Spouses, parents and minor children (under the age of 21 years) of a U.S. citizen are classified as Immediate Relatives. Spouses can be either heterosexual or homosexual. Immediate Relatives can immigrate to the U.S. without any quota restriction unlike other family members of U.S. citizens and U.S. lawful permanent residents. The processing time to obtain a green card for Immediate Relatives is very quick.
Filing of I-130 Immigrant Visa Petition
An Immediate Relative petition is filed with the USCIS by the U.S. citizen on behalf of each qualifying family member on Form I-130. Evidence of the familial relationship must accompany each petition.
If the Immediate Relative is in the United States, the U.S. citizen may file a Form I-485 together with the I-130 petition, and request interview in the United States. This process is commonly known as Adjustment of Status. If the Immediate Relative is outside the U.S., the I-130 petition, once approved, is transferred to the National Visa Center (NVC) for interview at an overseas U.S. Consulate. This process is commonly known as Consular Processing.
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 or, in some cases, unlawful status, to U.S. lawful 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 Immediate Relative 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 Immediate Relative 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 Immediate Relatives. The length of time between filing the adjustment of status application and the interview depends on local USCIS office caseloads. Processing may be as quick as six months in some jurisdictions while other may take more than one year
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 the 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. 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 address in the United States.
- A person that enters the U.S. lawfully but, for some reasons, becomes illegal, can still adjust status as an Immediate Relative. Unlawful employment and overstaying temporary status isforgiven, with few exceptions. However, a person that “sneaks” into the country cannot adjust status even if an Immediate Relative.
- There are complex rules governing when a person entering the United States to marry a U.S. citizen can marry and file an adjustment of status and avoid a finding of fraudulent intent when entering the U.S. Failure to properly navigate these rules can result in a permanent bar from ever entering the United States.
- The U.S. citizen sponsor of an Immediate Relative must be able to demonstrate he/she has sufficient financial resources to provide for the Immediate Relative and ensure the person will not become a financial burden of the U.S. government. The U.S. citizen must provide copies of recent federal income tax returns. Further, the U.S. citizens must enter into a contract (Form I-864) with the U.S. government promising that, if the Immediate Relative applies for any U.S. government mean-tested benefit, the U.S. citizen will reimburse the U.S. government for all the costs.