Immigration: Petitioning Siblings - Is it worth it?

By Licelle Cobrador, Esq.

The pandemic was cataclysmic for many, if not everyone. Some experienced incalculable loss. Most of us reassessed our priorities and relationships. COVID-19 triggered several individuals to make major life changes, from new jobs to engagements and major moves. Our firm witnessed the rise in family-based visa petitions – fiancé/e visas, spouse petitions, petitions for parents and siblings. This article will focus on the sibling petition.

 Government agencies in the United States were already delayed in their processing; however, now even more delayed in view of the health needs of their staff and the slowdowns in societal functioning. While the United States Citizenship and Immigration Services (USCIS) has announced new actions to reduce backlog, expand premium processing and provide relief for work permit holders last month, decisions are not expected to arrive quickly.

The more significant issue for sibling petitions remains to be the long wait. For Filipino citizens, they are currently processing those with priority date of August 22, 2002, and earlier. Whereas, for all others (except for citizens of China, India and Mexico), they are processing those with priority date of March 22, 2007, or earlier. A priority date is issued by the U.S. Department of State to determine an individual’s place in line in the visa queue.

Background

Congress prescribed a limit on the number of foreign-born individuals who are admitted to America annually as family-based immigrants INA § 201(c)(1)(A)(i). A formula that imposes a cap on every family-based immigration category except for the “immediate relatives” (spouses, minor unmarried children and parents of U.S. citizens) controls family-based immigration. The formula allows unused employment-based immigration visas in one year to be allotted to family-based immigration next year, while unused family-based visas in one year will be added to the cap the following year. This indicates that there are variations from year to year in family-based immigration. Thus, there are long waiting periods for most family-based visas because of the numerical cap.

INA § 203(a) sets the preference classes allotment for family-sponsored immigrant visas. As mentioned, siblings are in the fourth preference. There are 65,000 F-4 category visas per year, plus any numbers left over from the higher preferences, with a per-country limit of seven percent (7%).

It’s erroneous to assume that the U.S. Department of State Visa Bulletin (Visa Bulletin) moves forward with some regularity, month by month. Granting there are periods of visa retrogression (when the cut-off dates that determine visa availability move backward instead of forward), a good number of immigration professionals presumes that demand for visas evens out over time. However, experienced practitioners know that it’s impossible to predict any visa availability with any certainty. After all, the Visa Bulletin shifts forward or backward based on the demand in the various visa categories. Moreover, the system for allocating visas and determining when a priority date will become current is quite complex and vulnerable to factors beyond control.

So, is it still worth it to petition one’s sibling? Circumstances surrounding each individual and family are different.

Procedure

The Fourth preference is comprised of brothers and sisters of a U.S. citizen over twenty-one (21) years of age. Siblings include children from at least one common parent. The legal definition of sibling includes stepsisters and brothers. However, both the U.S. citizen and foreign sibling must be eighteen (18) years of age or younger when the parents married, and the parents stayed married. It also includes adopted siblings –both must be under sixteen (16) years old when adopted and the legal conditions of a valid marriage were met. Filing an I-130 petition or Petition for Foreign Relative is required to bring one’s sibling to the United States. This denotes you are asking the U.S. government to recognize your relationship with your sibling. Therefore, it’s vital to submit evidence of a legitimate relationship –such as birth certificates (in the case of Filipinos, Philippine Statistics Authority/ PSA issued birth certificates), parents’ marriage certificate and adoption decree/s, if applicable. After submitting the I-130 packet (immigration forms and supporting documents), the USCIS will issue a receipt notice. The notice confirms the receipt of the case by the USCIS as well as payment of the filing fees. It also contains a receipt number to track the case online. Then it’s waiting time. Supposing everything was correct and accurate, the petition will be approved in two to six years. The waiting time may be lengthier in some cases. Approval of the I-130 signifies that the U.S. government is acknowledging that there is a qualifying relationship.

Once the priority date becomes current, communications will be with the National Visa Center/ NVC. At this stage, the U.S. citizen petitioner needs to file an affidavit of support, immigrant visa application forms and supporting documents. Upon completion of the formalities with the NVC, an interview will be scheduled. If approved, an immigrant visa will be issued. The sibling should move the United States before the visa expires. The green card will be delivered to the address provided to the USCIS once the sibling reaches the United States.

For those siblings who are already physically present in the United States, the sibling will be considered eligible for adjustment of status/AOS to obtain a green card. It must be underscored that the AOS could only be filed if the Visa Bulletin priority date for the F-4 category is current, and the beneficiary sibling has noted her or his status on the student or work visa. There are exceptions covered by the Life Act INA § 245(i) for those who entered the U.S. without inspection (EWI) and the petition was filed on her or his behalf by April 30, 2001. In reality, only a few individuals satisfy this requirement.

Conclusion

The circumstances surrounding sibling petitions highlight the importance of immigration reform.  Immigration policy has been anchored on family reunification for more than a century. Undeniably, family unity is a strong shared value that surpasses ideological differences. And legislation should reflect that core value, Waiting for ten to over twenty years for a sibling to come through is ridiculous. There must be a better way.#

*About the author 

Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.

Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York. 

Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.

Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law.