Immigrating to the United States can be a time consuming
process
requiring the successful completion of numerous steps.
The last step
following approval of the immigrant visa petition
requires the alien to
file an application for Permanent Resident ("green
card") status. A
lawful permanent resident is a foreign national who
has been granted the
privilege of permanently living and working in the
United States.
Individuals who maintain Permanent Residency for
five years (three years
for the spouses of U.S. citizens) may be eligible
to apply for Naturalization (U.S. Citizenship)
If you want to become a lawful permanent resident
based on the fact that
you have a relative who is a citizen of the United
States or a relative
who is a lawful permanent resident, you must go through
a multi-step
process. An application for an immigrant visa/permanent
resident
status can be filed either at a U.S. Consulate (normally
located in the
alien's home country) or with the CIS office having
jurisdiction over
the alien's residence in the United States.
The first process is called "Consular Processing" while
the latter step is called "Adjustment of Status".
Most qualified applicants choose to file an I-485
adjustment application
in the U.S. with the CIS District Office or Service
Center.
LIFE Act : Adjustment of Status, Revived Section
245(i)
Adjustment of status refers to the procedure for
becoming a lawful
permanent resident without having to leave the United States.
Spouse or child accompanying principal alien. The
accompanying spouse or
child of an applicant for adjustment of status may also apply for
adjustment of status. A spouse or child acquired by the principal alien
prior to the approval of the principal's adjustment of status
application may be accorded the derivative priority date and preference
category of the principal alien. The spouse or child may use the
priority date and category when it becomes current. The priority date is
not considered immediately available for these family members.
Immigrant visas are granted only to a spouse and
children who accompany or
follow to join the principal beneficiary upon showing proof of immediate
relation to principal and admissibility. Section 203(d) provides that
spouses and children of preference immigrants are entitled to the same
status, and the same order of consideration, if accompanying or
following to join the principal. Whether or not named in the petition,
the child of a family-sponsored first, second, third, or fourth
preference immigrant or the spouse of a family-sponsored third or fourth
preference immigrant, if not otherwise entitled to an immigrant status
and the immediate issuance of a visa, is entitled to derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.
9 FAM 42.53 N6.3 Spouse/Child Acquired After Principal’s
Admission
(TL:VISA-61; 6-5-92) Spouse/Child acquired after the principal
alien’s admission to the United States, except a child of a marriage
existing at the time of the principal alien’s admission into the United
States, is not accorded derivative status, and thus is not entitled to
the priority date of the principal alien. The principal alien must file
a second preference petition for such spouse or child.
The INA, however, does not generally accord derivative
status for family
members of immediate relatives as it does for preference applicants. A
U.S. citizen must file separate immediate relative petitions for the
spouse, each child, and each parent.
In order to take advantage of the 245(i) grand
fathering, individuals
must have an immigrant visa petition or a labor certification
application on file with the Immigration Service or Department of Labor
by April 30, 2001. The "grandfather"clause of Section 245(i) is extended
from January 14, 1998 until April 30, 2001. As a result, any beneficiary
of an immigrant visa petition or labor certification application filed
BEFORE April 30, 2001, (including a spouse or child of the alien
beneficiary if eligible to receive a visa under section 203(d) of the
Act) will be able to apply for adjustment of status under Section 245(i)
if necessary. If the qualifying visa petition or application for labor
certification was filed AFTER January 14, 1998, the alien must have been
physically present in the United States on December 21, 2000. This
requirement does NOT apply with respect to a spouse or child
accompanying or following to join a principal alien.
FAMILY BASED PETITIONS
Family reunification is the leading source of immigration
to this country. The United States Congress reflects
this family reunification priority in the visa allocation
system and in the various forms of relief available
to certain aliens based on their family relationship
to citizens or to lawful permanent residents of the
United States. You can qualify for permanent residency
if you have a family member in the United States
who is either a citizen or a holder of a green card.
Like the Employment-based categories, both Preference
Relatives and Accompanying relatives (derivative
status) are affected by quota restrictions. (seeQuota
Bulletien) You will need to determine how the quota
backlogs will impact on your case prior to filing
with the government."Immediate Relatives" ARE
NOT SUBJECT TO QUOTA BACKLOGS. (A spouse of a U.S.
citizen, an unmarried child (under the age of 21)
of a U.S. Citizen parent, or a parent of a U.S. citizen
child who is over the age of 21 can immigrate immediately
if eligible).
PRIORITY DATE OF RELATIVE PETITIONS: (Quota Visa Bulletin)
The priority date is the date the preference petition
(I-130) was filed
– 22 C.F.R. Sec 42.53(a) which under CIS regulations
requires receipt of
the filing fee and a signed petition. 8 C.F.R. Sec
204.1(d).
Family-sponsored preference visas will issued to
eligible immigrants
in the order in which a petition in behalf of each
has been filed. The
priority date of a preference visa applicant under
INA 203(a) or (b)
shall be the filing date of the approved petition
that accorded
preference status. A spouse or child of a principal
alien acquired prior
to the principal alien's admission shall be entitled
to the priority
date of the principal alien, whether or not named
in the immigrant visa
application of the principal alien. A child born
of a marriage which
existed at the time of a principal alien's admission
to the United
States is considered to have been acquired prior
to the principal
alien's admission.
FAMILY PETITIONS
Permanent residence based on family
relationships falls into two categories. The first
is immediate relatives, for which there is no quota
or waiting list. Immediate relatives include unmarried
children under the age of 21, spouses, and parents
of United States citizens.
A child may include a legitimate
child; or a step-child, as long as the relationship
was created before the child's 18th birthday; or
a child legitimated under the law of the child's
residence or domicile, or under the law of the
father's residence or domicile, as long as the
legitimization took place before the child's 18th
birthday; or an illegitimate child where the benefit
is sought by virtue of the relationship with the
natural mother, or the natural father if the father
has or had a bona-fide parent child relationship
with the person; or a child adopted while under
the age of 16 years if the child has been in the
legal custody of, and has resided with, the adopting
parent for at least 2 years; or a child who is
an orphan because of the death, disappearance,
abandonment, or desertion by both parents, or where
the sole surviving parent is incapable of caring
for the child, and the child is under the age of
16.
To file for a spouse, the marriage
must be valid under the laws of the country where
it was performed and must not be against public
policy. A fraudulent or sham marriage that is entered
for the main purpose of circumventing the immigration
laws does not enable an alien's spouse to get immigration
benefits. However, where the marriage was valid
at its inception, a petition can be approved even
if the parties are not residing together at the
time of the interview.
To file for a parent, the US citizen
petitioner must be at least 21 years of age.
Other types of family petitions
fall under the preference system. There is a limit
on persons who can receive permanent residence
each year in these categories and, so, the waiting
list is often many years long.
The first preference is for unmarried
sons and daughters of US citizens, over the age
of 21. The second preference is for the spouses
and unmarried sons and daughters (any age) of lawful
permanent residents of the United States. The third
preference is for the married sons and daughters
of US citizens (any age). The fourth preference
is for brothers and sisters of US citizens. The
US citizen must be at least 21 years of age to
file for a brother or sister.
A petition for permanent residence
is filed on immigration form I-130. The US citizen
or permanent resident who files the petition is
known as the petitioner, while the alien relative
who will be getting permanent residence is known
as the beneficiary. If the beneficiary is outside
the United States, he or she will apply for a permanent
visa at a US consul in their home country, or in
any other country where they are residing. In this
situation, the petitioner must sign the form and
send it, with proof of the relationship of the
parties and the proper filing fee, to the immigration
service office in the United States that handles
these types of cases. The form I-130 lists the
documents that must be submitted with the petition,
as well as the address where the petition must
be sent.
The immigration service center approves
the petition and sends it to the National Visa
Center in New Hampshire. That office will forward
the next set of papers to the beneficiary. The
beneficiary must then complete these forms and
forward them to the US consul that will process
the case. In addition, the beneficiary must obtain
the needed documents needed to be presented at
the final interview. When the consulate has finished
its background checks, it will send an appointment
letter to the beneficiary to appear at an interview,
and to bring the requested documents.
If everything is in order, the beneficiary
will receive his or her immigrant visa, as will
any accompanying family members. They must enter
the United States within six months at which time
their passports will be stamped as permanent residents.
They will receive work permission, and their permanent
resident (green) cards will be mailed to them.
If the alien beneficiary is in the
United States, he or she may qualify for adjustment
of status with the Immigration Service, without
the need of traveling to a US consulate outside
the United States. Most persons can qualify for
adjustment of status if they filed a petition or
application with the Immigration service or US
Department of Labor on or before January 14, 1998.
(This will be discussed in detail later in the
manual). However, often, if they are not legally
in the United States they will have to pay a penalty
fee to avoid having to return to their home country.
Now the penalty fee is $1000.00, aside from the
regular filing fees for the application, visa petition,
and work permit if needed. Also, a fingerprinting
fee is required.
The beneficiary will submit the
application for adjustment of status with the petition,
which is signed by the petitioner. The beneficiary
must also include the necessary documentation,
including proof of the relationship of the parties,
a medical exam, photos, proof of support, and the
required filing fee. In addition, the beneficiary
may request a work permit while waiting for a final
appointment date. The procedures for each immigration
office are different; therefore it is important
that you check with the individual office to learn
their specific method of processing these cases.
(A full list of all immigration & consular offices
is included on our web site.) When the preliminary
processing of the case is finished, the immigration
service will schedule the beneficiary for an interview.
During the interview, the petition and application
for permanent residence will be reviewed and the
parties questioned. If this is a petition based
on a marriage, there is a good likelihood that
the petitioner and beneficiary will be separated
and asked questions outside the presence of each
other in order for the immigration examiner to
confirm the truth of the marriage. In these cases,
it is very important that you take with you to
the interview documentary proof that you reside
together such as tax returns, leases, ownership
of property, insurance policies, etc. Naturally,
if a child has been born of the marriage, you should
take the child's birth certificate with you. Also,
remember that the immigration service wants to
see original documents.
If everything is in order, your
application will be granted, and proof of your
permanent residence will be stamped in your passport.
The resident (green) card will be mailed to you
within 3-6 months. However, since you are a permanent
resident from that date, you can travel outside
the United States and you are permitted to be lawfully
hired while waiting for your card to come.
If you are not approved for permanent
residence because of the commission of a crime
or because of some other ground of inadmissibility,
you might still be able to get a waiver. If the
petition is denied, and you wish to appeal, you
would file your appeal with the Board of Immigration
Appeals on immigration form I-290 B. If your application
for adjustment is denied, you could renew your
application at a hearing before an immigration
judge.
CHILD PROTECTION ACT
On August 6, 2002 President Bush signed the Child
Status Protection Act.
This new law addresses the problem of minor children
losing their
eligibility for certain immigration benefits as a
result of BCIS
processing delays. (when children of U.S. citizens
turn 21 years of age,
they "age-out" of their immediate relative
status to the status of
family-first preference: the Fl category.) Public
Law (P.L. 107-208), 08/06/02.
The new act provides that the determination of whether
an unmarried
alien son or daughter of a US citizen is considered
an "immediate
relative child" (under 21 years of age) will
be based on the age of the
alien at the time the Petition for Alien Relative
(Form I-130) is filed
on his or her behalf, rather than on the date the
petition is
adjudicated, as is the case under current law.
The new law also provides similar determinations
in the case of
permanent resident parents who subsequently naturalize
after having
filed petitions for their sons or daughters and citizen
parents who file
petitions for married sons or daughters where such
sons or daughters
later divorce. In the first situation, the age determination
will be
made at the time of the parents' naturalization.
In the latter, the
alien beneficiary's age will be determined as of
the date of his or her
divorce.
For the children of legal permanent residents, or
those who are
accompanying or following to join on a petition for
an immigrant visa,
their eligibility will be determined based on the
date that a visa
becomes available to them, but only if they seek
to acquire permanent
resident status within one year of such availability.
In addition, the new law provides age-out protection
to alien children
who accompany or follow to join parents who have
filed for asylum or
refugee status.
Finally, the new law provides that the family-sponsored
petition of an
unmarried alien son or daughter whose permanent resident
parent
subsequently becomes a naturalized US citizen will
be converted to a
petition for an unmarried son or daughter of a US
citizen, unless the
son or daughter elects otherwise.
Because certain aliens are subject to quota restrictions,
the law
provides for an orderly waiting list, based on the
date that the first
official step was taken to immigrate the alien. For
family based
applicants, this is the date the BCIS first accepted
the immigrant
preference petition filed on the alien's behalf.
For employment based
applicants, this date is the earlier of the date
a labor certification
was filed on the alien's behalf, or the date an immigrant
preference
petition was filed, if no labor certification is
required. This date is
known as the alien's priority date. A priority date
is not "perfected"
until the immigrant preference petition is actually
approved. Once a
preference petition beneficiary receives a priority
date, he or she may
be able to retain it even if the preference classification
changes. For
example, employment based immigrants are entitled
to retain their EB
priority dates even if they change jobs or move switch
classifications.
Similarly, family based beneficiaries are allowed
to retain their
priority dates if they automatically convert from
one classification to
another though marriage, age, or the naturalization
of the petitioner.
Visa Bulletin: This bulletin summarizes the availability
of immigrant numbers. Section 201 of the Immigration
and Nationality Act (INA) sets an annual minimum
family-sponsored preference limit of 226,000. The
worldwide level for annual employment-based preference
immigrants is at least 140,000. .
"Immediate Relatives" ARE NOT SUBJECT
TO THE NUMERICAL LIMITATIONS (quota backlogs) OF
INA 201. So, a spouse of a U.S. citizen, an unmarried
child (under the age of 21) of a U.S. Citizen parent,
or a parent of a U.S. citizen child who is over the
age of 21 can immigrate immediately if eligible.
The INA, however, does not generally accord derivative
status for family members of immediate relatives
as it does for preference applicants. A U.S. citizen
must file separate immediate relative petitions for
the spouse, each child, and each parent.
FAMILY-SPONSORED PREFERENCES: Section 203 of the
INA prescribes preference classes for allotment of
immigrant visas as follows:
First: Unmarried Sons and Daughters of Citizens:
23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons
and Daughters of Permanent Residents: 114,200, plus
the number (if any) by which the worldwide family
preference level exceeds 226,000, and any unused
first preference numbers:
A. Spouses and Children: 77% of the overall second
preference limitation, of which 75% are exempt from
the per-country limit;
B. Unmarried Sons and Daughters (21 years of age
or older): 23% of the overall second preference limitation.
Third: Married Sons and Daughters of Citizens:
23,400, plus any numbers not required by first and
second preferences.
Fourth: Brothers and Sisters of Adult Citizens:
65,000, plus any numbers not required by first three
preferences.
Derivative status for family members: Dependents
may enter upon showing proof of immediate relation
to principal and admissibility. Immigrant visas are
given only to spouse and children who accompany or
follow to join the principal beneficiary. Section
203(d) provides that spouses and children of preference
immigrants are entitled to the same status, and the
same order of consideration, if accompanying or following
to join the principal. Whether or not named in the
petition, the child of a family-sponsored first,
second, third, or fourth preference immigrant or
the spouse of a family-sponsored third or fourth
preference immigrant, if not otherwise entitled to
an immigrant status and the immediate issuance of
a visa, is entitled to derivative status corresponding
to the classification and priority date of the beneficiary
of the petition.
In the case of a petition according an alien status
under INA 203(a)(1) or (3) or status as an unmarried
son or daughter under INA 203(a)(2), the petitioner
must be a "parent" as defined in INA 101(b)(2)
and 22 CFR 40.1. In the case of a petition to accord
an alien status under INA 203(a)(4) filed on or after
January 1, 1977, the petitioner must be at least
twenty-one years of age.
