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A US citizen and legal permanent resident may apply for his or her spouse and children. US citizens may also apply for parents and brothers and sisters. The spouse, minor child and parents of US citizens are immediately available to obtain residence. The other family members, such as spouses and children of permanent residents go on the priority wait list, meaning that they must wait until the priority date becomes permanent to be eligible to file for a green card. In order to obtain a green card in the United States, the foreign national must have entered the country legally. Certain aliens with old petitions filed prior to April30, 2001 may be eligible to adjust pursuant to INA 245(i).


The family-based category and country of origin is significant because countries such as Mexico and the Philippines are over subscribed. That means that those on the wait list often have significant wait-times to be eligible to apply for residence. When a petition becomes current, the spouse and children may adjust status if they have remained in lawful status; if not, they will have to return to their home country for visa processing.

If during the period of waiting, the permanent resident petitioner becomes a U.S. citizen, the spouse and children would be eligible to adjust to permanent residence even if the wife and children beneficiaries have overstayed.

When a sponsoring permanent resident becomes a U.S. citizen, the quota category moves up to make the alien spouse and children under 21 immediate relatives, and hence immediately eligible for permanent residence. Changes in personal circumstances, such as marriage, affect the priority category and may even remove the individual from the list completely. Individual circumstances such as previous crimes committed by the alien may affect rights, and the case should be professionally evaluated.

Please call our office to evaluate any case.

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