Spouses, unmarried minor children (under the age of 21 years) and unmarried sons or daughters of U.S. lawful permanent residents (green card holders) are classified as Second Preference family-based immigrants. Spouses can be either heterosexual or homosexual. Second preference family-based immigration is subject to quota limitations.
Filing of I-130 Immigrant Visa Petition-Step 1
An I-130 petition is filed with the USCIS by the U.S. lawful permanent resident on behalf of the qualifying family member. Evidence of the familial relationship must accompany each petition. When the USCIS approves the I-130 petition, a Form I-797 Approval Notice is issued.
Issue-Post I-130 Immigrant Visa Petition Approval Wait Due to Quota Limitations
Due to the lengthy quotas, a person will not be able to immediately commence the second and final step in the process. A priority date is established for the qualifying family member on the date the I-130 petition is filed with USCIS. The priority date determines a person’s place in the queue of a specific family-based preference category. Priority dates are allocated based upon a person’s country of birth, not nationality. A person may not commence the second step in the process until his/her priority date is at the “front of the line”.
Issue – Monitoring the Priority Date
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 (i.e., date of filing the PERM application) under the numerical limitations imposed by law.
Section 201 of the Immigration and Nationality Act (INA) imposes a worldwide annual limit of 140,000 employment-based immigrant visas. Section 202 of the INA prescribes that the per-country limit for all immigrants from a country be set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620 per annum.
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 shows 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 in his/her preference category may be allotted an immigrant visa number.
If an individual’s priority date is indicated as “C” in the Visa Bulletin, this means there are immigrant visa immediately available for persons in the listed classification. The “C” stands for “Current”. If the Visa Bulletin shows a “U” for a particular preference category, this means immigrant visas are unavailable. The “U” stands for “Unavailable”.
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 proceed to the second and final step in the process because high demand for immigrant visas from these countries greatly outstrips supply on a regular basis.
Final Processing: Step 2
Once a person’s priority date is current, an individual must decide which process to undertake to complete the second and final step in processing the green card application: Adjustment of Status Application or Consular Processing of Immigrant Visa.
Adjustment of Status (AOS)
Adjustment of Status is the process whereby a person requests USCIS to adjust his/her status from a legal temporary status to U.S. legal permanent resident status. When the USCIS processes the I-485, all applicants under the age of 14 years must undergo a FBI background check. The USCIS directs each person to visit an Application Support Center (ASC) and have his/her fingerprints scanned for the check.
Issue-Travel and Employment During the Adjustment of Status Process
When an adjustment of status application is filed, the qualifying family member may apply for an Employment Authorization Card (EAD), which authorizes employment in the U.S., and an Advance Parole (AP), which authorizes international travel and re-entry into the U.S. The USCIS often issues one document that combines the employment authorization and the advance parole. This document is called a Combo Card. Application for a Combo Card should be submitted with the Form I-485.
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 a Form I-485, the qualifying family member may not 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.
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. If a person 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 he/she 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.
The USCIS schedules an interview for all qualifying family members. The length of time between filing of the adjustment of status application and the interview depends in local USCIS office caseloads.
Approval of the I-485
When the USCIS approves the I-485, a Form I-797 Approval Notice is issued. The USCIS then manufactures the I-551, Alien Registration Receipt (commonly known as a green card) and mails it to the applicant.
Consular Processing (CP)
The alternative option to the Adjustment of Status application is Consular Processing. When choosing the Consular Processing option, a person is seeking final interview at the overseas U.S. Consulate in the person’s home country.
After an I-130 is approved by the USCIS, if a person chooses the Consular Processing option, the USCIS will transfer the I-130 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 current, the NVC notices states the file will remain at the NVC until the priority date is current. Once the priority date becomes 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, the NVC issues instructions for completing the registration forms.
Further, the NVC issues a list of required documents for submission to the NVC, such as police clearance certificates, military records, marriage certificates, etc. Upon receipt of the completed registration forms and required documents, the NVC transfers the file to the appropriate overseas U.S. consulate and schedules the immigrant visa interview date.
Upon U.S. Consulate receipt of the file from the NVC, the case data is entered into the U.S. consulate’s case tracking system. The person must return to his/her home country to undergo a medical examination with a U.S. consulate 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 at the U.S. land border or airport 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.