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IMMIGRATION LAW FOR RESTAURANTS, WINERIES, AND MICROBREWERIES
PERMANENT RESIDENCY (GREEN CARD)
LEARN MORE ABOUT
PERMANENT RESIDENCY (GREEN CARD) INFORMATION
A permanent resident (green card holder) is someone who is allowed to live and work in the U.S. on a permanent basis. Certain aliens in the U.S. on valid visas can meet statutory immigration requirements to become lawful permanent residents by adjusting their non-immigrant status. The most common ways to obtain permanent residency in the U.S include: petition from an employer,
marriage to a U.S citizen
, or family sponsorship by a spouse, sibling or parent who is a U.S citizen or permanent resident. This process can take up to two years, so applicants are reminded that during this process, work and travel may be restricted or otherwise refused.
Learn More About Permanent Residency:
Eligibility For Permanent Resident Status
Can I become a permanent resident?
Generally, a non-immigrant is eligible to adjust his status and become a permanent resident when he meets one of the following conditions:
An immediate family member petitions for him (brother, sister, spouse, or parent);
An employer petitions for him;
He is self-petitioning as an asylee;
He is self-petitioning as a refugee; or
He receives an opportunity to do so under the diversity lottery program.
In addition, eligibility to petition under one of these categories must continue to be valid throughout the application process. For example, the company petitioning for a green card on behalf of an alien employee must continue to employ the alien during the entire application process (or continue to want to employ the alien if he is not yet eligible to work legally in the U.S.).
Caps On Petitions For Permanent Residency
Are there a maximum number of people who can become permanent residents each year?
Once the alien meets one of the basic requirements, he must then determine whether or not his petition is readily available for processing. This depends on the category under which the application is filed.
The biggest misconception with submitting a petition with the USCIS is that processing begins immediately upon submission. In reality, even once the petition has been accepted for review, processing may not begin until months or even years after the submission date. This is due to caps that are placed on certain categories. Once the cap has been reached within that year’s review period, review of all pending application is put on hold until the following year’s review period opens. At that point, application review resumes where the previous year left off with applications that have the earliest priority date. The priority date is the date that the USCIS receives the application; this is also the dated provided on the application receipt. Thus, priority dates determine how soon your application will be reviewed. To determine when an application will be processed, an applicant can refer to the monthly Visa Bulletin on the USCIS
The priority date changes regularly, and accordingly, the USCIS posts a monthly bulletin. The change is affected by the number of pending applications, how quickly the USCIS processes applications and how many of the processed applications are granted visas.
The Visa Bulletin organizes the cap listings by visa category and notes any countries that, by exception, have their own caps. For example, a spouse or child of a U.S. permanent resident would have applied for an F-2A visa. This particular visa category has a separate cap for mainland China, India, Mexico and the Philippines. Applicants from all other countries fall under the general cap for the F-2A visa category.
The category subject to a cap is divided into preference categories. Each preference category has its own cap. The preference categories are important because it can pull any unused numbers from the preference category immediately above it.
The four preference categories for family-based visas are:
Family first preference (F-1): Unmarried sons and daughters under 21 years old of U.S. citizens (23,400 admissions per year)
Family Second Preference (F-2 A&B): Spouses and unmarried sons and daughters under 21 years old of U.S. permanent residents (114,200 admissions per year)
Family Third Preference (F-3): Married sons and daughters (and children over 21 years old), of U.S. Citizens (23,400 admissions per year)
Family Fourth Preference (F-4): Brothers and sisters of U.S. Citizens (65,000 admissions per year)
The three most common preference categories for employment visas are:
First employment-based preference : Priority Workers: managers and executives subject to international transfer to the United States, outstanding professors and researches with employers who have established research departments or aliens of “extraordinary ability” in science, art, education, business and athletics. (40,000 admissions per year)
Second employment-based preference: aliens of “exceptional ability” in the science, arts or business and advanced degree professionals. (40,000 admissions per year)
Third employment-based preference: aliens who did not qualify under the second preference who have a bachelor’s degree, skilled workers (2+ years of experience required for job); and unskilled workers (no specific skill set required, although must still demonstrate the need for the employee). (40,000 admissions per year)
Continuing the previous example, the F-2A category has a cap of 114,200 approved applications per year. F-2A applications can also pull from unused F-1 numbers. For example, if, at the end of the review period, the number of immigrant visas issued in the F-1 category fell short of its cap by 100, then the F-2A category would allow for 100 more approved applications that year.
Family-Based Petition For Permanent Residency
I have a family member who is going to petition for my permanent residency.
Family petitions have four different categories that determine if an alien is able to apply for a green card right away, or if there is a cap on the number of aliens granted permanent residency under that category for that year.
There is only one class of immigrants whose priority date is always current (there is no annual cap on how many visas are permitted in this category): the spouse of a U.S citizen. An alien spouse of a U.S. citizen may have the U.S. citizen spouse petition for his permanent resident status as well as adjust status from an immigrant to a permanent resident at the same time. Even though this process notes that a visa is “readily available”, it still takes 6 – 9 months to go through the entire application process.
A fiancé of a U.S citizen, on the other hand, is subject to a cap. He would not have permanent residency readily available to him if the cap had already been reached when his petition was filed. If this is the case, he may apply for a K visa in order to immigrate to the U.S. while waiting for his petition for permanent residency to be processed. Once the alien fiancé marries the U.S. citizen, he can then adjust his status immediately to permanent resident. The K visa can also be used for alien spouses of U.S citizens living abroad in order to obtain a visa stamp to enter the U.S. while waiting approval of permanent residency.
How do you apply for permanent resident status?
Application for permanent residency begins with filing the initial petition based on the current non-immigrant visa category. For those whose visas are not readily available, submitting the petition is quite critical because the date the petition is submitted acts as the applicant’s priority date (holds a place “in line” for when a visa becomes available). Once the petition is approved, the alien must wait for the immigrant visa to become available before entering the U.S. (or being able to adjust status from non-immigrant to immigrant if the alien is already residing in the U.S.). The alien must go through an interview by a USCIS official before permanent residency is approved or denied.
Filing The Initial Petition
Petitions under employment-based visas
For employment-based petitions of the three preference categories, the U.S. employer must file a petition for the alien worker with the USCIS in order to get the process started. Accompanying this petition should be supporting documentation that demonstrates the employer’s ability to pay for the worker, documentation that establishes the worker’s qualifications for the position in question and documentation to support the filing under the specific employment category. Additional documents may also be submitted to demonstrate the employer’s background and qualifications (Labor Conditions Application) and the need for an alien worker rather than a U.S. permanent resident or citizen.
There are two exceptions to having the U.S. employer file the petition:
Applicants qualifying under the first employment-based preference do not need a job offer and may petition for themselves (but still need to provide supporting documentation demonstrating their qualifications); and
Applicants who have the offer of an employment offer waived due to national interest can also self-petition.
Petitions under family-based visas
For a family-based visa petition, the U.S. citizen/permanent resident family member must file a petition for the alien relative. Accompanying this petition should be supporting documentation that establishes the status of the petitioner and the relationship between the petitioner and the alien relative. In addition, a biographic information form is required to be completed by the petitioner and all aliens included in the petition. Additional documents may also be submitted to further demonstrate the relationship (i.e. for marriage, to demonstrate the validity of the marriage, and that it is not just for purposes of obtaining a green card). Special documentation may be required of parents of children born out of wedlock. These documents are rather specific and require experienced insight on a case-by-case basis.
After submission of the petition:
Once the appropriate petitions are submitted, the immigration officer looks over the documents and determines the next step in the application process. Generally, the process is as follows:
When waiting for the application to be accepted, spouses and children of U.S citizens who live abroad can apply for a K-visa in the interim and travel to the U.S. to await the petition decision.
Petition Approval When Alien Is Living Abroad
My petition was approved and I live outside the U.S. What do I need to do?
When a petition is approved, the petitioner will be notified on an approval notice and the approval notice will be sent to the National Visa Center. If a visa is readily available for the petitioner and was filed with another application, the receipt will indicate whether the application to adjust status must be filed with the consulate abroad or in the U.S. If the visa is not readily available for the petitioner, the approved application will be sent to the National Visa Center and both the petitioner and his family member(s) (the beneficiary) will be notified when a visa becomes available.
When the immigrant visa is available and the beneficiary needs to adjust his status to permanent resident upon entry in the U.S., the next step is to obtain a visa stamp in order to travel to and be permitted into the U.S. A visa interview conducted by a consular official at the consulate nearest to the beneficiary is required at this point.
I have been given an interview appointment. What should I expect?
The interview process varies for each applicant based on his individual situation, the details provided in the application and the supporting documents. Some of the basics that most applicants experience during the consular interview include:
Fingerprint scanning upon entry into the consulate;
Payment of any outstanding fees;
Collection of any documents requested to be provided at the interview; and
Meeting with consular official to meet together with and/or separately from your family members.
Keep in mind that this process differs for everyone. The list above enumerates some of the most common things that most applicants experience during the interview process.
In certain cases when the applicant is unprepared or the documentation provided is not enough for the consular official to approve the petition, a denial is given at the end of the interview and the petitioner is required to take appropriate action in order to continue the application process or abandon the petition.
However, after most interviews, the consular officer will review the application, the supporting documentation and the applicant’s responses during the interview to determine eligibility. The officer may request more documented evidence from the applicant to determine eligibility for the visa. After the application is reviewed and security checks have been completed, the consular official will make a decision. Assuming that no issues arise requiring further administrative processing, this step can take up to 4 weeks to be completed. If the application is approved, the applicant will be asked to return to retrieve the visa, or the visa will be mailed to the applicant. While it used to be quite common, these days consular posts do not provide same-day visa issuance. Before making any inquiries about the status of a case, applicants must wait at least 90 days from the interview date or submission of supplemental documents, whichever is later.
The visa stamp contains very specific information specific to the holder of the passport to prevent fraud. The visa contains the following information:
The location of the consular post issuing the visa;
The number of the visa;
Date of issuance;
Date of expiration; and
Name of petitioner and type of petition.
Preparing To Enter The U.S.
I have a visa stamp and can travel to the U.S. How should I prepare for my trip?
Once the alien has received the visa stamp from the consulate, he must begin to make his travel arrangements. The alien must be mindful of any date restrictions placed on the visa. Some visas require the alien to travel to the U.S. within a specific time period (e.g., 6 months), while other visas do not permit the alien into the U.S. until a certain date has passed (e.g., 3 months before employment begins for some employment visas).
It is important to begin travel preparations in advance to ensure a hassle-free trip. Make sure to take all supporting documentation (all documents submitted to the USCIS and consulate throughout the application process) in addition to the passport and visa in the event that the alien is requested to verify his status. It is a good idea to make copies of all travel documents and supporting documents to give to your family. It may come in handy.
When the alien travels to the U.S. he must make sure to bring copies of all documents he had previously submitted to the USCIS, National Visa Center and the U.S. Consulate before, during and after the interview. In addition to this documentation, he must bring the following to ensure entry at the Port of Entry by the border official:
Passport with visa valid for 6 – 12 months;
Petition filing receipt
Now you can travel to the U.S and apply for adjustment of status to permanent residency.
Petition Approval When Alien Is Living In The U.S.
My petition was approved and I live in the U.S. What do I need to do?
When the petition is approved, the petitioner will be notified of the approval. In addition, it will notify the petitioner when a visa is readily available and the alien should file an application to adjust status if he hasn’t already done so.
Denial Of The Petition
My immigrant petition was denied. What can I do?
In the event that the petition is denied, the petitioner has a right to appeal. The relative must file a notice of appeal with the appropriate fee with the USCIS office that made the decision within 18 days of the date marked on the decision. Unless sufficient additional documentation is provided to overcome the denial, petitioner may want to seek the assistance of legal counsel, as the Board of Immigration Appeals is conducted like a court of law and will hold oral arguments and accept written briefs throughout the process.
Adjustment Of Status From An Immigrant Visa (Family-Sponsored/Employer-Sponsored)
My petition has been approved. How do I get my green card?
In order to adjust status from an immigrant visa to permanent resident, an adjustment of status application must be filed. To support this application, evidence of eligibility must be submitted – most commonly the approved petition as well as the supporting documents that were submitted with the original petition. A separate adjustment of status application must be submitted for each person applying for a green card. In addition to the supporting documentation, the beneficiary is also required to arrange a medical examination and have the results presented to them and submitted to the USCIS with the application in a sealed envelope. Once prepared, the application can be submitted with the appropriate filing fees. Once the application is processed (including any requests for evidence, notices sent for fingerprinting and other required tests and documentation), it is sent to the nearest USCIS (or consulate for those living abroad) to schedule an interview. It can take months for the interview to take place, and they are scheduled well in advance. This allows the beneficiary to obtain all relevant documentation that may have been requested for further inspection (i.e. for accuracy if no original was filed). On the day of the interview, the applicant should be prepared to take his passport, I-94 (if he is already in the U.S.), all original documents submitted throughout the application process, and all documents pertaining to the submitted petition.
In addition to the above, applicants applying under a spousal visa must make sure to take their birth certificates, identification cards, social security cards (when applicable), proof of cohabitation and any other documentation that would establish that the marriage was not entered under fraudulent motives.
When an interview is held, the decision is usually made by the officer at the end of the interview.
Approval of Adjustment of Status Application
If approved, the officer will then stamp the temporary evidence of permanent residency into the applicant’s passport. At this point, the applicant will await receipt of his physical green card in the mail.
Denial of Adjustment of Status Application
If the adjustment of status is denied, the application will receive a decision in writing listing the reason(s) for denial. In addition to the denial, a notice to depart the U.S. within a certain time period is also sent to the applicant. It is best to contact an attorney to see what options, if any, are available at this point.
Adjustment Of Status For A Non-Immigrant
I am under a non-immigrant visa, how can I get my green card?
There are some non-immigrant visas that can be converted to permanent residency if certain conditions are met. These conditions are determined based on the type of visa, and the individual applicant’s situation. It is important to note that when applying for a non-immigrant visa, you must demonstrate your non-immigrant intent (that you do not intend to stay in the U.S. past the time required to achieve the purpose of your visa. For example, students only stay in the U.S. until they graduate). Therefore, when adjusting status from a non-immigrant visa, the applicant must demonstrate that his intention to stay in the U.S. temporarily was valid at the time of applying for a non-immigrant visa and that during the course of his stay, his situation changed, resulting in a desire/need to stay in the U.S. permanently. This process is quite difficult for many non-immigrant applications; however, some of the more successful non-immigrant visa conversions to permanent residency are: K visas, H-1 visas, L-1 visas and, E-2 visas (along with their family members in the appropriate family category). While the E-2 visa and L-1 visa holders must meet certain requirements determined on an individual basis, K and H visa holders are permitted “dual intent”. Dual intent allows the non-immigrant to hold non-immigrant status while intending to remain in the U.S. from the start of his H/K visa period. When in H or K status, the applicant can apply just for adjustment of status using the same procedure as an immigrant.
Those on E-2, L-1 or other non-immigrant status must include in their application, reasons for why they should be permitted to change their intent (or why their intent changed after they landed in the U.S.). This is in addition to the adjustment of status.
The Application Process
In order to adjust status from non-immigrant to permanent resident, an adjustment of status application must be prepared. A separate adjustment of status application must be submitted for each person applying for a green card. In addition to the supporting documentation, the applicant is also required to arrange a medical examination submit the results (in a sealed envelope) with the application and appropriate filing fees to the USCIS. Once the application is processed (including any requests for evidence, notices sent for fingerprinting and other required tests and documentation), it is sent to the nearest USCIS office to schedule an interview. It can take months for the interview to take place, and they are scheduled well in advance. This allows the beneficiary to obtain all relevant documentation that may have been requested for further inspection (i.e. for accuracy if no original was filed). On the day of the interview, the applicant should be prepared to take his passport, I-94 (if he is already in the U.S.), all original documents submitted throughout the application process, and all documents pertaining to the submitted petition.
When an interview is held, the decision is usually made by the officer at the end of the interview.
Approval of Adjustment of Status Application
If approved, the officer will then stamp the temporary evidence of permanent residency into the applicant’s passport. At this point, the applicant will await receipt of the physical green card in the mail.
Denial of Adjustment of Status Application
If the adjustment of status is denied, the application will receive a decision in writing listing the reason(s) for denial. In addition to the denial, a notice to depart the U.S. within a certain time period is also sent out the applicant. It is best to contact an attorney to see what options, if any, available at this point.
Tracy P. Jong, Esq. |
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