Can immigrating father of U.S. citizen bring his young son?

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Question:

I came to the U.S. originally as a student, and have since gotten a green card, followed by U.S. citizenship. I am sponsoring my widowed father, in Russia, for U.S. residence. However, he and my mother had a child late in life, and he now is the sole caretaker of a two-year-old (my brother). Is there any way he can bring his son along to the United States?

Answer:

Unfortunately, the parents of U.S. citizens cannot bring their own children into the U.S. on the same visa petition.

The reason for this is technical (and somewhat illogical): So-called “immediate relatives” (such as the parents of adult U.S. citizens) may not automatically bring “derivatives” (spouse and children) to the U.S. by means of the same visa petition.

The U.S. citizen petitioner must be able to separately file a visa petition (on Form I-130) for each person who intends to immigrate. But to do that, the law must recognize a direct, qualifying relationship between the U.S. citizen and the would-be immigrant. And even if such a relationship exists, and the U.S. citizen files a separate I-130 for each would-be immigrant, as a practical matter, this doesn't do you a whole lot of good unless, after approval, they are allowed to immigrate at the same time.

But they won't be able to immigrate at the same time. Here’s the problem: As a U.S. citizen, you can, in fact, file a separate visa petition for your brother. The siblings of U.S. citizens, however, fall into the fourth preference category of the visa preference system. Unlike immediate relatives, they face an annual limit on the number of visas available – and thus a long wait, because far more people apply each year than the supply allows for.

In fact, the wait in the fourth preference category is at least 12 years for immigrants from most countries, and over 20 in a few countries.

The only hope given what you’ve described (and it’s not much of one right now, given the child’s current age) is for your father to immigrate to the U.S. and then, as a permanent resident, petition for his son to join him. However, the son of a U.S. lawful permanent resident falls into category 2A of the visa preference system, and the wait for a visa is, on average, about five years. Moreover, your father will not be able to take his green card and go back to Russia to live without risking losing the green card based on abandonment.

In such a situation, consulting with an experienced immigration attorney would be a good idea, both to talk about strategy, explore any options that might not be obvious from the facts you’ve described, and for help with making sure the paperwork gets done right the first time around, so as to avoid additional delays.

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