What are the steps to a green card via family sponsorship?

1. I-130 Immigrant Petition.
The US citizen or permanent resident petitioner (sponsor) files a Form I-130 with the USCIS or with a US consulate outside the US, if the petition is outside the US. If both the petitioner and the beneficiary are inside the US, and if they qualify as Immediate Relatives, the 2nd step can be filed concurrently with the first. In all other cases, the beneficiary must wait until the I-130 is approved and the priority date is current before he can file the 2nd step.

2. Adjustment of Status or Consular Processing.
The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, his dependent family members also file for permanent residence at this stage. This final step involves the foreign national showing to USCIS or the consulate that there is no reason why should not be admitted as permanent residents, i.e. that there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.

(i) Adjustment of Status.
If the foreign national’s priority date is current*, he can file the Adjustment of Status (AOS) with the I-130. Filing the I-130 and AOS concurrently typically always happens in marriage-based cases. If the priority date is not current, the foreign national must wait until it is current before he can file the AOS. Once the USCIS is ready to approve permanent residence, the foreign national and his “sponsor” are called for interview at their local USCIS office. Once the immigration officer is satisfied that the relationship is genuine, and that the foreign national has no bars to admissibility, CIS approves the case.

(ii) Consular Processing.
If the foreign national prefers, he can complete the permanent residence at his home consulate. This may be required if the foreign national is outside the US when the process is started. If the foreign national chooses consular processing, he cannot do the 2nd step until and I-130 is approved AND the priority date is current.

* Please see the FAQs on my website for an explanation of these terms. http://www.martinvisalaw.com/

What are the steps to a green card through employment?

Yesterday I wrote about the different preference categories in permanent residence (green card) processing. Employers and foreign nationals frequently ask what the steps are to getting a green card, so these are outlined below. Tomorrow I'll explain the steps in a family-based case.

PERMANENT RESIDENCE APPLICATION PROCEDURE

1. Labor Certification

1. If the preference category requires a test of the US job market, the first step involves getting a labor certification (called PERM) approved by the Department of Labor (DOL). The employer needs to conduct a prescribed number of recruitment methods, to see whether there is an available, qualified, US worker interested in the position. Because of the uncertainties of the job market, this is the most unpredictable step in the immigration process. Martin Immigration Law works closely with employers to analyze the position, requirements, and advertising, and to answer questions regarding the process. However, no immigration law firm can review resumes or screen applicants.

2. I-140 Immigrant Petition

(i) With labor certification
Once the labor certification is approved, the employer files an immigrant visa preference petition with the US Citizenship and Immigration Service (CIS, formerly INS). This petition needs to prove the following to USCIS:
(a) that the DOL has approved a PERM on behalf of this foreign national;
(b) that the foreign national has the education and experience required as listed on the labor cert. The employee will need to provide educational documents and copies of experience letters. Martin Immigration Law will discuss these with the employee at Step 1.
(c) that the employer can afford to pay the salary listed on the PERM.

(ii) Without labor certification
If the employee is in a category that does not require labor certification, the process starts with the employer filing an I-140. In that situation, the I-140 needs to include extensive detail about the employee’s qualifications for the classification requested. For example, if the employer is asking that the employee be classified as an outstanding researcher, we must include evidence of the foreign national’s publications, presentations, research experience, education, recommendation letters, etc.

3. Adjustment of Status or Consular Processing

The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, her dependent family members also file for permanent residence at this stage. This final step involves the employee and her family showing to USCIS or the consulate that there is no reason why they are not permitted to get permanent residence, i.e. there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.

(i) Adjustment of Status
If the foreign national’s priority date is current*, s/he can file the Adjustment of Status (AOS) with the I-140, or while the I-140 is pending. If the priority date is not current, the foreign national must wait until it is current before she can file the AOS.

(ii) Consular Processing
If the foreign national prefers, she can complete the permanent residence at her home consulate. If she chooses this option, she cannot do the 3rd step until and I-140 is approved AND the priority date is current. Consular processing used to be faster than AOS sometimes, but with concurrent filing of AOS now available, consular processing is less popular. It is also more cumbersome because of the travel requirements and the need for more documents than with AOS.

* Please see the FAQs on my website for an explanation of these terms.

What are preference categories and priority dates in immigration law and why do they matter?

There are 2 main routes to permanent residence (green card) in the US: employment-based and family-based. Less common routes include asylum, diversity lottery and investment.

Employment and family-based applicants are divided into different categories. In family cases, the categories depend on the family relationship. For example, married sons and daughters of US citizens are 3rd family-based preference. Employment cases are divided based on the type of position and job requirements. For example, foreign nationals in positions that require a master’s degree OR a bachelor’s degree and 5 years of experience are 2nd preference, or EB-2. For more details, click on the Permanent Residence link here: http://www.martinvisalaw.com/faqs.html.

Your priority date is generally the date that the first step in permanent residence (PR) was filed for you. This usually means the date that (a) labor certification was filed; (b) an I-140 was filed (if no labor certification was required); or (c) an I-130 was filed in a family-based case. Priority dates are important because they determine your place in the queue for the final step of the PR process. The Department of State publishes a Visa Bulletin every month, showing which priority dates are “current” for the following month. You can only file the final step of the PR process if the priority date is current.

The waiting periods vary depending on your preference category and your country of birth. The latest Visa Bulletin, showing the current priority date, is here: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html