Processing Procedures for Permanent Visas through Family Sponsorship
Overview of Processing Procedures
- Step 1: Filing Form I-130, Petition for Alien Relative
- Step 2: Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa
- Consular Processing of Immigrant Visa
Step 1: Filing Form I-130, Petition for Alien Relative
The first step for all permanent visas through family sponsorship requires the filing of a Form I-130, Petition for Alien Relative, with evidence documenting the familial relationship, with the U.S. Citizenship and Immigration Services. The person filing the petition (the U.S. citizen or U.S. lawful permanent residence) is called the “petitioner”. The person being sponsored for U.S. lawful permanent residence (commonly referred to as a “green card”) is called the beneficiary. When the USCIS approves the I-130 petition, a Form I-797 Approval Notice is issued. Once the I-130 petition is approved, an individual can proceed to Step 2 when his/her priority date is current.
A priority date is established on the date an I-130 petition is received by the USCIS. The priority date determines a person’s place in line in one of the four family-based preference categories. Priority dates are generally allocated based upon a person’s country of birth, not nationality. For example, a person applying for First Preference Family-Based Category (FB-1) with a Japanese passport, but born in Mexico would be classified under the Family-Based Category (FB-1) Mexico quota.
Due to the current quota system, when an I-130 petition is approved, a person needs to wait until his/her priority is at the “front of the line”.
Around the middle of every month, the U.S. Department of State (DOS) publishes the Visa Bulletin which summarizes the availability of immigrant numbers. Allocations of immigrant visa numbers are made in chronological order of priority date under the numerical limitations imposed by law.
If the demand for available immigrant visas in a particular visa preference category exceeds supply, an immigrant visa cannot be issued until the Visa Bulletin publishes the priority dates that can be allocated an immigrant visa. This is called the cut-off date. Only applicants with a priority date on or earlier than the cut-off date ion his/her preference category may be allotted an immigrant visa number.
An additional consideration is a person’s nationality. If a person is a national of China, India, Mexico or the Philippines, there may be a longer wait to file the I-485 because high demand for immigrant visas from these countries greatly outstrips supply on a regular basis.
Since Immediate Relatives are not subject to the quota system, if the immediate relative is physically in the United States, an Adjustment of Status Application (Form I-485) may be filed concurrent with the I-130 petition. If the immediate relative is physically outside the United States, once the I-130 petition is approved, the file is immediately transferred for Consular Processing of the Immigrant Visa. In some countries, the U.S. Embassy or Consulate will allow individuals to file the I-130 petition directly with the Embassy or Consulate expediting the process.
Step 2: Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa
Adjustment of Status (Form I-485)
Once an I-130 petition is approved, the person’s priority date is current, he/she is legally present in the United States, and the person wishes to adjust his or her status from nonimmigrant to immigrant while in the United States, the person files a Form I-485 Adjustment of Status application with the USCIS. All applicants must submit medical examinations with the I-485. Further, all applicants over the age of 14 must undergo fingerprinting and a FBI background check.
Travel and Employment During the Adjustment of Status Process
When an adjustment of status application is filed, the principal applicant and each family member may apply for an Employment Authorization Card (EAD), which authorizes employment in the U.S., and an Advance Parole (AP), which authorized international travel and re-entry into the U.S.
As long as the adjustment of status application is filed prior to the expiration of a person’s nonimmigrant status, the person is deemed “in-status” and can remain in the United States after expiration of the nonimmigrant status set forth on the person’s Form I-94, Arrival/Departure Card. In order to continue working without any gap in employment, a person should apply for an EAD the same time the I-485 is filed.
The AP is a critical document if a person does not possess a valid H-1 or L-1 visa because, after the submission of an I-485, neither the principal applicant nor his/her family members may leave the United States without first obtaining the AP. If such a person departs the U.S. without first obtaining an AP, that individual may not be readmitted into the United States.
If the principal applicant has a valid H-1 or L-1 visa, he or she may continue to work and travel utilizing the H-1 or L-1 visa as long as his/her status remains valid and is returning to the U.S. to continue employment with the same petitioning company that sponsored the H-1 or L-1 status. H-4 or L-2 visa holders may continue to travel and legally remain in the United States.All nonimmigrant visa classifications, other than H-1 or L-1, require issuance of an AP to return to the U.S. after international travel while an Adjustment of Status application is pending.
Delays Due to Lengthy FBI Background Checks
When the USCIS processes the I-485, all applicants under the age of 14 years must undergo a FBI background check. For some individuals, the FBI background check is completed very quickly, sometimes in a few months. For others, the process can take longer, sometimes a few years. The USCIS issues a Biometrics Appointment Notice to each family member requiring an FBI background check. Each person is directed to go to an Application Support Center (ASC) and have his/her fingerprints scanned for the check.
Personal Interview at USCIS District Office
When a case is ready for final processing, the USCIS send an appointment notice for the petitioner and beneficiary to appear for a personal interview. After the interview is completed, the USCIS will make a determination whether to approve or deny the I-485 adjustment of status application.
When the USCIS approves the I-485, the USCIS issues an approval notice. The USCIS issues the actual green card soon thereafter.
Consular Processing of Immigrant Visa
After an I-130 is approved by the USCIS, if a person has selected the Consular Processing option, the USCIS will transfer the I-140 file to the National Visa Center (NVC). Upon receipt of the file, the NVC will issue a notice the file has been received. If the person’s priority date is not yet current, the NVC informs the person the file will remain at the NVC for storage.
Once a person’s priority date is current, the NVC issues an Immigrant Fee Bill requesting the individual to pay the immigrant visa application fee to the NVC. When NVC receives the payment from the applicant, NVC issues a Form DS-230 Part I with instructions for completion by the applicant and any family members. The NVS also instructs the person obtain documentation, such as police clearance certificates, military records, marriage certificates, etc.. The DS-230 Part I must be completed and returned to the NVC. Upon receipt of the completed DS-230 Part I, NVC will issue Form DS-230 Part II and additional instructions regarding required documents for the immigrant visa interview.
Concurrent with the issuance of the DS-230 Part II, NVC transfers the person’s file to the U.S. Embassy or Consulate located in the person’s home country. Upon receipt of the file from the NVC, the case data is entered into the U.S. Embassy’s or Consulate’s computer systems for tracking of the case and the person is scheduled for an immigrant visa interview. The person receives the notice of interview date from the U.S. Embassy or Consulate. The person must return to his/her home country to undergo a medical examination with a U.S. Embassy designated physician and attend a personal interview.
After the immigrant visa interview, the applicant is issued an immigrant visa. The applicant must enter the United States within six months of immigrant visa issuance. Failure to make an entry within six months renders the immigrant visa invalid. Further, the principal applicant must either enter before his/her family members or at the same time.
When entering the United States for the first time after immigrant visa issuance, the applicant is inspected and the immigrant visa validated. The admission stamp placed on the immigrant visa validates it and demonstrates the applicant is a U.S. lawful permanent resident. The actual green card is mailed to the individual’s residence in the United States.
