9 FAM 502.2
Family-Based IV Classifications
(Office of Origin: CA/VO/L/R)
9 FAM 502.2-1 Family-based iv classifications overview
9 FAM 502.2-1(A) Related Statutory and Regulatory Authorities
9 FAM 502.2-1(A)(1) Immigration and Nationality Act
INA 101(b) (8 U.S.C. 1101(b)); INA 101(a)(35) (8 U.S.C. 1101(a)(35).
9 FAM 502.2-1(A)(2) Code of Federal Regulations
22 CFR 42.31; 8 CFR 204.2(a).
9 FAM 502.2-1(B) Family Classifications Overview
Two groups of family-based immigrant visa categories are provided under provisions of United States immigration law: Immediate Relative (IR) and Family Preference. Immediate Relative (IR) immigrant visas are based on a close family relationship with a U.S. citizen. The number of immigrants in these categories is not limited each fiscal year (see 9 FAM 502.2-2). Family Preference immigrant visas are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants (see 9 FAM 502.2-3). There are also special immigration benefits for certain Amerasian children (see 9 FAM 502.2-4).
9 FAM 502.2-1(C) Conferring Immigration Benefits to Family Members
a. Immigration Benefits from Adult Children Only: Only U.S. citizens aged at least 21 years may confer immigration benefits on a parent or parents.
b. Parents or Siblings of Adopted Child:
(1) Biological Parents or Siblings: An adopted child (as defined in INA 101(b)(1)(E), (F) or (G)) may not confer immigration benefits upon a natural parent or sibling unless such adoption has been legally terminated. This is true even where the child never received an immigration benefit based on the adoption.
(2) When Adoption Has Been Terminated: A natural parent or child or sibling relationship can be recognized for immigration purposes following the termination of an adoption, if the petitioner can demonstrate that:
(a) No immigration benefit was obtained or conferred as a result of the adoptive relationship on the adoptive parent(s);
(b) A natural parent or child relationship meeting the requirements of INA 101(b) once existed;
(c) Any adoption that satisfied the requirements of INA 101(b)(1)(E) has been lawfully terminated; and
(d) The petitioner's natural relationship with the beneficiary has been reestablished, either through operation of law or through other legal process.
c. Immigration Benefit Conferred from Child to Father: USCIS has determined that an illegitimate child may confer immigration benefits to a father if:
(1) The father has established that he is the natural parent; and
(2) A bona fide parent or child relationship has been in existence prior to the child’s 21st birthday. (See 9 FAM 102.8-2(D) definition of “child born out of wedlock.”)
9 FAM 502.2-1(D) Proxy Marriages
a. Consummated Proxy Marriage: If the consular officer is satisfied that the marriage has been consummated, he or she may proceed with processing the visa application based on the premise that a consummated proxy marriage relates back to the date of the proxy ceremony.
b. Unconsummated Proxy Marriage: If the marriage has not been consummated, the consular officer must return the petition to DHS. (See 9 FAM 504.2-8.) If the marriage is subsequently consummated, and DHS approves a petition for the same preference classification, the new petition approval can be regarded as a reaffirmation of the validity of the original petition and the original priority date is retained.
9 FAM 502.2-1(E) Forced Marriages
a. If the petitioner or beneficiary indicates to the consular officer that they are being forced to marry against their will, the officer should 221g the case and enter detailed case notes regarding the forced marriage circumstances so that another officer does not issue the visa. The officer should then reach out to their VO/F post liaison for guidance. The Visa Office works closely with USCIS on cases involving allegations of forced marriage, and can provide case by case guidance to post while working to protect the confidentiality of the party that disclosed the forced marriage.
b. In instances where the adjudicating officer has reason to believe the applicant is being forced to marry against their will, post should conduct a more in-depth interview with the applicant, preferably in a privacy window. Officers should obtain a statement from the applicant detailing the circumstances of the marriage and his/her intention and willingness to enter into the marriage.
c. If a forced marriage case results in a consular return, and if the applicant or beneficiary inquires, Post is advised only to communicate that the petition has been returned to USCIS.
9 fam 502.2-2 immediate relative (IR) Classifications
9 FAM 502.2-2(A) Related Statutory and Regulatory Authorities
9 FAM 502.2-2(A)(1) Immigration and Nationality Act
INA 101(b)(1)(E)-(G) (8 U.S.C. 1101(b)(1)(E)-(G)); INA 101(c)(1) (8 U.S.C. 1101(c)(1)); INA 201(b) (8 U.S.C. 1151(b)); INA 203(a)(1) (8 U.S.C. 1153(a)(1)); INA 203(d) (8 U.S.C. 1153(d)); INA 216 (8 U.S.C. 1186a).
9 FAM 502.2-2(A)(2) Code of Federal Regulations
8 CFR 204.2(a)-(b); 8 CFR 204.2(d); 8 CFR 204.2(f); 22 CFR 42.21(a); 22 CFR 42.41.
9 FAM 502.2-2(A)(3) Public Law
Immigration Marriage Fraud Amendments Act of 1986, Public Law 99-639, sec. 2; Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, sec. 219(b)(1); Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, sec. 40701; Immigration Act of 1990, Public Law 101-649, sec. 101(a).
9 FAM 502.2-2(B) Immediate Relative Defined
a. The Immigration and Nationality Act (INA) defines “immediate relative” to include the following:
(1) Spouse of a U.S. citizen (see “Marriage” in 9 FAM 102.8-1 Definitions);
(2) Certain spouses (and the accompanying or following-to-join children) of deceased U.S. citizens (see “Widow” in 9 FAM 502.1-2(C) Definitions);
(3) Child of a U.S. citizen (see “Child” in 9 FAM 102.8-2(A) Definitions);
(6) Parent of an adult U.S. citizen (see “Parent” in 9 FAM 102.8-2(J) Definitions); and
(7) Child under 16 adopted or to be adopted under the terms of the Hague Convention (see “Convention adoptee” in 9 FAM 102.8-2(I) (Definitions) and 9 FAM 502.3-4(B) and 9 FAM 502.3-4(C)(1), Convention Adoptee Classification Summary)).
b. See 9 FAM 102.8 for definitions of family-based relationship terms.
c. An alien is entitled to status as an Immediate Relative if you have received a properly approved petition from the Department of Homeland Security and you are satisfied that the claimed relationship exists.
d. Derivative Immediate Relative Status for Spouses or Children:
(1) The INA does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. (INA 203(d) does not apply to the classes described in INA 201(b)). A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent.
(2) “Parents” of U.S. citizens are accorded immediate relative (IR5) status only upon U.S. Citizenship and Immigration Services approval of a Form I-130, Petition for Alien Relative, establishing that the appropriate child-parent relationship exists. In certain circumstances, a U.S. citizen may be entitled to petition for only one parent, such as when the beneficiary’s spouse does not meet the definition of “parent” as set forth at INA 101(b)(2). For example, an alien who becomes a stepparent of an 18 year old is not considered to be the “parent” of that child for immigration purposes (see INA 101(b)(1)(B)). Consequently, should that stepchild become a U.S. citizen, USCIS would be unable to approve a Form I-130, Petition for Alien Relative (for IR5 status) for that stepparent. Further, spouses and children of IR5s cannot benefit from derivative status through the principal alien. Spouses who cannot qualify in their own right for IR-5 status, and any children of an IR5, would require the filing of a separate Form I-130 petition (family-based second preference classification) upon the principal’s admission to the United States as a permanent resident.
(3) Section 219(b)(1) of Public Law 103-416 makes an exception to the general rule by providing derivative status for the accompanying or following-to-join children of spouses of deceased U.S. citizens.
e. “Spouse and Child of Deceased U.S. Citizen” Defined:
(1) INA 201(b)(2)(A)(i) defines “immediate relatives” to include the spouse of a deceased U.S. citizen, provided the spouse:
(a) Was not legally separated at the time of the spouse’s death;
(b) Has not remarried; and
(c) Files a petition under INA 204(a)(1)(A)(ii) within two years after the death of the spouse.
(2) An immediate relative also includes the child(ren) of the spouse of the deceased U.S. citizen. Such children, however, may not petition in their own behalf, but are derivatives of the principal beneficiary. Consequently, they can obtain status only as derivatives by accompanying or following to join the principal beneficiary. Derivative status does not extend to unmarried sons or daughters of widows or widowers. See 9 FAM 502.1-1(D)(8) for additional information on the effects of September 11, 2001 terrorist act-inspired legislation on immediate relative classification and petition procedures.
9 FAM 502.2-2(C) Immediate Relative Classification – Special Cases
a. Refusal to File Immediate Relative (IR) Petition:
(1) In general, the spouse, child, or parent of a U.S. citizen who is entitled to classification as an immediate relative (IR) should be processed as an IR. However, if you are fully satisfied that the U.S. citizen relative has refused to file a petition on behalf of the spouse, child, or parent, for reasons other than financial consideration or inconvenience, you may consider the applicant for any other type of immigrant visa for which he or she is qualified.
(2) If an alien is classifiable both as an IR and a preference immigrant, and the alien’s spouse refuses to file an IR petition to avoid conditional status, you may process the alien case as that of a preference immigrant. (See 9 FAM 502.2-2(D).)
(3) Abusers generally refuse to file relative petitions because they find it easier to control relatives who do not have lawful immigration status. Section 40701 of Public Law 103-322 contains provisions that allow the qualified spouse or child of an abusive U.S. citizen or LPR to self-petition for immigrant classification.
b. Alien Classifiable as Immediate Relative (IR) and Special Immigrant: An alien classifiable as an immediate relative who is also classifiable as a special immigrant under INA 101(a)(27)(A) or INA 101(a)(27)(B) may establish entitlement to classification under either category, depending upon which of the two may be more easily established. Since special immigrants under INA 101(a)(27)(A) and (B) are not subject to numerical limitations, this procedure is in accord with the original intent of Congress in enacting INA 201(b), namely, to prevent the use of immigrant visa numbers by aliens who are able to immigrate in a visa category not subject to numerical limitations.
c. Immediate Relative Classification Following Petitioner’s Naturalization in Family Second Preference Petition Cases: See 9 FAM 502.1-2(D) for additional information on conversion of F2 petition to accord IR status.
d. Petition Procedures: See also 9 FAM 504.2-3 for information on petition procedures for U.S. citizens abroad.
9 FAM 502.2-2(D) Conditional Status for Certain Immediate Relatives
a. The Immigration Marriage Fraud Amendments Act of 1986 (Public Law 99-639) amended the Immigration and Nationality Act by adding section 216 (8 U.S.C. 1186a) which provides conditional permanent resident status for certain immediate relative categories at the time of admission.
b. You classify the spouse of a U.S. citizen or the stepchild of a U.S. citizen as a conditional immigrant at the time of visa issuance if the basis for immigration is a marriage that was entered into less than two years prior to the date of visa issuance. (See also 9 FAM 504.10-3.)
9 FAM 502.2-3 Family Preference Classifications
9 FAM 502.2-3(A) Related Statutory and Regulatory Authorities
9 FAM 502.2-3(A)(1) Immigration and Nationality Act
INA 101(a)(27)(A) (8 U.S.C. 1101(a)(27)(A)); INA 203(a) (8 U.S.C. 1153(a)).
9 FAM 502.2-3(A)(2) Code of Federal Regulations
22 CFR 42.31.
9 FAM 502.2-3(A)(3) Public Law
Child Status Protection Act, Public Law 107-208.
9 FAM 502.2-3(B) Entitlement to Family Preference IV Classification
a. A U.S. citizen or a permanent resident alien may file an immigrant visa petition under INA 203(a) on behalf of a family member if the alien meets one of the relationship categories listed below:
(1) First Preference: Unmarried sons and daughters of U.S. citizens;
(2) Second Preference: Spouses and unmarried sons and daughters of lawful permanent resident aliens:
(a) F2A: Spouse and children of legal permanent resident. "F2A" is the term used in the monthly Visa Bulletin. The terms used in the chart at 9 FAM 502.1-3 are "F21" (spouse) and "F22" (child). These latter terms are printed on the issued immigrant visa.
(b) F2B: Unmarried sons and daughters (over 21) of legal permanent residents. (Also referred to as "F24" for IV issuance purposes.) A minor child of a principal alien in the F2B category is an F25.
(c) FX: Although there is a per-country limit of 7 percent of the total number of preference immigrant visas, the INA allows for a certain percentage of the F2A numbers to be exempt from the per-country limit; they are issued using the FX issuance symbol. Post may issue to otherwise qualified FX cases without concern for this cap, which is managed by the Visa Office.
(3) Third Preference: Married sons and daughters of U.S. citizens; and
(4) Fourth Preference: Brothers and sisters of U.S. citizens.
b. The alien must be the beneficiary of a Department of Homeland Security-approved petition and must meet all other requirements for the issuance of an immigrant visa.
9 FAM 502.2-3(C) Derivative Status for Spouse and Children (Family Preference Classification)
a. The spouse and unmarried children of an alien beneficiary are entitled to the same preference status, and the same priority date, as the principal alien.
b. Offspring of Derivative Child:
(1) A derivative beneficiary of an approved immigrant visa petition cannot bestow upon someone else the immigration status they, themselves, have derived from the principal beneficiary.
(2) For example, if an LPR files a second preference petition for his wife, she is the principal beneficiary of the status accorded by the petition. Any children (as defined by INA 101(b)(1)) of the principal beneficiary (the wife) would derive from their mother the same immigration status that she has been granted. However, the law does not provide an avenue for derivative beneficiaries to pass their derived immigration status on to any children of their own (or to anyone else for that matter).
(3) Under such circumstances, however, the petitioner could elect to file a separate petition for any of his children who have children of their own. With a separately approved petition, the petitioner's child would then become the principal beneficiary of the petition and, accordingly, the child's children would qualify for derivative immigration status through the principal beneficiary parent.
c. Filing Petitions for Derivative Aliens: Careful attention should be paid to cases where a derivative beneficiary's immigration status is likely to change.
(1) For instance, when a child turns 21, he or she is no longer considered a "child" under the INA. The Child Status Protection Act (CSPA) may protect the derivative from “aging out” and losing the ability to derive status from the principal beneficiary of the petition. (See 9 FAM 502.1-1(D) for guidance on CSPA calculations.)
(2) Likewise, if the petitioner intends to become a U.S. citizen before his wife and children have immigrated to the United States, he should file separate immigrant visa petitions for any children who are currently deriving their immigration status through the mother. That way, when the petitioner is naturalized, the petition according second preference status (F21) to his wife, as well as those petitions according second preference status (F22) to any children, will be converted automatically to accord the beneficiaries immediate relative status (IR1 or IR2). If, however, the petitioner does not file separate petitions for his children before his naturalization, the children will lose their derivative status upon the father's naturalization, since the mother's status will automatically convert to IR1 and there is no derivative status for immediate relatives. The father will then have to file new petitions on their behalf to accord them IR2 status.
d. Filing Separate Petitions for F2 Derivatives: Although the spouse or child of an LPR is entitled to derivative status, a recession of the cut-off date in the derivative category resulting in the unavailability of a number in the derivative category might encourage the filing of a second preference petition. However, there is normally a substantial amount of time involved before the petition could be approved, and the second preference might also be delayed. The decision to file or not to file a second preference petition must be the petitioner’s. Consular officers must neither encourage nor discourage the filing of a second preference petition but may provide copies of recent Visa Office bulletins, which indicate the movement of priority dates. In unusual circumstances, it is possible that slow movement in the beneficiary’s derivative class might indicate that the filing of a second preference petition may be beneficial.
9 FAM 502.2-3(D) Automatic Conversion of Petitions (Family Preference Classifications)
a. Immediate Relative Converts to First or Third Preference: If the child of a U.S. citizen is the beneficiary of an immediate relative petition, the petition automatically converts to a first preference petition if the child reaches the age of 21 and remains unmarried (see also 9 FAM 502.1-1(D) for details on the Child Status Protection Act (CSPA)). If the child should marry, the immediate relative petition converts to third preference petition. The priority date of the first preference petition is the filing date of the immediate relative petition.
b. First Preference Converts to Third Preference: If the unmarried son or daughter of a U.S. citizen marries before the visa is issued, the beneficiary's first preference petition automatically converts to a family third preference petition. Any child(ren) of the beneficiary would then be entitled to derivative third preference status. The priority remains the same.
c. Second Preference Converts to Immediate Relative: A second preference petition for the spouse of a lawful permanent resident (LPR) automatically converts to an immediate relative petition if the petitioner becomes a U.S. citizen. However, derivative second preference status for the beneficiary's child(ren) does not convert, since there is no derivative status for immediate relative petitions. The petitioner must file a separate petition for the child, if the child meets the definition of "child" as defined in 9 FAM 102.8-2(A). The priority remains the same.
d. Second Preference Converts to First Preference: A second preference petition for the unmarried son or daughter of a lawful permanent resident automatically converts to a first preference petition if the petitioner becomes a U.S. citizen (see also 9 FAM 502.1-1(D) for details on the CSPA). The accompanying or following-to-join child(ren) would also be entitled to derivative first preference status. The priority remains the same.
e. Third Preference Converts to First Preference:
(1) A third preference petition approved for a married son or daughter of a U.S. citizen who has since become widowed or divorced automatically converts to accord first preference status (or immediate relative status if the beneficiary is under the age of 21). If the petition converts to first preference, the accompanying or following-to-join child(ren) may be granted derivative first preference status. The priority remains the same.
(2) There is no derivative status for the child(ren), if the beneficiary becomes entitled to immediate relative status.
9 FAM 502.2-3(E) Second Preference Petitioner Residing Abroad (Family Preference Classifications)
a. Second Preference Petition Filed Abroad by Returning Resident Alien: An alien who qualifies as a special immigrant returning resident under the terms of INA 101(a)(27)(A) is by definition an alien “lawfully admitted for permanent residence.” The alien may be considered to have the same status under the identical language of INA 203(a)(2). Therefore, an alien issued a special immigrant visa as a returning permanent resident, an alien returning with a valid reentry permit, or an alien holding a Form I-551, Permanent Resident Card, may file a petition while abroad for a spouse or an unmarried son or daughter.
b. When Legal Permanent Resident (LPR) Status is Doubtful:
(1) INA 101(a)(20) reads as follows: “The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”
(2) If a consular officer has reason to believe the petitioner may no longer be entitled to permanent resident status, the consular officer must return the petition to the appropriate DHS office pursuant to 22 CFR 42.43(a). If the petitioner has filed a petition abroad, the consular officer should forward the petition for DHS adjudication as a case "not clearly approvable." (See 9 FAM 504.2-8.)
9 FAM 502.2-3(F) Related Family Preference Classification Provisions
a. See 9 FAM 503.3-3(A) related to new petition approval being equivalent to revalidation if filed by same petitioner on behalf of same beneficiary.
b. See 9 FAM 504.10-2(E)(2) related to statement signed by alien issued visa as unmarried son or daughter.
c. See 9 FAM 102.8-1 definition of “marriage” regarding family-sponsored preference petitions in cases of marriage between relatives.
d. See 9 FAM 504.2-3(B) related to special petition procedures for U.S. citizens and resident aliens abroad.
e. Spouse, Child, Son, or Daughter of LPR Killed in September 11, 2001 Terrorist Attacks: The spouse, child, son, or daughter of an alien killed in a September 11, 2001 terrorist attack, may self-petition for status using the Form I-130, Petition for Alien Relative. They will be processed as if the petitioner had not been killed in the attack. The beneficiary must demonstrate that he or she was present in the United States on September 11, 2001, that the spouse or parent had lawful permanent resident (LPR) status on September 11, 2001, and that the spouse or parent was killed as a direct result of the terrorist attacks.
9 FAM 502.2-4 AMERASIAN FAMILY-BASED CLASSIFICATION
9 FAM 502.2-4(A) Related Statutory and Regulatory Authorities
9 FAM 502.2-4(A)(1) Immigration and Nationality Act
INA 204(f) (8 U.S.C. 1154(f)).
9 FAM 502.2-4(A)(2) Code of Federal Regulations
8 CFR 204.4; 8 CFR 205.1(a)(3)(ii).
9 FAM 502.2-4(A)(3) Public Laws
Public Law 97-359; Public Law 100-202, sec. 584; Foreign Operations, and Export Financing and Related Programs Appropriations Act, 1990, Public Law 101-167, Title II; Foreign Operations, and Export Financing and Related Programs Appropriations Act, 1991, Public Law 101-513, Title II; Immigration Act of 1990 ,Public Law 101-649, sec. 603(a)(20)).
9 FAM 502.2-4(B) Amerasian Classification under INA 204(f)(1)
a. The Amerasian Immigration Act (AIA), Public Law 97-359 of October 22, 1982, added section 204(g) (now INA 204(f)(2)) to the INA to provide preferential treatment in the immigration of certain illegitimate Amerasian children of U.S. citizen fathers who are unable to immigrate under any other section of the INA. Prior to enactment of Public Law 97-359, these children were unable to gain any benefits from their relationship to their father. The provisions of INA 204(f)(1) enable them to do so without requiring their father to file a petition on their behalf.
b. To qualify for benefits under INA 204(f)(1) the beneficiary must have been:
(1) Born in Korea, Vietnam, Laos, Cambodia, or Thailand after December 31, 1950, and before October 22, 1982; and
(2) Fathered by a U.S. citizen.
c. Beneficiaries under age 21 and unmarried are entitled to classification as immediate relatives; unmarried sons and daughters over the age of 21 to classification as family first preference; and married sons and daughters to family third preference.
d. Petition Procedures for Amerasian Child:
(1) Any alien claiming to be eligible for benefits as an Amerasian under INA 204(f)(1), or any person on the alien’s behalf, may file a petition, Form I-360, Petition for Amerasian, Widow, or Special Immigrant with DHS.
(2) You may not approve petitions for Amerasian children who are beneficiaries under this section, unlike for Amerasian children who qualify under the Amerasian Homecoming Act described in 9 FAM 502.2-4(C) below. See 8 CFR 204.4 for information on DHS processing and screening of Amerasian children cases under this section.
(3) Similar to other IV applications, the approval of an I-360 petition under INA 204 is considered to establish prima facie entitlement to status. The validity of the relationship between the U.S. citizen father and the alien beneficiary is presumed to exist. A qualified principal applicant is issued AM-1, a spouse or child AM-2, and an AM-3 to the natural mother of an AM-3. You must stipulate in the case notes whether you are issuing an IV on the basis of the Amerasian Immigration Act (this section) or the Amerasian Homecoming Act (see 9 FAM 502.2-4(C) below).
(4) Revocation of Petition for Amerasian Child: DHS regulations for the revocation of petitions for Amerasian beneficiaries under this section are provided in 8 CFR 205.1(a)(ii).
9 FAM 502.2-4(C) Amerasian Classification for Vietnamese Children Under the Amerasian Homecoming Act
a. Introduction: Congress passed the Amerasian Homecoming Act (AHA), Public Law 100-202, in 1988 to facilitate the immigration of this specific group to the United States. An additional 55,312 immigrant visas were issued to derivative family members of those applicants.
b. Who Qualifies: The 1988 Amerasian Homecoming Act (AHA) is for individuals fathered by an American citizen and born in Vietnam between January 1, 1962 and January 1, 1976. A qualified principal applicant is issued AM-1, a spouse or child AM-2, and an AM-3 to the natural mother of an AM-1. You must stipulate in the case notes whether you are issuing an IV on the basis of the Amerasian Homecoming Act (this section) or the Amerasian Immigration Act (see 9 FAM 502.2-4(B) above).
c. Case Processing: Individuals can apply for an AM-1 visa at a consular section without an approved petition. The applicant should provide:
(1) Copies of evidence showing that the applicant was born in Vietnam between January 1, 1962 and January 1, 1976.
(2) Copies of evidence establishing the parentage of the applicant and the U.S. citizen biological father (birth certificates, baptismal records, correspondence, financial support from the father, etc.).
(3) If the applicant is married, a copy of the marriage certificate and proof of the termination of any prior marriage.
d. As with other IV cases, those requiring further evidence should be refused under INA 221(g). These cases will also undergo the same termination processing as other IV classifications.
9 FAM 502.2-4(D) Alternative Amerasian Classification
An Amerasian child may immigrate under another provision of the INA, if so qualified. For example, an alien may be classified as an orphan under INA 101(b)(1)(F) (see 9 FAM 502.2-4(C)).