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Not all family relationships serve as a basis for permanent residence. Also, U.S. citizens and U.S. permanent residents are treated differently for family immigration purposes. Family-based immigration consists of an immediate relative category and four preference categories.

Immediate Relatives
§201(b) of the Immigration and Nationality Act (“INA”) defines “immediate relatives” to include:
1. spouses,
2. minor children (under the age of twenty-one), and
3. parents of U.S. citizens (if the citizens are at least 21 years old).
4. This category is clearly reserved for immediate relatives of U.S. citizens, not permanent residents. There is no limit to the number of immediate relative visas that may be issued in this category in any given year.

Spouses
1. In order to obtain immigration benefits available to a “spouse”, there must be a valid and subsisting marriage between the parties.
2. Generally, marriage is valid for immigration purpose if it is recognized by the law of the state where it occurs. However, a marriage between persons of the same sex will not be valid for immigration purposes, regardless of its possible validity where it occurred. Marriages that are against public policy, such as polygamous or incestuous marriages, are not valid for immigration purposes even if valid in the state where it occurred. Proxy marriages are specifically excluded by the INA, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.
3. The marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain spouses of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view must be “viable” to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide. However, if the couple is legally separated (i.e., by written agreement recognized by a court, or by court order) the alien no longer qualifies as a “spouse” for immigration purposes even through the couple has not obtained a final divorce.
4. As a result of the Immigration Act of 1990, immediate relative status may be granted to an alien who was the spouse of a U.S. citizen for at least two years at the time of his or her death and not then legally separated, provided the alien spouse files a visa petition as an immediate relative within two years and has not remarried. This applies even if the deceased spouse was not a U.S. citizen for the entire two-year period before his or her death. However, the deceased spouse must have been a U.S. citizen at the time of his or her death.

The Family-Based Preference Categories
Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of U.S. citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: (a) spouses and minor children of permanent residents, and (b) unmarried sons or daughters (but not their children) of permanent residents. A married son or daughter of the U.S. citizen falls under the third preference category. The fourth preference category permits U.S. citizens over the age of twenty-one to petition for their brothers and sisters to obtain permanent residence.

These preference categories are subject to annual visa limits. This means that there are visa backlogs in some preferences. Available visas are issued to beneficiaries in order of their priority date, which is the date that their petition for permanent residence (form I-130) is filed by the U.S. citizen or permanent resident.

Derivative Status for Spouses and Children of Family Based Immigrants
The immediate relative category normally does not confer derivative status on a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. Notwithstanding the unavailability of derivative status, some family members of an immediate relative may be entitled independent immediate relative status. For example, an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary’s marriage to the petitioner will qualify as a stepchild. However, a separate visa petition must be filed for each immediate relative.

In contrast, the spouse or child of a preference immigrant accompanying or following to join him or her, is entitled to the same status and the same order of consideration as the principal immigrant. The derivative classification of such spouse or child attaches immediately upon approval of the principal alien’s classification, and requires no separate visa petition.

Conditional Permanent Residence in the Case of Recent Marriages
Permanent residence conferred upon an immigrant based on a marriage which is less than two years old at the time the person obtained such status is given conditional permanent residence rather than full permanent residence. The petitioner and the beneficiary must jointly file a petition to remove the conditions within 90 days of the second anniversary of the alien obtaining condition permanent residence. If the petitioner and beneficiary fail to file the joint petition within the 90 day period, a waiver must be obtained in order to avoid a loss of permanent residence status.

Waivers of conditional status are available in the following situations:
1. Extreme Hardship – A waiver of the joint petition requirement may be granted if the noncitizen spouse can show that he or she would suffer “extreme hardship” if deported from the United States. Such a waiver is often sought when the citizen or permanent resident spouse fails or refuses to join in the removal petition. The regulations state that, while any removal from the United States is likely to result in some degree of hardship, “only in those cases where the hardship is extreme should the application for a waiver be granted.”
2. Termination of Marriage – To qualify for this waiver, the conditional resident must establish that he or she entered into the marriage “in good faith,” that the marriage was legally terminated, and that the noncitizen was “not at fault” in failing to meet the joint petition requirement.
3. Battered Spouse or Child – The “battered spouse” provisions authorize a waiver of the joint petition requirement if the conditional resident entered into the marriage “in good faith” but during the marriage the noncitizen spouse or child was battered or was subjected to extreme cruelty by the citizen or resident spouse. The noncitizen must also show that he or she was not at fault in failing to meet the joint petition requirement.
4. Death of U.S. Citizen or Permanent Resident Spouse– A conditional resident may request a waiver of the joint petition requirement if the noncitizen entered into the marriage in good faith, but the U.S. citizen or permanent resident spouse subsequently died. While the conditional resident still must present documentary evidence to prove that the marriage was entered into in good faith, no showing of extreme hardship is necessary.

In either case, the United States Citizenship and Immigration Services will have the opportunity to review the legitimacy of the marriage prior to removing or waiving the condition.

Affidavit of Support Requirement for Family Based Immigration Cases
§531 of the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRIRA”) amended INA §212(a)(4) to require virtually all aliens immigrating through one of the family-based categories to obtain a legally binding affidavit of support as a condition of admission. Sponsors signing the affidavit must be at least 18 years old, domiciled in the United States, and able to support both the sponsor’s and the immigrant’s families at an annual income level equal to at least 125 percent of the federal poverty guideline. Sponsors on active duty in the U.S. Armed Forces who are petitioning for their spouse or child are only required to show the ability to support their family at an annual income equal to 100 percent of the federal poverty guideline.

Section §551 of IIRIRA amends INA §213A to make affidavits of support legally enforceable for at least 40 qualifying quarters (effectively 10 years) or until the beneficiary has become a U.S. citizen. Sponsors must notify the DHS whenever they move during the effective period of the affidavit, and are subject to penalties for non-compliance.