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Permanent Immigration

  • U.S. citizens and lawful permanent residents (LPRs) may petition for certain foreign relatives to live and work in the U.S. permanently.
  • This process generally begins with the U.S. citizen or LPR filing an I-130 petition package (which generally includes the I-130 Petition for Alien Relative and other forms and supporting documentation) for the foreign family member. Once that petition has been approved and a visa is available, the foreign relative files a visa application package. Depending on where the foreign relative is (inside or outside the U.S.), that will generally include an I-485 Application to Adjust Status or DS-260 Immigrant Visa Application (to adjust status or to complete consular processing, respectively) and others forms and supporting documentation. Typically, an interview appointment will happen, after which the foreign relative will find out if his or her application will be approved or denied.
  • There are several categories of family members, and even people who fit into a category will still have to meet other requirements.

STEP 1

Many things, including how soon the foreign relative may apply to Adjust Status or complete Consular Processing, are generally determined by how the foreign national is related to the U.S. citizen or lawful permanent resident (LPR). Theoretically, the higher the “preference level”, the sooner the foreign relative should be able to immigrate.

  • If the foreign relative fits into the “immediate relative” category (see below) in relation to a U.S. citizen, the family member can immediately petition to adjust status or complete consular processing once the I-130 Petition is approved (because there are no annual quotas or caps on the number of immigrant visas for immediate relatives of U.S. citizens).
  • If the foreign relative fits into one of the preference categories (also below), approval of the I-130 Petition will hold his or her “place in line” on the long list of people who want immigrant visas, and the relative will only be able to petition to adjust status or complete consular processing once an immigrant visa becomes available.

Categories of family members:

  • Immediate Relative:
    • U.S. citizen’s spouse
    • U.S. citizen’s unmarried son/daughter who is under 21 years old
    • U.S. citizen’s parent (if the U.S. citizen is at least 21 years old)
  • Family 1st Preference:
    • U.S. citizen’s unmarried son/daughter who is 21 years old or older
  • Family 2nd Preference:
    • Lawful permanent resident’s spouse
    • Lawful permanent resident’s unmarried son/daughter who is under 21 years old
    • Lawful permanent resident’s unmarried son/daughter who is 21 years old or older
  • Family 3rd Preference:
    • U.S. citizen’s married son/daughter (any age)
  • Family 4th Preference:
    • U.S. citizen’s sibling (if the U.S. citizen is at least 21 years old)
    • U.S. citizen’s sibling’s spouse (if the U.S. citizen is at least 21 years old)
    • U.S. citizen’s sibling’s child (if the U.S. citizen is at least 21 years old)

STEP 2

The U.S. citizen or lawful permanent resident (also known as the Petitioner) will usually need to file a Form I-130 Petition for Alien Relative on behalf of the foreign relative (also known as the Beneficiary). All directions should be followed very carefully, and Petitioners and Beneficiaries should always make and keep copies of everything they send the government.

An I-130 petition package must contain many important items, generally including:

  • Form I-130 Petition for Alien Relative
  • Photocopies of supporting documents which may include:
    • Birth Certificates of Petitioner and Beneficiary
    • Marriage licenses and divorce decrees
    • Adoption decrees
    • Passport biographic data pages
    • Passport-style photographs taken within past 30 days
    • Evidence of bona fide marriage (if Petitioner and Beneficiary are married) which might include:
      • Photographs of Petitioner and Beneficiary throughout their relationship
      • Invitations, photographs, and congratulatory letters from friends and family relating to their wedding
      • Lease agreements and/or mortgage documents showing their joint residence
      • Sale agreements showing their joint ownership of property
      • Bank account statements showing joint control of funds
      • Automobile insurance documents showing joint coverage
    • And other items
  • Form G-325 Biographic Data Sheet (depending on the situation, a G-325A, G-325B, &/or G-325C may be required)
  • Payment of appropriate processing fees, generally one for the visa application and one for the Affidavit of Support (which comes later)
  • Filing the I-130 petition package (and all required documentation) sets the Beneficiary’s “priority date” which is how to determine where his or her "place in line” in the backlog of all people waiting for family-based immigrant visas.
    • The priority date generally relates back to the date on which the I-130 petition was properly filed with USCIS; not the date on which the petition was approved.
    • Beneficiaries in the Immediate Relative category don’t have to worry about priority dates because there is no numerical limit on this type of visa, which means there is no backlog of visa availability, which means that upon approval of Beneficiary’s petition, he or she will not have to wait until an immigrant visa is available in order to file the application petition because they are always available for that category.
    • Beneficiaries in the other Family Preference categories will have to wait until a visa is available in their category, regardless of where they reside.
  • If USCIS needs additional information, they will mail a letter called an RFE (Request for Evidence) in which they state what they need. This request is not a rare occurrence. As with sending anything to the U.S. government, directions should be followed very carefully, and copies should be made of everything to be sent.
  • Petitioner and Beneficiary will be notified of USCIS's decision in writing.
    • If the petition is approved, Beneficiary must wait until a visa is currently available in his or her category. Availability of the visa means Beneficiary may take one of the final steps in the process of becoming a permanent resident of the United States.
    • If the petition is denied, the notice will include the reasons for denial and inform of any rights to appeal the decision, including time frame for filing the appeal. Once appeal petitions and fees are processed, the appeal will be sent to the Board of Immigration Appeals.
  • Approved petitions are sent by USCIS to the National Visa Center (NVC) who holds them during the wait for a visa to become available for the Beneficiary. A Beneficiary cannot actually apply for a visa until one is currently available for him or her. Wait times vary greatly; although it is possible a Beneficiary will not have to wait long, it is also possible the wait will be several years. Wait times can be checked here: http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

STEP 3

There are two ways that foreign relatives who are beneficiaries of approved petitions can take the next step for lawful permanent residency. The options available to a beneficiary depend upon where s/he wants to (or can) file the visa application. There are requirements, advantages, and disadvantages to both:

  • If a beneficiary is already residing in the U.S., s/he can apply from inside the U.S. to Adjust Status (or apply for an Immigrant Visa through Consular Processing - see below - which would happen in his/her home country). Regarding Adjustment of Status in general:
    • Advantages:
      • The beneficiary and the petitioner can be together while the application is pending
      • Denial of the application is appealable
    • Disadvantages:
      • Completing the Adjustment process sometimes takes longer, and the government's fees for it are higher, than going through Consular Processing
      • It is more difficult to switch from Adjustment of Status to Consular Processing if the beneficiary changes his or her mind later
  • If the beneficiary is residing abroad, s/he will only be able to apply for an Immigrant Visa through Consular Processing (beneficiaries residing in the U.S. legally, though, also have the option to go through Consular Processing). In general:
    • Advantages:
      • It can take a shorter time to go through this process
      • It is easier to switch from Consular Processing to Adjustment of Status if a beneficiary changes his/her mind later
    • Disadvantages:
      • The beneficiary and petitioner are generally apart while the application is pending (unless the beneficiary is legally residing in the U.S., in which case s/he can remain there and just travel to the U.S. consulate in the home country for the interview and medical examination)
      • Denial of the application is most often NOT appealable

When it is close to the time that Beneficiary’s case will become current, NVC begins pre-processing the case. If Beneficiary is eligible to adjust status, NVC will ask him or her to confirm this choice and will then send the case to the appropriate USCIS office so that the I-485 adjustment application can be processed. Beneficiary will need to apply submit the I-485 application package at the appropriate time.

An I-485 application package must contain many important items, generally including:

  • Form I-485 Application to Register Permanent Residency or Adjust Status
  • Payment of appropriate processing fees, generally one for the visa application and one for the Affidavit of Support
  • Copies of supporting documents: Generally, photocopies of civil documents may be submitted in the application, and then Beneficiary will need to bring photocopies AND the originals to the application interview. The documents may include:
    • Birth Certificates of Petitioner, Beneficiary, and all unmarried children under the age of 21
    • Marriage and divorce certificates
    • Adoption decrees
    • Passport biographic data pages
    • Passport-style photographs taken within past 30 days
    • Police certificates
    • Court & prison records
    • And more
  • Form I-864 Affidavit of Support which will include financial statements and evidence.  By submitting the I-864, Petitioner is legally accepting financial responsibility for Beneficiary. If Petitioner does not meet the financial qualifications alone, she or he will have to find an additional person who can help meet the financial qualifications and who will also be legally accepting financial responsibility for Beneficiary. Financial evidence may include IRS Tax Returns, pay stubs, proof of retirement benefits, business licenses, SSA Earnings Statements, etc.
  • Form I-765 Application for Employment Authorization (optional; this is also known as a work permit and is for if Beneficiary wants to be able to work while the I-485 Application is pending)
  • Form G-325A Biographic Data Sheet (for applicants between the ages of 14 and 79)
  • Copy of I-797 Approval Notice sent by USCIS or original I-130 Petition
  • Copy of Beneficiary’s Form I-94 Arrival Departure Record (showing evidence of inspection, admission or parole into the United States)
  • Form I-693 Results of Medical Examination performed by a USCIS designated physician not more than 1 year before submission of the I-485 Application, and vaccination assessment.
  • Any other documents required by the specific U.S. Embassy or Consulate at which Beneficiary will be interviewed

If Beneficiary decides to complete consular processing, or if that is his/her only option, the National Visa Center (NVC) begins pre-processing the case. Generally, when it is close to the time that Beneficiary’s case will become current, NVC will notify Beneficiary and ask him or her to take the next pre-processing steps. After the necessary forms and documents have been collected, and when the priority date is current, the NVC will send the case to the appropriate U.S. Embassy or Consulate for them to complete processing, and they will schedule Beneficiary’s interview there.

NVC will send processing fee bills to the petitioner, and unless Petitioner used an attorney to file the previous petition, NVC will also request Beneficiary submit a Form DS-261 in order to choose an agent – someone to receive communication from NVC about the case. This may be Beneficiary, Petitioner, Petitioner’s attorney, or anyone else, but it is extremely important that this choice is made wisely. 

A DS-260 application package must contain many important items, generally including:

  • DS-260 Online Immigrant Visa and Alien Registration Application
  • Payment of appropriate processing fees, generally one for the visa application and one for the Affidavit of Support
  • I-864 Affidavit of Support which will include financial information.  By submitting the I-864, Petitioner is legally accepting financial responsibility for Beneficiary. If Petitioner does not meet the financial qualifications alone, she or he will have to find an additional person who can help meet the financial qualifications and who will also be legally accepting financial responsibility for Beneficiary.
  • Copies of supporting documents: Generally, photocopies of civil documents may be submitted in the application, and then Beneficiary will need to bring photocopies AND the originals to the application interview. The documents may include:
    • Birth Certificates of Petitioner, Beneficiary, and all unmarried children under the age of 21
    • Marriage and divorce certificates
    • Adoption decrees
    • Passport biographic data pages
    • Passport-style photographs taken within past 30 days
    • Police certificates
    • Court & prison records
    • And more
  • Copies of financial statements and evidence about Petitioner (and joint sponsor, if necessary) may include IRS Tax Returns, pay stubs, proof of retirement benefits, business licenses, SSA Earnings Statements, etc.
  • Form G-325A, Biographic Data Sheet (for applicants between the ages of 14 and 79)
  • Copy of I-797 Approval Notice sent by USCIS or original I-130 or I-140 Petition
  • Any other documents required by the specific U.S. Embassy or Consulate at which Beneficiary will be interviewed

After submitting the application, Beneficiary should notify NVC of any changes to his/her physical address or personal situation (such as divorce from Petitioner). Personal situation changes may affect Beneficiary’s ability to obtain an immigrant visa.

STEP 4

Not all Beneficiaries applying via I-485 will have to attend an interview appointment, but all will have to make an appointment at the appropriate Application Support Center to submit for biometrics collection, meaning having a picture and fingerprints taken and giving a signature sample.

On the other hand, almost all Beneficiaries applying via DS-260 will have to be interviewed; they will submit for biometrics collection at the time of the interview appointment.

  • The appropriate government agency will schedule interview appointments at the appropriate USCIS office (for I-485 applicants) or U.S. Embassy or Consulate (for DS-260 applications) for Petitioners and Beneficiaries/applicants to answer questions under oath or affirmation.
  • Interviews MUST be attended at the date, time, and location indicated. Applicants who do not contact the appropriate office within one year of receiving an interview appointment letter may have their cases terminated, their visa petitions cancelled, and forfeit any fees paid.
  • Beneficiary/applicants should immediately and carefully review all information they receive, and seek out any additional office-specific interview &/or document instructions so that they have sufficient time prior to the appointment to do and/or gather anything required for the interview appointment.
  • Applicants will need to schedule, undergo, and obtain the results of a medical examination with an authorized physician prior to the interview appointment. Physicians will need to see vaccination records of DS-260 applicants at the time of the examination. Examination results should not be opened, and must be brought to the interview appointment unless the physician sends them directly to the appropriate government office.
  • Beneficiary/applicants will generally have to gather these items for the interview appointment:
    • Appointment Letter received from USCIS / NVC
    • Beneficiary’s unexpired passport that is valid for six months beyond the intended date of entry into the U.S.
    • Passport-style photographs of Beneficiary (generally 2)
    • Originals (and additional copies of) of forms and documents submitted with Beneficiary’s application, and any remaining required documents; this may include birth certificates, passports, official travel documents, Form I-94s (for I-485 applicants), etc. Originals will generally be returned at some point following the interview.
    • Medical Exam Results (if applicable)
    • Certified Translations of non-English documents not already sent to USCIS / NVC
    • Visa Fees not already collected by USCIS / NVC
  • Beneficiary/applicants should (of course) remember to bring all the documents to the interview that they gathered.

STEP 5

After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, a final decision will be made.

  • Adjustment of Status applicants will receive written notification of the final decision by mail.
    • If the I-485 application is approved, Beneficiary may continue to reside in the U.S., and verification of Conditional Permanent Residence status (or of Permanent Residence status, also known as a Green Card) will typically be sent within 45 days of the Adjustment approval.
    • If the application is denied, the notice will include the reasons for denial and inform of any rights to appeal the decision including time frame for filing the appeal. The appeal petition is extremely important and complicated; once it and the fees are processed, the appeal will be sent to the Board of Immigration Appeals.
  • Consular Processing applicants will be informed of the final decision by the consular officer immediately following the interview.
    • If the DS-260 application is approved, the consular officer will give Beneficiary a “Visa Packet” (that must not be opened until CBP asks for it upon Beneficiary’s arrival in the U.S.) and will tell Beneficiary how he or she will get back original items submitted. Once Beneficiary travels to the U.S. and is admitted as a Permanent Resident, he or she will typically be sent verification of Conditional Permanent Residence status (or Permanent Residence status, also known as a Green Card) within 45 days.
    • If the application is denied, Beneficiary will be told the reasons for ineligibility. Beneficiary may be able to appeal this decision, but most likely not.
  • If verification of Permanent Residence status is not received in a reasonable time frame, Beneficiaries can call the USCIS National Customer Service Center at 1-800-375-5283 or visit a local office by making an InfoPass appointment.

STEP 6

In some cases, obtaining Permanent Resident status (also known as a Green Card) is not the last step a person must take to remain in the U.S. permanently. Current green cards are valid for 10 years (or 2 years in the case of a conditional resident), and they must be renewed before they expire. A green card is valid for readmission to the United States after a trip abroad if the holder does not leave for longer than 1 year. If the trip will last longer than 1 year, a reentry permit is needed. The following are a few examples of actions that must be taken in order to ensure lawful status:

  • Conditional Permanent Residents must file a petition package to remove conditions
    • If permanent residence was obtained by marriage to a U.S., it was most likely granted conditionally (the card was probably called a Conditional Permanent Resident card) and the legal status is valid for 2 years. If this is the case, Beneficiary MUST petition to remove the conditions within 90 days of when the card will expire; otherwise, he or she may be subject to deportation and removal. Once the Conditions have been removed, the Beneficiary will receive a new Permanent Resident card that is valid for 10 years.
    • The petition package will generally consist of:
      • Form I-751 (marriage) or Form I-829 (investment) to remove conditions
      • Supporting Documentation
      • Fee Payment
    • Supporting documentation, which will include many of the same documents that were previously submitted for other petitions and applications, such as:
      • Copy of front and back of Beneficiary’s Conditional Green Card
      • Passport-style photos of Beneficiary & anyone applying with him/her
      • Fingerprint cards
      • Evidence showing that the marriage is bona fide and was entered into in good faith, OR that the
    • Permanent residents must notify USCIS every time they move
    • Permanent residents must not abandon permanent residence status
      • This is generally done by leaving the U.S. to live abroad: If the permanent resident must leave the U.S. for an extended period of time (more than a few months at a time) and does not intend to abandon the U.S., he or she should apply for a Travel Document (re-entry permit) prior to leaving the U.S., continue to file required tax returns in the U.S., register with the Selective Service (currently just males between 18-26 years old),
    • Permanent residents, and every other person in the U.S., must follow all Federal, State, and local laws wherever they reside.