarbath Peña Law Group

Bringing a family member to the United States is a profound and hopeful journey. For many, it represents the dream of reunification and building a life together. The U.S. immigration system provides a pathway for citizens and lawful permanent residents to petition for their spouses and children. However, the process is detailed and requires careful attention to specific legal standards. Understanding the steps involved can transform this complex procedure into a manageable one.

Navigating family-based immigration can feel overwhelming, but you do not have to do it alone. This guide breaks down the process of petitioning for a spouse or child, offering the clarity you need to move forward with confidence.

Understanding the Basics of Family-Based Petitions

The foundation of a family-based immigration case is the relationship between the petitioner (the U.S. citizen or lawful permanent resident) and the beneficiary (the family member seeking to immigrate). The goal is to prove to U.S. Citizenship and Immigration Services (USCIS) that a qualifying relationship exists.

Petitions are divided into two main categories:

1. Immediate Relatives: This includes the spouse, unmarried children under 21, and parents of a U.S. citizen. A key advantage for this category is that there is no annual limit on the number of visas available. This means the process is generally faster.

2. Family Preference Categories: This group includes other family relationships, such as unmarried adult children of U.S. citizens, spouses and children of lawful permanent residents, and married children of U.S. citizens. These categories are subject to annual visa limits, which often results in longer waiting times based on a priority date system.

This guide focuses on petitions for spouses and children, who are often categorized as immediate relatives.

Step 1: Determining Eligibility

Before you can file any paperwork, you must first confirm that you and your family member are eligible.

For the Petitioner (You):

• You must be a U.S. citizen or a lawful permanent resident (Green Card holder).

• You must be able to prove your status with documents like a birth certificate, passport, Certificate of Naturalization, or your Green Card.

• You must demonstrate the ability to financially support your relative at 125% above the federal poverty line. This is typically proven later in the process through an Affidavit of Support (Form I-864).

For the Beneficiary (Your Spouse or Child):

• Spouse: You must prove that you are legally married. This means providing a valid marriage certificate. Any previous marriages for either you or your spouse must have been legally terminated through divorce, annulment, or death.

• Child: The beneficiary must meet the legal definition of a "child" under U.S. immigration law. This includes:

• Unmarried children under the age of 21.

  • Step-children, if the marriage creating the stepparent-stepchild relationship occurred before the child turned 18.

  • Adopted children, with specific rules regarding the adoption process and custody.

Establishing eligibility is a critical first step. Any mistake here can stop the entire process before it even begins.

Step 2: Filing Form I-130, Petition for Alien Relative

The official start of the process is filing Form I-130 with USCIS. This form establishes the existence of a valid family relationship. It is not a visa application itself, but rather the necessary prerequisite.

Key Sections of Form I-130:

• Petitioner Information: Your personal details, including name, address, date of birth, and proof of your U.S. status.

• Beneficiary Information: Similar personal details for your spouse or child.

• Relationship Information: Details about your marriage or the child's birth. For spousal petitions, you will need to provide information about where and when you were married and list any prior marriages for both partners.

Accuracy is absolutely essential when completing this form. Even a simple typo or an incorrectly answered question can lead to a Request for Evidence (RFE), causing significant delays, or even a denial.

Step 3: Gathering Your Supporting Documents

Along with Form I-130, you must submit a strong portfolio of supporting evidence to prove your relationship. USCIS needs to be convinced that your relationship is authentic (bona fide) and not entered into for immigration purposes.

Essential Documents for All Petitions:

• Proof of the petitioner’s U.S. citizenship or lawful permanent resident status.

• A copy of the beneficiary’s birth certificate.

• A copy of your marriage certificate (for spousal petitions).

Additional Evidence for Spousal Petitions (to prove a bona fide marriage):

• Financial Co-mingling: Joint bank account statements, joint tax returns, life insurance policies naming the other spouse as beneficiary.

• Joint Ownership or Residency: Copies of deeds or leases showing both names, utility bills with both names, or car titles.

• Evidence of Relationship: Photos together over time (with family and friends), travel itineraries from trips taken together, and written statements from friends or family attesting to your relationship.

• Evidence of Children in Common: Birth certificates of any children you have together.

Additional Evidence for Child Petitions:

• The child’s birth certificate showing the petitioner's name.

• For step-parent petitions, the marriage certificate of the petitioner and the child's biological parent, proving the marriage occurred before the child's 18th birthday.

The more comprehensive and organized your evidence is, the smoother your case will proceed.

What Happens After You File?

Once you submit the I-130 petition and supporting documents, the process moves through several stages:

1. Receipt Notice: USCIS will send you a Form I-797C, Notice of Action, confirming they have received your petition. This includes a receipt number you can use to track your case online.

2. Petition Approval: If USCIS is satisfied with your evidence, they will approve the I-130 petition. This does not grant immigration status but allows your relative to move to the next stage.

3. National Visa Center (NVC) or Adjustment of Status:

4. If your relative is outside the U.S., the approved petition is sent to the NVC. You will then need to pay fees, submit the Affidavit of Support, and provide additional documents before an interview is scheduled at a U.S. embassy or consulate at an international location.

   • If your relative is already in the U.S. legally and a visa is available, they may be able to apply for Adjustment of Status (Form I-485) to get their Green Card without leaving the country. Some restrictions apply, as not everyone is eligible to remain in the United States for their adjustment process and interview.

   • It is important to note, if you need to leave the United Sates to attend this interview, additional information and applications may need to be filed to avoid an accidental deportation.

This post-approval stage is just as complex as the initial filing. It involves more forms, more evidence, and, for many, a final interview.

How We Help Guide You

While it is possible to file a family petition on your own, the risks are substantial. The immigration system is unforgiving of mistakes, and a denial can be heartbreaking and costly. This is where professional legal guidance becomes invaluable.

At Jarbath Pena Law Group, we partner with families to navigate this journey. We see ourselves as your dedicated guides, ensuring every step is taken correctly.

• We ensure accuracy: We meticulously prepare and review every form and document to prevent common errors that cause delays or rejections.

• We build a strong case: We help you gather the most effective evidence to prove your bona fide relationship, leaving no room for doubt.

• We manage the process: From filing the initial petition to preparing you for the final interview, we handle the complexities so you can focus on your family.

• We are your advocates: If issues arise, like a Request for Evidence, we respond strategically and effectively on your behalf.

Reuniting your family is too important to leave to chance. Let us provide the support and expertise needed to bring your loved ones home.

Take the first step toward securing your family's future. Contact the Jarbath Pena Law Group today at 305-615-1005 or visit our website at www.jp-lawgroup.com to schedule a consultation.