Family Immigration FAQs

Military Family Resources


Q1. I am an American planning to marry a foreign national. What is the easiest, fastest and cheapest way to legalize my fiance(e)’s status?

A. 1 The three main ways to immigrate through a fiancé(e) or spouse are the 1) K-1 fiancé(e) visa (only U.S. citizens can sponsor), 2) the marriage based “immigrant visa” abroad 3) or the U.S. based “adjustment of status” marriage case. Each has very specific requirements, procedures, ability to be in or work in the USA while the case is pending, travel opportunities or restrictions, processing times, costs, pros and cons, and risks. We discuss each option with you during your consultation. We find that every couple has their own unique set of facts, immigration and family history, travel and work needs, cultural or religious issues, priorities, and concerns, so that the decision for one couple may differ for another couple. Therefore, we encourage you to make an appointment to discuss your particular situation. Plus, we always consider a fourth option – other visa/green categories that might be better or faster, as well as review of the likelihood whether the foreign spouse/fiancé(e) might be a U.S. citizen and not know it.

Q2. I have a LGBT partner or spouse. Can I/we immigrate?

A2. While same sex marriage has been available in some states and countries for many years, it is only since June 2013 after the U.S. Supreme Court overturned portions of the Defense of Marriage Act (DOMA) in United States v. Windsor, that same sex marriage benefits now apply to US immigration law. The marriage must take place in a state or country where same sex marriage is legal. U.S. citizens and LPRs can now sponsor same sex spouses for green cards and fiancé(e) visas. And same sex marriage laws apply to other areas of immigration law dealing with dependents, accompanying spouses, waivers of inadmissibility or removability that require U.S. citizen or LPR spouses as qualifying relatives, as well as to visa categories where both spouses are foreign nationals. (E.g., an L-1 multinational manager can bring a same sex spouse in L-2 dependent visa status). There are still some unresolved as well as outstanding issues. Examples include ability to get divorced, as that will depend upon state or foreign laws and whether they will acknowledge marriages from another jurisdiction; treatment of same sex couples or applicants at U.S. embassies abroad where the local conditions may be unsafe (or illegal) for such couples or applicants; and sensitivity training of adjudications officers. Our office has handled a lot of these cases and we are happy to help.

Keep one thing in mind. Now that LGBT couples are to be treated like heterosexual couples, welcome to the real world of immigration law. Now the same rules apply to LGBT couples with difficult immigration histories, criminal histories, and more. The same grounds of inadmissibility or removability may apply. Therefore, just being able to marry may not solve all of your problems. Then again, it may open up new avenues for relief from removal or inadmissibility such as eligibility for waivers that were not previously available. Therefore, don’t assume getting married is the end of the story. Getting proper legal advice is essential in these situations. Also keep in mind that for all couples, just getting married does not bestow immigration status. There are still formal applications required to get a green card based on marriage.

Q3. How does the quota system work?

A3. The quota system for lawful permanent residence is extremely complex. The following is a very general description. There are two main categories of permanent immigration: family based (FB) and employment based (EB). Within each broad category there are four to five additional sub-categories that are prioritized according to the “preference” which Congress has given to the category in terms of the priority of immigrants needed first. Each sub-category is referred to as a “first preference”, “second preference,” etc.

The only category NOT subject to a preference, and therefore, no quota, is “immediate relative,” or the parents, spouses and minor children (single, under 21 years old) of U.S. citizens. The preferences are as follows:


  • First: Unmarried Sons and Daughters of Citizens
  • Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:
    1. Spouses and Children
    2. Unmarried Sons and Daughters (21 years of age or older)
  • Third: Married Sons and Daughters of Citizens
  • Fourth: Brothers and Sisters of Adult Citizens


  • First: Priority Workers: Multi-national executives and managers, Outstanding researchers and professors, and Aliens of Extraordinary ability
  • Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability (includes those requiring labor certifications and those with national interest waivers)
  • Third: Skilled Workers, Professionals, and Other Workers
  • Fourth: Certain Special Immigrants
  • Fifth: Employment Creation ($1million/$500k investors)

Each preference category, as well as the lottery (diversity program), and family unity program are subject to numerical limitation. That is, a finite number of visas are available in each category every year. Congress long ago set the numerical limitations by country and category. Only Congress can change immigration categories and numbers. Each country of origin is further assigned a “foreign state chargeability,” or a maximum number of visas for that preference category. The appropriate country is usually your country of birth, not citizenship. When the visas in some categories do not get used up, sometimes the unused visas in that category “spill over” into another category. Again, there is a complex formula devised by the U.S. Congress.

If demand for nationals of a particular country exceeds supply, a waiting list or a backlog forms. Over the last 8-10 years, the only countries with some employment-based backlogs are India, China, Mexico, and the Philippines. This is consistent with current and historical migration patterns due to socio-economic, political, cultural education pressures, and geographic conditions in those countries and the resulting pressures on US immigration caused by those conditions. However, even in the “worldwide” category, which includes every country except the ones just mentioned, there are quota backlogs in all family based (FB) preference categories, and in some employment based preferences (EB), usually EB-3 or jobs requiring a bachelors degree or less.

A new “batch” of visas becomes available on October 1 of every year, the start of the government’s fiscal year. Generally, the quota tends to move along more quickly (a few weeks to a few months at a time) between October and the following June. From June to the next October, things tend to slow down again. A person’s place in line in the quota is established in chronological order of receipt of a visa petition or labor certification application (PERM). In other words, people from the same country in the same category cannot jump in line ahead of you if their petitions were filed later than yours.

Your place in line in the quota or backlog is called the “priority date.” For FB and EB cases (EB cases that do not require a labor certificate), the priority date is established on the date a “visa petition” is “filed” (received by the USCIS). For EB cases requiring a labor certification, the priority date is the date the labor certificate application (PERM) is “filed” or received by DOL. For lottery winners, the place in line is established by the number given to the winner at the time of selection.

Prior to October 1, 2015, you could not file for the final phase of immigration, called “adjustment of status” in the U.S., or “immigrant visa processing” at a U.S. Consulate abroad, until your priority date was “current,” or you reached the front of the line in the quota.  However, beginning October 1, 2016, the State Department started posting both final adjudication dates (the date when an adjustment or immigrant visa case can be decided) as well as filing dates, which can be earlier than the final adjudication dates. This is especially important for people in the US seeking to file adjustment of status because they can file for work permits at the same time as adjustment of status while the adjustment case is pending for the quota to become current.

You can monitor the progress of the quota and early filing date every month by watching the State Department’s “Visa Bulletin.” When you look at it, you will see a table of the FB/EB categories down the left side and countries across the top. Where each preference and country intersects, there may be a “C” which means the quota is “current,” open, or there is no line. If you see a date, that means visas are available to applicants with that priority date or earlier. If you see a “U”, that means visas are unavailable to everyone in that category from that country. When that category opens up again, priority dates will be preserved.

There are complicated rules for “cross-charging” priority dates, preserving and capturing dates, etc. These should be discussed on an individual basis with your attorney. Cross-charging has to do with taking advantage of a dependent’s country of birth. Other issues deal with preserving priority dates when changing categories, or issues dealing with children who want to preserve their status as minors under 21, but where quota delays cause them to turn 21 or older before the case can be completed. (e.g., Child Status Protection Act).

There are some other visa categories that have annual caps or allotments. And, each has different rules as to whether those who did not get visas in a given year have to start again the following year or get to remain in line for the following year. The H-1B and H-2B annual caps, for instance, require a new application every year if the applicant was not selected in years of high demand. On the other hand U visa applicants and those people granted cancellation of removal in front of an immigration judge, get to stay in line for the following year without having to reapply.