Green card to be green again in redesign.

USCIS has announced that it has redesigned the Permanent Resident Card (green card) with enhanced security features - and a "new" color.  For many years the card has been white, pink before that, and green a long time ago.

The new security features are described as follows:

Secure optical media will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Existing card holders don't need to do anything. They will get new cards as they apply for renewals or replacements in the normal course.

For more information, see the USCIS press release and the fact sheet.

December 2009 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for December 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the November and October bulletins.  The only changes are that India EB-3 and 'other worker" categories move forward by 10 days.

Visa Bulletin for November 2009 issued

The US Department of State has released the new Visa Bulletin for November 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the October bulletin. Any change is just a month, at most.

Permanent residence (green card) petitions down by half

The Associated Press reports that the number of employers filing immigrant petitions has declined dramatically in the past two years. According to AP, CIS received about 1/2 the number of I-140s in Fiscal Years 2008 and 2009 than it did in each of the previous years.

There were almost 235,000 applications submitted in fiscal 2007, almost 104,000 the following year, and fewer than 36,000 through the first eight months of fiscal 2009, according to data obtained by the AP.

One side-effect of the drop in applications is that I-140s are now being processed much faster than before, the report notes.

The decline in filings is attributed to "weak job market, long waits for immigrant visa availability, deep job cuts in sectors that have traditionally lured large numbers of applicants and more competition from American job seekers."

Permanent residence not abandoned despite being outside the US for 2.5+ years - BIA

Many people with US permanent residence (green cards) want to know how long they can stay outside the US without abandoning their permanent residence. The Board of Immigration Appeals (BIA) recently made a very interesting decision in a case involving this issue. They ultimately considered that a person had not abandoned his permanent residence despite being outside the US for over 2.5 years.

In this BIA case, the foreign national (Mr. X) returned to the US in 2000, having been outside the US for 2 years and 9 months. On re-entering the US, Mr. X explained that he had left the US to care for his sick grandmother. The Department of Homeland Security (DHS) claimed that Mr. X did not leave to care for a family member and that he intended to abandon his lawful permanent resident status.

The BIA considered case history on this issue, including Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005). In Katebi, the court stated that "when an alien has a colorable claim to [permanent] resident status, the DHS has the burden to prove that the alien is not eligible for admission by clear, convincing, and unequivocal evidence."

The BIA, citing Katebi stated that

a permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.

Ultimately, the issue is one of intent, and not, as the Immigration Judge's opinion suggests, whether the absence from the United States was "necessary" in the first place...... In other words, a returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period; the key remains whether his activities are consistent with an intent to return to the United States as soon as practicable....

Factors to be considered in evaluating the alien's intent include the alien's family ties, property holdings, and business affiliations within the United States, and the alien's family, property, and business ties in the foreign country.

In the instant case, Mr. X took no steps to establish significant ties in Hong Kong that would show that he intended to live there permanently. Instead, he apparently spent his time caring for an elderly relative and helping his sister, who was going through a divorce while caring for two small children. The BIA notes that Mr. X "did not have traditional employment in Hong Kong, did not have significant income there or open a bank account, and did not attempt to secure housing for himself." In addition, Mr. X had lived in the US for about 12 years after becoming a permanent resident, and had considerable family ties in the US.


Despite the above decision, which is non-precedent, we still urge all permanent residents who will spend 6+ months outside the US to get re-entry permits to be safe. See prior posts on this issue: http://martinvisalaw.blogspot.com/search/label/reentry%20permit.

USCIS to stop issuing I-551 stamps routinely

USCIS has announced that is is rescinding the May 2009 policy that asked CIS district offices to issue I-551 stamps as a matter of course. The I-551 is a stamp in a passport that confirms that permanent residence has been approved. It is temporary evidence of permanent residence until the "green card" is produced.

In recent years, green cards have been created and mailed withing a couple of weeks of permanent residence approval, so CIS did not issue the I-551 stamps unless there was an emergency. However, in May 2009, card production was delayed while they upgraded equipment, so CIS started issuing the I-551 stamps again.

Hopefully card production is back to normal, and approved permanent residents won't have problems because of having no evidence of permanent residence approval. CIS will still issue I-551 stamps, but only in emergency cases.

I have a green card, can I live outside the US for a few years?

People with permanent residence (green cards) often inquire as to whether they can live outside the US and still maintain their permanent residence (PR). Many people believe that if the green card holder returns to the US at least once every 12 months, there will be no risk of losing permanent residence. Immigration regulations do state that if a PR is outside the US for one continuous year, there is a presumption that PR has been abandoned. However, DHS (Department of Homeland Security) can decide that a person has abandoned PR after they have been gone for less than a year. The key is whether the person intended the stay abroad to be temporary, not the length of time outside the US.

If you want to live outside the US for 6 months or more, it is critical that you can show your intention to return to the US. This intent can be shown by as many of the following as possible:

1. Continuing to file US tax returns;

2. Keeping a house or other residence here;

3. Putting furniture and other belongings in storage rather than selling them;

4. Having some immediate family members staying in the US;

5. Definite plans to return to a job or studies in the US;

6. Maintaining memberships in clubs, church groups, etc in the US.

We recommend getting a reentry permit if you will be on an extended stay outside the US of 6 months or longer. A reentry permit allows a permanent resident or conditional resident to apply for admission to the US upon returning from abroad during the permit’s validity, without having to obtain a returning resident visa from the U.S. Embassy or consulate. A reentry permit does not guarantee admission into the United States. Aliens with reentry permits are still subject to inspection at the port of entry and may be denied admission if they are inadmissible.

Reentry permits are generally valid for 2 years from the date the reentry permit was issued. A 2^nd reentry permit might be approved for another 2 years, and therafter they are approved for one year at a time. You should apply for this benefit before leaving the United States. Ideally, you will file at least a few months before you leave, to allow time for the biometrics appointment to be scheduled before you travel.

For more information, please see these prior blog posts: http://martinvisalaw.blogspot.com/search/label/reentry%20permit

Visa Bulletin for April 2009 released - significant retrogression

The US Department of State has released the Visa Bulletin for April 2009. In family-based categories there is very slight movement forward. In employment-based categories, however, the dates actually retrogress (move backwards) for some categories. In many cases, the retrogression is 2+ years, unfortunately. EB-3 for China retrogresses almost 8 months, EB-3 for Mexico retrogresses by nearly 6 months, EB-3 for Philippines and all other countries moves back by over 2 years.

The "other workers" categories also show retrogression in all categories: China by 20 months, India by 8 months, Mexico by 2 years, and Philippines and all other countries by over 2 years. Immigrant (permanent resident) visas for religious workers are "Unavailable" in April.

For an explanation of preference categories and priority dates, see here.

FAQs on Conditional Permanent Residence

My experience answering questions on Avvo is showing me that certain questions frequently. I blogged about one area lately here, regarding Afidavits of Support: http://martinvisalaw.blogspot.com/2009/03/faqs-on-affidavit-of-support.html. Also related to family-based immigration is the popular subject of conditional permanent residence.

What is conditional permanent residence?

Conditional permanent residence (CPR) is granted to a foreign national who applied for permanent residence (green card) based on a marriage that is less than 2 years old at the time of the PR interview. This provision is designed to reduce marriage fraud. Towards the end of the 2 year CPR period, the couple needs to file a petition to remove the conditions. If approved, the foreign national then gets “full” permanent residence.

How do I remove the conditions on permanent residence?

You and your spouse need to file an I-751, Petition to Remove the Conditions on Residence, within the 90 days before the CPR expires. This means, normally, that the couple files the petition 21 months or later (but no more than 24 months) after CPR was granted.

The I-751 is filed with USCIS, accompanied by evidence that the marriage was entered in good faith. This evidence can include copies of documents in joint names of the couple, e.g., insurance papers, bank statements, credit card statements, leases, mortgages, joint tax returns, birth certificates for any children of the marriage, etc.

After you file the petition, you and your spouse might be called for interview. CIS has discretion to waive the interview if the agency doesn’t think that an interview is needed. If there is no interview, your case will be approved and you will get your new green card in the mail.

Will CIS remind me that I need to file the I-751? 

No, CIS will not send any reminders that your CPR is about to expire. You need to track this expiration date very carefully yourself. What if I am late filing the I-751? Failure to file will result in loss of your resident status. Late filings are permitted with sufficient explanation of the reason(s) for being late in filing.

What if my case has not been approved and my conditional green card expires? 

 The receipt for the I-751 filing should include a note automatically extending the permanent residence for one year. This allows the foreign national to continue to work and travel as a permanent resident. If the I-751 is still not decided at the end of that one year extension, the foreign national can visit their local CIS district office to request an I-551 stamp ion their passport. This I-551 stamp is further evidence of permanent residence and, like the I-751 receipt notice, is as good as a green card for work and travel.

What if the marriage has ended or my spouse refuses to sign the I-751? 

You may request a waiver of the joint petitioning requirements if:

• You entered into your marriage in good faith but the marriage ended by annulment or divorce. 
• You entered into your marriage in good faith but during the marriage you were battered by, or subjected to extreme cruelty committed by your spouse.
• You are a widow or widower of a marriage that was entered into in good faith. 
• Terminating your permanent resident status and leaving the US would cause extreme hardship. 

You can claim multiple grounds for a waiver, if more than one reason applies. If applying for a waiver, you can file the I-751 at any time, not just within the 90-days before CPR expires. If you are requesting a waiver, you need to provide the following documents in addition to proof that the marriage was genuine:  
Widow/er: a copy of the death certificate
Marriage terminated: a copy of the divorce decree or other document terminating or annulling the marriage.
You or permanent resident child were battered or subjected to extreme cruelty: include:
A. Evidence of the physical abuse, such as copies of reports or official records issued by police, judges, medical personnel, school officials and representatives of social service agencies, and evidence that the marriage was genuine, as described above.
B. Evidence of the abuse, such as copies of reports or official records issued by police, courts, medical personnel, school officials, clergy, social workers and other social service agency personnel. You may also submit any legal documents relating to an order of protection against the abuser or relating to any legal steps you may have taken to end the abuse. You may also submit evidence that you sought safe haven in a battered women's shelter or similar refuge, as well as photographs evidencing your injuries.
C. A copy of your divorce decree, if your marriage was terminated by divorce on grounds of physical abuse or extreme cruelty.
Extreme hardship if PR not approved: include evidence that your removal would result in hardship significantly greater than the hardship encountered by other aliens who are removed from this country after extended stays. The evidence must relate only to those factors that arose since you became a conditional resident.

Where can I get more information?

CIS website

Photo by dlisbona. (If this couple hasn't filed the I-751 by now, they really have a problem!)

FAQs on Affidavit of Support

I have been actively answering immigration questions on Avvo.com, and many of these questions relate to the Affidavit of Support requirement in many permanent residence applications. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.

1. What is an Affidavit of Support and when do I need one?

The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.

2. Do all immigrants need an Affidavit of Support?

No, the following immigrants do not need an I-864:

• Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).
• Relatives who enter as refugees or asylees.
• People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).
• Children who can automatically acquire citizenship through a parent.

3. What are the income requirements for an Affidavit of Support?

The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.

4. What is “household size?”

The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).

5. Who can be a sponsor?

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.

6. What if a sponsor can’t meet the in come requirements?

If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:

(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.

(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.

(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

7. Where can I find more information?

For further details about the Affidavit of Support obligations, please see the following links:
USCIS Affidavit of Support FAQs
DOS FAQs
My prior blog on 2009 poverty guidelines.

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I welcome all the comments to this posting. However, please do not ask questions about your particular case via the blog. I can only provide general information on this forum. If you want information specific to your situation, please contact an experienced immigration lawyer directly.
Photo by stopnlook

Consequences of layoffs on H-1B workers - Part 2

(continued from yesterday)

6. What happens to my green card process if I am laid off?

If you have reached the final step of the permanent residence process, and have filed your Adjustment of Status (AOS), you may be able to remain in the US while the AOS is pending. Just having the AOS filed does not, however, allow you to work in the US or return from international travel once your H-1B ends. You must have specific work authorization (an EAD) to allow you to work and Advance Parole to allow you return from overseas.

A foreign national is permitted change employers and keep the AOS filing if the AOS has been on file for 180 days or more, and the new occupation is in the “same or similar occupational classification” as the one that formed the basis of the permanent residence filing. This means that e H-1B worker who was a Software Engineer for Employer A and then got a job as a Software Engineer for Company B would qualify. However a Software Engineer who went to work as a French teacher could not use this “portability” provision.

If you have not reached the final step of the permanent residence process, unfortunately you cannot complete the existing permanent residence process.

Link to Consequences of layoffs for H-1B Workers, Part 1

Visa Bulletin for March 2009 released

The US Department of State has released the Visa Bulletin for March 2009. In most categories there is very slight movement forward, just by a few weeks or months, if at all. Priority dates for Mexican nationals in the employment-based 3rd and "other workers" categories show the greatest movement. The 3rd preference category moves forward by 4 1/2 months, while the "other worker" category advances by 18 months.

Can I "reactivate" an old green card?

People often wonder if they can enter the United States to work, using a permanent resident card (green card) that they got when they last lived here many years ago. These people have usually been outside the US, in their home countries, for years and are now considering returning to the US. Permanent residence is granted to a person on the basis, not surprisingly, that they intend to reside in the US.

If a permanent resident is going to work outside the US for 6 months or longer, we recommend that they apply for a re-entry permit. This is a document requesting permission to re-enter the US after an extended absence. Requesting a re-entry permit notified CIS in advance that you plan a protracted stay, however that you don't intend to abandon permanent residence.

A person who has returned to their home country for years and now wants to "reactivate" their green card is unlikely to have been filing for re-entry permits. In those situations, it is unlikely that immigration at the airport (CBP) will admit the person as a permanent resident. If CBP questions the traveller and finds out that the traveller has been living outside the US for years, CBP will almost certainly revoke permanent residence and confiscate the card. This is not an unreasonable action if a former permanent resident really has shown the intention of abandoning their US residence. It is likely that the CBP officer who revoke permanent residence will allow the traveller to "withdraw" their application for admission to the US. However, in the worst case scenario, the officer could conclude that the traveller had committed fraud in attempting to enter as a permanent resident. A finding of fraud means a permanent bar to ever entering the US, so this possibility, even if unlikely, should be considered very seriously.

2009 Poverty Guidelines published

The US Department of Health and Human Services has published its poverty guidelines for 2009. The guidelines for the 48 contiguous states and DC are:

1 person in family: $10,830
2 people: $14,570
3 people: $18,310
4 people: $22,050
5 people: $25,790
6 people: $29,530
7 people:$33,270
8 people: $37,010

Alaska has different levels.

These guidelines are relevant in immigration law because family-based permanent resident applications require an Affidavit of Support from the "sponsoring" relative. The relative must show that s/he has income or assets worth at least 125% of the relevant poverty guideline figure. So, for example, a woman in New York who is petitioning for her husband and his child needs to show income/assets of at least $22,887.50 to meet the I-824, Affidavit of Support requirements.

Beware of fake immigration lawyers

The New York Times has posted an article about a Bronx man who had posed as an immigration lawyer for over 15 years, without having any law license. The man is charged with three counts of defrauding clients and faces up to 7 years in jail.

The article reminded me of a case I handled very early in my immigration career, in about 1997. A family came to my then law firm after paying thousands of dollars to a "notario" who promised to help them get permanent residence. The family had no legal basis for permanent residence, however the notario filed bogus asylum claims for them. These asylum applications had no foundation, so they were not surprisingly denied and the family ended up in deportation (as it was called then) proceedings instead.

This was a wonderful extended family, hard-working, involved in the community, active in their church and in volunteer work, and not wealthy. They had spent a lot of their savings on this notario, only to end up in a far worse situation than before they ever met her.

Unfortunately, this story is not uncommon. In some Latin American countries, "notarios" are licensed lawyers, so many people mistakenly believe that someone calling themselves a "notario" in the US is also a lawyer. As the American Bar Association states:

“Notarios” or “Immigration Consultants” have become an increasingly serious problem in immigrant communities. Notarios operate throughout the U.S. and use false advertising and fraudulent contracts for services which cannot be provided. Notarios present themselves as qualified to help immigrants obtain lawful immigration status, and may charge a lot of money for help that they never provide. Often, immigrants’ permanently lose opportunities to pursue immigration relief because a notario has damaged their case.

Various organizations actively advocate against notarios, and there are procedures in each state to register a complaint against a notario. This link contains information about the complaint procedure. The American Immigration Lawyers Association has published information leaflets for each state. Attached is a sample for Texas. Please contact us for information on other states.

Fingerprinting for re-entry permits

It is common, and recommended, for US permanent residents to file for re-entry permits if they will be spending long periods of time outside the US. In 2008, USCIS introduced a new requirement that applicants for re-entry permits needed to be fingerprinted before the permit would be issued. The biometric regulations were unclear as to whether an application would be abandoned if the foreign national left the US before having biometrics taken. The American Immigration Lawyers Association now believes that foreign nationals can leave the US and return for biometrics.

Biometric appointments are normally scheduled within about 30 days of CIS getting the I-131 (the application form for re-entry permits). However, foreign nationals often need to travel outside the US, usually to assume or resume the foreign position, sooner than 30 days after filing. In that case, the applicant can request expedited scheduling of the biometric appointment.

If the applicant gets an appointment and must leave before that date, she can try to walk into an Application Support Center (ASC, the office that takes biometrics) with proof of the imminent departure, and see if the ASC will take the biometrics. If the ASC refuses this request, or if the applicant does not get the appointment until after she has already left the US, she can reschedule. She can request a specific date, but CIS cannot schedule appointments more than 30 days in advance.

It is very important to attend the biometrics appointment, or request a reschedule to avoid the application being denied due to abandonment. The foreign national could reapply, but this is expensive and cumbersome.

Permanent residents (green card holders) now need to provide biometrics on entering US

On December 19, 2008 the DHS published a final rule expanding significantly the population of aliens subject to the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) to include permanent residents. It becomes effective January 18, 2009.

US-VISIT will apply to all permanent residents entering or exiting from an air or seaport. Permanent residents entering through land ports of entry, however, will be required to provide fingerprints only if they are referred to secondary inspection. Not all land ports of entry currently have ten-print capability; installation at all ports is expected to be complete within the next month.

NB: The American Immigration Lawyers Association reminds permanent residents with criminal convictions that they are likely to be detected on returning to the US, and they should be prepared to present evidence regarding their admissibility.

The US-VISIT program was established in 2003 to verify the identity and travel documents of visitors. US-VISIT automates this verification by comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. In many cases, this process begins overseas at a U.S. visa issuing post, where a traveler's biometrics—digital fingerprints and a photograph—are collected and checked against a watch list of known criminals and suspected terrorists. When the traveler arrives in the United States, border officials collect the same biometrics to verify that the person at the port is the same person who received the visa.

For more information on the US_VISIT program, please click on the headline above.

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