The F-1 first preference family-based green card is for persons who are unmarried children over 21 years old of a U.S. citizen. The F-3 third preference family-based green card is for persons who are married children of a U.S. citizen. Unlike the children (unmarried and under 21 years old) under the Immediate Relative system, the children of U.S. citizens under the family preference (F-1 & F-3) green card categories are subject to the annual visa quotations that usually results in additional time in obtaining their green card due to visa availability backlog problems.
- 1.
- 2.
- 3.
- 4.
- 5.
- a.
- b.
- c.
- 6.
- a.
- b.
- 7.
- a.
Table of Contents
The more distant children of U.S. citizens can be divided into 2 types:
Distant Family Members of U.S. Citizen (F-1 Married Child & F-3 Unmarried Adult Child)
- First Preference (F-1): Unmarried children over 21 years old of U.S. citizens
- Third Preference (F-3): Married children (with their spouse and unmarried minor children) of U.S. citizens
The original statutory wording for qualified children in family-based green card petitions can be found in 8 CFR 204.2(d)(1).
The 2 types of children qualified under the family preference green cards are:
First Preference (F-1): Unmarried children over 21 years old of U.S. citizens
Under the F-1 first preference family-based green card category, the qualified foreign person must be (1) over 21 years old, (2) unmarried, and (3) the child of a U.S. citizen.
Third Preference (F-3): Married children (with their spouse and unmarried minor children) of U.S. citizens
Under the F-3 third preference family-based green card category, the qualified foreign person must be (1) married and (2) the child of a U.S. citizen. The spouse and dependent children (unmarried and under 21 years old) of the F-3 married child of a U.S. citizen can be qualified as a derivative person to obtain a green card along with the U.S. citizen’s married child under the F-3 third preference family-based green card petition.
Adopted Children
An adopted child of a U.S. citizen can also qualify for an F-1 & F-3 family preference green card if (1) the adoption was finalized before the child turned 16 years old, (2) the adoptive parents had legal custody for 2 years (which can be before or after the adoption), and (3) the child has lived with the adoptive parents for 2 years (which can be before or after the adoption). The legal custody must have been gained through a formal court procedure and the adoptive parents must show that they had exercised primary parental control over the adopted child if the adopted child continued to live in the same house as their biological parent during the 2-year residence requirement.
The adopted child’s natural sibling who is (1) under 18 years old, (2) the natural sibling shares at least one biological parent with the adopted child, and (3) has been adopted or will be adopted by the same adoptive parents can also qualify under the F-1 or F-3 family preference green card category.
Step-Children
A step-child of a U.S. citizen can also qualify for an F-1 or F-3 family preference green card petition if the marriage between the U.S. citizen and the foreign spouse happened before the child turned 18 years old.
Marriage Status Change for Children of U.S. Citizens
If the minor child of a U.S. citizen under the immediate relative (IR) system gets married before they obtain the green card, their immediate relative (IR) family-based green card petition will be lowered to the third preference family-based green card petition (F-3 married children of U.S. citizens) which will be affected by annual visa quotations and will typically have a longer wait time for their green card.
If the married child of a U.S. citizen under the third preference family-based green card petition (F-3 married children of U.S. citizens) gets divorced before they obtain the green card, their third preference family-based green card petition will be upgraded to the first family preference system (F-1 unmarried children of U.S. citizens).
In both situations, the priority date of the original family-based green card petition can still be used, however, the USCIS service center, National Visa Center, or consulate or embassy will need to be notified of this change in marital status so they can change it into the appropriate green card category for the family-based green card petition.
The F-1 and F-3 family preference green card petitions have three main requirements that need to be satisfied: evidence must be provided to the USCIS to show that the (1) the sponsoring person must be a U.S. citizen, (2) the family relationship between the foreign child and the U.S. citizen is qualified and real, (3) the foreign person will not become a public charge (typically the U.S. citizen must have income that is at least at the 125 % of the federal poverty level), and (4) the foreign person is admissible to enter the United States.
Evidence Required for the F-1 and F-3 Family Preference Green Card
A general (not exhaustive) checklist of what is required for the F-1 and F-3 family preference green card is listed below. The evidence provided for the F-1 or F-3 family preference green card petition must show:
The person sponsoring the F-1 or F-3 family preference green card petition is a U.S. citizen
- Two passport photos of the U.S. citizen
- U.S. passport (valid and unexpired)
- Birth certificate
- Naturalization Certificate or Certificate of Citizenship (issued by the USCIS)
- Consular Report of Birth Abroad (Form FS-240) issued by a U.S. consulate or embassy
- U.S. consular officer’s verification of U.S. citizenship with valid U.S. passport
- Documents that show legal name change (e.g., court judgment of name change, marriage certificate, divorce decree, adoption decree)
There is a family relationship between the U.S. citizen and their Foreign child
- Two passport photos for each person
- Marriage certificate between U.S. citizen and their foreign spouse
- Birth certificates (it should show names of both parents)
- Documents that show legal termination of all prior marriages of the U.S. citizen and their foreign spouse (e.g., divorce decree, annulment order, death certificate of prior spouse)
For adopted children, additional documents must be provided:
- Final adoption decree (must have taken place before the child turned 16 years old and it should include the name of the adoptive parents, the date and place of adoption)
- Documents that show there were 2 years of legal custody of the adopted child
- Documents that show there were 2 years of joint residency (living at the same address) with the adopted child
The foreign person will not become a public charge in the United States
- Affidavit of Support (Form I-864)
- Documents that show the U.S. citizen’s income is at least at the 125 % of the federal poverty level (e.g., most recent tax returns, bank statements)
The foreign person is admissible to enter the United States
- Passport (expiration date must be more than 6 months than the time intended to stay in the United States)
- Two passport photos
- Police certificates (it should include the country of residence and all countries that the person has lived for at least 6 months since 16 years old)
- Sealed medical examination form
If the person is filing for an adjustment of status, the foreign person must provide additional documents to show that they have been maintaining a valid nonimmigrant visa status during their time in the United States:
- Passport pages (it should include biographical page, related U.S. visas, admission stamps, parole stamps)
- Arrival/Departure Record (Form I-94)
- Documents that show the persons valid nonimmigrant status (e.g., I-20, I-797)
- Form I-864 (Affidavit of Support Under Section 213A of the INA) OR Form I-864EZ (Affidavit of Support Under Section 213A of the INA) *Petitioner must be at least 18-year-old to sign
- Documents that show the financial support for or financial condition of the person (e.g., Form W-2 for the past three years, employment verification letters)
- Report of Medical Examination and Vaccination Record (Form I-693)
- Family-based green card petition (it should include Form I-130 and all required documentation) if filing the adjustment of status (Form I-485) concurrently
- Receipt notice or approval notice (Form I-797) of the family-based green card petition (Form I-130) if not filing the adjustment of status (Form I-485) concurrently
The original statutory wording for the evidentiary requirements of family-based green cards for children can be found in 8 CFR 204.2(d)(2).
The total time an F-1 or F-3 family preference green card takes is consisted of the processing time for (1) the F-1 or F-3 family preference green card petition (Form I-130) with the USCIS and (2) the change of status when the person’s priority date becomes current by filing the Form I-485 application if adjusting status within the United States or the DS-260 application if doing consular processing at a U.S. consulate or embassy located outside the United States.
Factors that influence the F-1 or F-3 family preference green card processing time usually include but are not limited to where the person (or spouse) was born, if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center, National Visa Center (NVC), and the U.S. consulate or embassy.
A rough estimate of the F-1 family preference green card Form I-130 petition (unmarried adult child of U.S. citizen) processing time can be around 8 to 53 months. A rough estimate of the F-3 family preference green card Form I-130 petition (married child of U.S. citizen) processing time varies widely from 21 to 141 months. Premium processing is not available in either the F-1 family preference green card petition (unmarried adult child of U.S. citizen) or the F-3 family preference green card petition (married child of U.S. citizen). Current estimates of the processing time can be checked here.
Priority Date for Status Change
After the USCIS approves the F-1 or F-3 family preference family-based green card (Form I-130), the person will then wait for their priority date to become current to apply for a change of status into a green card holder (lawful permanent resident). The priority date for the F-1 or F-3 family preference green card petition is the date that the USCIS receives the immigration petition (Form I-130).
There are two parts in the processing time for a change of status: (1) the time to when the person’s priority date becomes current which can range from no wait time to multiple years depending on what country the person was born in, and (2) the time to process Form I-485 for adjustment of status or DS-260 for consular processing which a rough estimate can range from 4 to 15 months.
For F-1 family preference green card petitions (unmarried adult child of U.S. citizen), the wait time for the person’s priority date to become current can roughly be around 7 years (with Mexico around 21 years). For F-3 family preference green card petitions (married child of U.S. citizen), the wait time for the person’s priority date to become current can roughly be around 13 years (with Mexico around 24 years). For people born in certain countries (based on country of birth and not country of citizenship) such as Mexico or the Philippines, the wait time for their priority date to become current is usually longer than other countries under family preference green card petitions.
The reason as to why there are different wait times for a priority date to become current is due to the total limit on how many green cards (immigrant visas) can be given out each year and a separate limit on how many green cards are allotted for each country. There are usually not enough available visas (i.e, amount of green cards that can be given out) for family preference green card petitions each year due to high-volume immigration so people would have to wait for their visas (green cards) to become available which would be based on when their priority date becomes current in the monthly Visa Bulletin released by the U.S. Department of State (DOS).
Cross-Chargeability
The cross-chargeability rule can be used in the F-3 family preference green card petitions by the married children of U.S. citizens and their spouse and unmarried minor children. Cross-chargeability is often used when the person’s country of birth has a visa backlog problem but the country of birth for the person’s spouse does not. The person born in the country that has a visa availability backlog problem will use the cross-chargeability rule to be charged against (use the quota of) the spouse’s country instead (this usually results in obtaining the green card much earlier). For example, a person born in China (which usually has a visa availability backlog problem) with a spouse born in South Korea (which does not have a visa availability backlog problem): both of them can use the quota of South Korea instead of China when they apply to change into their green card visa status. It does not matter which person is the primary person pursuing the green card petition.
Minor children can be charged to either parent’s country of birth, or in some circumstances the child can be charged to a third country that neither parent was born in or had residence in when the child was born. For example, both parents were born in Japan but their child was born in China during a temporary vacation there: the child can be charged against the quota of Japan. Under most circumstances, derivative beneficiaries (such as the spouse or children of green card visa applicants) cannot be eligible to apply to change into their green card visa status before the principal green card visa applicant.
Please note that parents cannot use their minor children’s country of birth under the cross-chargeability rule. For example, both parents were born in China and their child was born in Japan. The parents cannot use Japan which is their child’s country of birth and would still need to use China which is their own country of birth to wait for their green card.
Changing into the green card visa status (the lawful permanent resident immigrant visa status) is the final step in being able to work freely and live permanently in the United States. There are two ways to obtain the green card visa status: adjustment of status and consular processing.
Adjustment of status is usually for a person who is already in the United States with a valid nonimmigrant visa status and has maintained a lawful visa status throughout their time within the United States. On the other hand, consular processing is for a person living outside the United States or for a person who is ineligible in adjusting their status in the United States.
For a person who is residing overseas (outside the United States) or a person who is ineligible for an adjustment of status with the Form I-485 application, consular processing must be done to obtain the F-1 or F-3 family preference green card visa status (i.e., lawful permanent resident). Consular processing usually involves the person attending an in-person interview at the U.S. consulate or embassy located in their home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.”
After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport). In other words, the person would have to physically enter the United States after their interview approval as the final step for their F-1 or F-3 family preference green card visa status to be activated.
For a person who is already in the United States with a valid nonimmigrant visa, there are usually two options available to obtain their F-1 or F-3 family preference green card visa status (Lawful Permanent Resident):
(1) Adjustment of Status: this is the more commonly chosen option where the person would file a Form I-485 application to adjust their status without leaving the United States. The person would attend an in-person interview at a local USCIS office in the United States and the interview approval would serve as the final step for their F-1 or F-3 family preference green card visa status to be activated.
The adjustment of status application (Form I-485) can be filed when the person’s priority date becomes current in the Visa Bulletin which means that there are no backlogs in visa availability for the person’s country of birth (not country of citizenship). This can happen while the green card petition (Form I-130) is still pending (i.e., before approval) with the USCIS or after the green card petition (Form I-130) is approved by the USCIS. It can also happen in concurrent filings (Form I-130 and Form I-485 sent together) where the person’s priority date is already current at the time of filing the green card petition (Form I-130) to the USCIS, however, this rarely happens for F-1 or F-3 family preference green card petitions.
When the adjustment of status application (Form I-485) is filed, applications for the employment authorization document (Form I-765, commonly known as the “EAD card”) and the travel document (Form I-131, commonly known as “Advance Parole”) can also be filed at the same time.
The EAD card allows unrestricted employment where a person can change their job freely and can legally work for any employer in the United States, unlike a work visa such as an H1B visa which restricts a person to work for a specific employer in the United States.
Advance parole allows a person to travel internationally while their adjustment of status is still pending. If a person has a pending adjustment of status application (Form I-485) with the USCIS but leaves the United States without advance parole and does not have a certain valid nonimmigrant visa status (H1B visa, H4 visa, L1 visa, L2 visa, K3 visa, K4 visa, V visa) that allows international travel, their adjustment of status will be considered abandoned.
(2) Consular Processing: this is usually chosen if a person cannot show that they have maintained their lawful visa status in the United States or when the processing time for consular processing is much faster than the adjustment of status.
The spouse and dependent children (unmarried and under 21 years old) of the U.S. citizen’s married children can also qualify for a green card by being listed as a derivative person under the married child’s F-3 third preference family-based green card petition.
The Child Status Protection Act (CSPA) protects certain children under the family-based green card petitions from aging out and losing their eligibility for the green card (or a particular visa category). Children can be seen as “aged out” if they turn 21 years old before their adjustment of status (Form I-485) with the USCIS or their application for an immigrant visa with the U.S. Department of State (i.e., consular processing) is approved.
The CSPA determines the principal beneficiary (the person being sponsored) and their derivative children’s (the children of the person being sponsored) age by subtracting the amount of time USCIS took to approve the family-based green card petition from that person’s biological age at the time their visa becomes available. If the person’s CSPA adjusted age is under 21 years old when their priority date became current under their visa category, the person can retain that original status and their family-based green card petition will continue to proceed under that visa category.
Children using the CSPA adjusted age must file for adjustment of status or consular processing to obtain their green card within one year of their priority date becoming current. If the child does not seek to change into the green card status within one year, then “extraordinary circumstances” must be shown to use that CSPA adjusted age.
Children of U.S. Citizens
The CSPA does not affect the children of U.S. citizens (who are never seen as aged out) because the law already allows them to preserve the status that they held when their family-based green card petition was filed. If a child of the U.S. citizen was unmarried and under 21 years old when their immediate relatives family-based green card petition was filed, they can still proceed with that original immediate relatives family-based green card petition even if they turn 21 years old. However, if the child of the U.S. citizen under the immediate relatives family-based green card petition gets married before obtaining their green card, they will be downgraded to the third family preference (F-3 Married children of U.S. citizens).
CSPA Children of U.S. Citizen's Family Members
The CSPA mainly affects the derivative children of the principal beneficiary (sponsored family member’s child) under the third preference (F-3 Married children of U.S. citizens) or fourth preference (F-4 Brothers or sisters of U.S. citizens). For example, a U.S. citizen sponsoring a third preference family-based green card petition for his married daughter and her derivative husband and unmarried minor son: when the derivative unmarried minor son turns 21 years old, he loses his derivative status and his parents would need to file a new second-preference (F-2B) family-based green card petition (which cannot use an old priority date) for him after they obtain their own green cards unless he is protected by the CSPA adjusted age.
Child Status Protection Action (CSPA) Age Calculation
In most cases, the Child Status Protection Action (CSPA) age is calculated by:
- (A)
- the age when the priority date becomes current (the date used for calculation can be either the exact priority date or the first day of the month that the visa became available in the visa bulletin, whichever date is later)
MINUS
- (B)
- the number of days the family-based green card petition was pending with the USCIS before it was approved
- (A)
- the age when the priority date becomes current (the date used for calculation can be either the exact priority date or the first day of the month that the visa became available in the visa bulletin, whichever date is later)
MINUS
- (B)
- the number of days the family-based green card petition was pending with the USCIS before it was approved
If the calculated age under the CSPA formula is under 21 years old, then the person can continue to file for an adjustment of status (Form I-485) or consular processing (Form DS-260) for their family-based green card as a “child” within one year of their priority date becoming current. On the contrary, if the calculated age under the CSPA formula is at or over 21 years old, then the person is not protected as a child under the CSPA and is seen as “aged out” of their family-based green card petition.
For example:
Qualified Adjusted CSPA Age
Kylie is 21 years, 11 months old
Minus (-) 1 year
20 years, 11 months old
Date when priority date becomes current
Amount of time her mom’s petition was pending
CSPA age for Kylie
Kylie is 21 years, 11 months old
Minus (-) 1 year
20 years, 11 months old
Date when priority date becomes current
Amount of time her mom’s petition was pending
CSPA age for Kylie
Kylie is 21 years, 11 months old
Date when priority date becomes current
Minus (-) 1 year
Amount of time her mom’s petition was pending
20 years,
11 months old
CSPA age for Kylie
Kylie will be qualified as a child for the green card petition under the CSPA adjusted age
Unqualified Adjusted CSPA Age
Kylie is 22 years, 0 months old
Minus (-) 1 year
21 years, 0 months old
Date when priority date becomes current
Amount of time her mom’s petition was pending
CSPA age for Kylie
Kylie is 22 years, 0 months old
Minus (-) 1 year
21 years, 0 months old
Date when priority date becomes current
Amount of time her mom’s petition was pending
CSPA age for Kylie
Kylie is 22 years, 0 months old
Date when priority date becomes current
Minus (-) 1 year
Amount of time her mom’s petition was pending
21 years,
0 months old
CSPA age for Kylie
Kylie will not be qualified as a child for the family-based green card petition under the CSPA adjusted age.
If the spouse or dependent children (unmarried and under 21 years old) of the F-3 married child of a U.S. citizen did not obtain a green card at the same time as the F-3 married child, they can still obtain their green card without filing a separate family-based green card petition (Form I-130) and they do not need to wait for a priority date to become current. In other words, the spouse or dependent children (unmarried and under 21 years old) of the F-3 married child of a U.S. citizen can obtain their green card (without waiting) at a different time point than the F3 green card holder, however, their family relationship with the F3 green card holder must have existed before the F-3 family preference green card petition was approved.
There are 3 main ways for the family members of the U.S. citizen’s F-3 married children to follow to join:
- (1)
- The U.S. consulate or embassy can be notified that the F-3 married child is now a green card holder and that their spouse or children can apply for an immigrant visa.
- (2)
- If the F-3 married child adjusted to their green card visa status (permanent residency) in the United States, an action on an approved application or petition (Form I-824) can be filed.
- (3)
- If the F-3 married child is in the United States but has not adjusted to their green card visa status (permanent residency) in the United States yet, the adjustment of status (Form I-485) and the action on an approved application or petition (Form I-824) can be filed concurrently (at the same time).
The F-1 family preference green card petition is for a U.S. citizen’s unmarried adult child (over 21 years old) and the F-3 family preference green card petition is for a U.S. citizen’s married child. Step children and adopted children of U.S. citizens are included as children under the F-1 or F-3 family preference green card petitions.
The spouse and dependent children (unmarried and under 21 years old) of the U.S. citizen’s F-3 married child can qualify for a green card by being listed as a derivative person under the married child’s F-3 family preference green card petition. The derivative children of F-3 married children of U.S. citizens can be protected by the Child Status Protection Action (CSPA) from aging out of their family-based green card petition.
If you have an F-1 family preference (unmarried adult child of U.S. citizen) or F-3 family preference (married child of U.S. citizen) green card immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify what type of family preference green card the client is qualified for and whether there are other green card options available to the client. We will work closely with our clients to prepare their family-based green card petition and we will also strategize on how the family-based green card petition should be presented in the filings and in the interview to achieve the best chances of approval. It is advised and common practice to retain an immigration attorney for certain unusual family-based green card petitions due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
- Step 1:
- Step 2:
- Step 3:
- Step 4:
- Step 5:
- a.
- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
- Step 1:
- Step 2:
- Step 3:
- Step 4:
- Step 5:
- a.
- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
- Step 1:
- Step 2:
- Step 3:
- Step 4:
- Step 5:
- a.
- b.
- c.
- Step 6:
- Step 7:
- Step 8:
- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued
RELATED ARTICLES
- Children of U.S. Citizen Green Card Checklist
- Spouse of U.S. Citizen Green Card Checklist (IR1 / CR1)
- Sibling of U.S. Citizen Green Card Checklist (F-4)
- Parents of U.S. Citizen Green Card Checklist (IR5)
- Spouse of Green Card Holders Checklist (F2A)
- Children of Green Card Holders Checklist (F2A / F2B)
- Widow(er) of U.S. Citizen Green Card Checklist (EB4)