Scenario 1: Jack, who was born in Poland and came to the U.S. as a student, has just become a U.S. Citizen. He would like to bring his parents and little brothers, who are both under 21, to the U.S. so that they can live in the U.S. near him.
- The Adjustment of Status process allows eligible foreign national relatives of U.S. Citizens and Green Card holders who are physically present in the U.S. to obtain a Green Card without having to return to their home country to complete Immigrant Visa processing outside the U.S
- If an immigrant visa number is immediately available then the Form I-130 (Immigrant Petition for Alien Relative) and the Form I-485 (Application to Register Permanent Residence or Adjust Status) can be filed “concurrently”, significantly quickening the Green Card process.
- Generally, only individuals lawfully present in the U.S. can file an Adjustment of Status unless a specific exemption applies.
Scenario 2: Jack’s old classmate Stephanie is also a U.S. Citizen. She is currently living and working in Italy, where she was born and where her parents live. She is expecting to return home to the U.S. in the next 6-12 months and would like to bring her parents back with her.
Scenario 3: Jack’s other friend, Juan, is also in the process of naturalizing to become a U.S. Citizen. He lives with his wife who is a foreign national. She came to the U.S. as a visitor but overstayed her visa.
Can Jack, Stephanie and Juan help their family members gain permanent residence? What’s the process?
In this article, let us take a look at Juan’s situation.
Among the rights and privileges of being a Legal Permanent Resident (LPR) or U.S. Citizen is the ability to sponsor family members so that they can also become legal permanent residents of the U.S. The Form I-130, Immigrant Petition for Alien Relative, is the most often used method by foreign national relatives of U.S. Citizens and Green Card holders to come to the U.S. to live permanently.
The I-130 Process: An Introduction
There are generally 2 steps in the I-130 process. The first step is the Form I-130, which establishes the familial relationship. The second step is for the foreign national relative to apply for an immigrant visa or permanent resident status on the basis of the approved I-130 petition.
In this article, we will focus only on Juan’s situation, where Juan will be filing the Form I-130 with USCIS and Juan’s wife will be filing for Adjustment of Status with USCIS while remaining in the United States. To read about Stephanie’s situation, where Stephanie is filing the Form I-130 from outside the United States and Stephanie’s parents applying for an immigrant visa at a U.S. Consulate abroad, or Jack’s situation, where Jack is filing the Form I-130 from inside the United States and Jack’s parents and brothers applying for an immigrant visa at a U.S. Consulate abroad, please check out our previous articles.
Step 1: Filing The I-130
The first step in filing the Form I-130 is to determine the foreign national’s eligibility to have a Form I-130 filed on their behalf. There are two main categories of relatives that are eligible to be beneficiaries for the Form I-130– Immediate Relative of U.S. Citizens and Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents.
a.Immediate Relatives of U.S. Citizen
Immediate relatives of U.S. Citizens include their spouse, unmarried children under 21 and parents. Unlike most other Green Card applicants, these individuals are not subject to any quotas, making them immediately eligible for an immigrant visa number upon approval of the I-130.
Note: In the case of immediate relatives, the U.S. Citizen must file a separate I-130 for each relative. This means that if the U.S. Citizen has a wife and 2 children abroad, he must file a separate I-130 for each individual. Also, a U.S. Citizen would have to file two separate I-130’s for each parent.
b.Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents
Other relatives of U.S. Citizens who may be sponsored are unmarried sons and daughters over the age of 21 (F1), married sons and daughters (F3) and siblings (F4).
The relatives of legal permanent residents who may be sponsored include the spouse and unmarried children under 21 (F2A) and unmarried sons and daughters over the age of 21 (F2B).
Note: In the case of the relatives in this second broad category, accompanying family members (spouse and/or unmarried children under 21) may be able to join the main beneficiary in adjusting status or coming to the U.S. without a separate petition. For example, if a U.S. Citizen was filing for his unmarried 24 year old daughter who had a 2 year old son, the child would be able to file an adjustment of status application (if they were in lawful status) or accompany his mother to the U.S. as a “derivative beneficiary.” This is true for all cases in this second category except the spouse of legal permanent residents.
Unlike the Immediate Relatives of a U.S. Citizen, Other Relatives of U.S. Citizens and Relatives of Legal Permanent Residents categories are subject to statutory quotas and only a certain number of people are eligible for an immigrant visa number each fiscal year under these categories. Each category of individuals described here has its own quota which is then subdivided by country. Because so many people apply in these categories, the quotas get over-used or “over-subscribed,” meaning a backlog results. Individuals in these categories can be waiting for one or two years or up to 20 years to be able to apply for adjustment of status or apply for an immigrant visa at a U.S. Consulate abroad, depending on the category they fall into.
The main focus of the I-130 petition process is to document the relationship. In most cases, as in the case of parents and children, a birth certificate or secondary evidence of parentage will suffice. The same goes for the siblings of U.S. Citizens, who will each have to provide a birth certificate to show that they share at least one parent. In the case of spouses, additional evidence will need to be submitted to document not only that the marriage is legal (i.e., a marriage certificate) but also evidence that the marriage is bona fide (i.e., evidence that the marriage was not entered into for the sole purpose of gaining immigration benefits).
3.File the I-130 at the Correct Lockbox or other USCIS facility
Generally, the U.S. Citizen or legal permanent resident filing for his/her family member must file the I-130 petition with any required and supporting documents and the filing fee with the USCIS Chicago or Phoenix lockbox, depending on where the U.S. relative resides.
Note: In the case of a U.S. Citizen or legal permanent resident filing for his or her spouse, the Form I-130 must be accompanied by a Form G-325A, Biographic Information for both the U.S. spouse and the foreign national spouse.
My Case Scenario
Jake, a U.S. Citizen, filed an I-130 petition on behalf of his brother John, an Australian national about 10 years ago in the F4 category (siblings of US Citizens). John is in now in the U.S. in H-1B status. Jake and John just found out that a visa number is about to become available for those who filed on or before the date that Jake filed the I-130. Can John file an Adjustment of Status (AOS) application? Can his wife and kids (all under 21) who are in the U.S. in H-4 status file
Yes. Since John is in the U.S. in lawful status (H-1B) and presumably has maintained his status, he can file an AOS application as soon as visa numbers become available (his “priority date becomes current”). Also, as John’s wife and kids are derivative beneficiaries of his I-130 filed by Jake, they can each file an Adjustment of Status application as well.
Step 2: The Adjustment of Status Process And The Adjustment of Status Interview
1.Form I-485 and Required Documents
Adjustment of Status or “AOS” is the process by which an eligible foreign national who is physically present in the United States can obtain permanent resident status (a Green Card) without having to return to their home country to complete immigrant visa processing at a U.S. Consulate. The term for a change to permanent resident status while in the U.S. is called “adjustment of status.”
The Form I-485, Application to Register Permanent Residence or Adjust Status, is the only form that applicants in the U.S. can use to adjust status to that of permanent resident status. This application, along with certain other applications (see below) and initial evidence must be filed by the foreign national relative in order to gain legal permanent resident status. Please note that there is an additional filing fee associated with the AOS application in addition to the I-130 filing fee.
Note: Each family member must submit his or her own application even if the family members are derivative beneficiaries (the spouse or children of the main beneficiary of the immigrant petition). This means that if the a US Citizen sponsored his brother by filing a Form I-130, his wife and children would each need a separate I-485 if eligible to file an AOS application.
Some derivative beneficiaries of a family petition may not be able to adjust with the rest of the family because he or she has turned 21 years of age or will turn 21 by the time a visa number becomes available. These individuals may be in the U.S. in a status that is dependent on one of their parents. It is important these individuals plan ahead and establish their own independent visa status in order to remain in the U.S.
In order for a foreign national relative who is in the U.S. to file the AOS application, he or she must:
- Have a visa number immediately available;
- Have entered the country and have been inspected;
- Be in lawful status at the time the AOS application is filed.
There are limited exceptions to the 2nd and 3rd requirement. Two of the most common exceptions are:
a.Immediate Relatives of U.S. Citizens
Immediate Relatives of U.S. Citizens (spouse, parents and/or children under 21) can generally apply for AOS even if they are not in lawful status at the time the application is filed. It is still required that the foreign national relative had made a valid entry with inspection in order to adjust.
In Juan’s case, his wife entered the U.S. using a tourist visa and was inspected on entry but she overstayed her visitor visa. This overstay would normally make her ineligible to file for AOS. Once Juan becomes a U.S. Citizen, however, she should be able to file an Adjustment of Status application to become a legal permanent resident because she would become an Immediate Relative of a U.S. Citizen.
b.Statutory exceptions to requirement for “lawful entry” or maintenance of status
Certain individuals who entered the U.S. without inspection (“entered without inspection” or “EWI”) and/or have not maintained lawful status in the U.S. may be eligible to adjust status if they qualify for a statutory exception.
Along with the Form I-485, each applicant must also submit:
i.Proof of the pending or approved I-130 (unless filed concurrently- see below);
ii.Copies of civil documents including birth certificate, marriage certificate(s), divorce certificate(s), and any other official documents depending on the type of relationship the application is based on;
iii.Proof of lawful entry (usually a copy of the Form I-94, Arrival-Departure record) and/or entry stamp in the passport (or proof that they qualify for an exception);
iv.Proof of lawful maintenance of status (or proof that they qualify for an exception);
v.Dispositions of Convictions or any other documentation regarding arrests and/or convictions
2.Affidavit of Support
When filing the AOS application, the U.S. relative must establish the ability to financially support the foreign relative by filling in Form I-864 and submitting the appropriate supporting documents. If the petitioner is unable to support the relative financially, financial support can also be shown by showing the financial resources of other individuals in the household, through a co-sponsor or, in some instances, the assets of the foreign relative applicant. For more information on the Affidavit of Support, please click here.
3.I-130 and I-485 Concurrent Filing
If an immigrant visa number is immediately available, as is the case for Immediate Relatives of US Citizens, then the I-130 and the I-485 can be “concurrently” filed, meaning, they can be filed together.
It is rare that the other categories of family-based Green Cards are not over-subscribed allowing applicants to concurrently file. However, if at the time of filing the I-130 the Visa Bulletin shows that the immigrant visas are available in these other categories (shows “C” for current), then an I-130 and I-485 can be concurrently filed.
Furthermore, in these other family-based categories, if an immigrant visa number does become available after the I-130 filing but before the approval, an I-485 can be filed at that time. It’s important to remember that for all family-based categories except Immediate Relatives of U.S. citizens, the foreign national family member must be in lawful status in order to file an AOS application (see above).
Once Juan becomes a U.S. Citizen, his wife will be an Immediate Relative of a US Citizen and there will be no visa quotas that apply to her. Juan and his wife have two choices:
- File Concurrently: Juan can wait until he becomes a U.S. citizen to file the I-130 and his wife can concurrently file her I-485 AOS application.
- File Separately: Juan can file an I-130 on his wife’s behalf in the F2A category now while he is still a Legal Permanent Resident. Once he becomes a US citizen, his wife can file her I-485 AOS application based on the already filed I-130 because now she is eligible as an Immediate Relative of a US Citizen. She cannot file an AOS before Juan becomes a US Citizen, even if her priority date becomes current, because she did not maintain lawful status
4.Employment Authorization and Advance Parole
Applicants for AOS may also file applications to obtain work authorization (Form I-765) and permission to travel (advance parole, Form I-131) while they await issuance of the Green Card. Generally, most applicants can and should file the applications together with the AOS.
Note: Generally, if the I-765 and I-131 are submitted concurrently with the AOS application, the advance parole and travel permit will be issued together on one document. This means that the card that the AOS applicant receives from USCIS will be valid for both work and travel. USCIS can still issue a separate advance parole document in certain circumstances.
The Form I-765 is the application for the Employment Authorization Document (EAD) card or the work permit. The EAD card allows the foreign national relative to accept employment in the U.S. from any employer for any type of employment. The foreign national will not be authorized to work in the U.S. until the EAD card is issued or until he or she receives the Green Card (unless he or she has another visa status that authorizes employment like H-1B, L-1, O-1, etc.). The card is generally valid for 1 year from the date of issuance and is renewable until the AOS application is adjudicated (Green Card is issued or denied).
Additionally, the EAD card allows individuals to apply for a Social Security Number if they have not otherwise obtained one previously.
b.Form I-131, Application for Travel Document (Travel Permit)
The Application for Travel Document or “Advance Parole” is the application for permission to re-enter the U.S. after international travel. It is important to remember that once the AOS is filed, the applicant risks abandoning the entire AOS application if he or she travels abroad without an approved Advance Parole document.
Note: An exception has been carved out for individuals in H-1B, L-1 or K-3 status. These individuals may continue to travel on their nonimmigrant visas even after filing an AOS and do not have to wait for an AP to be approved. It is important that these individuals are maintaining their nonimmigrant status.
Please note that if an emergency does arise which requires the foreign national spouse to travel abroad before issuance of the travel permit, there are processes in place at USCIS Field Offices and Service Centers to issue expedited and emergency travel documents.
Note: When granting AP, USCIS does not evaluate the applicant’s eligibility to travel. What this means is that USCIS’ grant of AP does not mean it is necessarily safe for you to travel abroad. Those with long periods of unlawful presence or unauthorized stay may be subject to the three or ten year bars. The bar is not triggered until the travel occurs. While a recent BIA decision states that travel on AP should not trigger the bars, it is in the applicant’s best interest to seek legal counsel before traveling if he or she has been in the U.S. unlawfully for any period of time.
Form I-693 Medical Examination Sheet must be submitted to USCIS with the AOS application. A medical examination is a necessary part of the application for adjustment of status to determine if a health-related ground for denial of admission exists and to determine if the applicant has received all the required vaccinations. The applicant must arrange a medical examination with a doctor or “civil surgeon” designated by USCIS.
Note: The completed Form I-693 must be submitted in an envelope sealed by the civil surgeon and cannot be opened by anyone except the examining officer at USCIS.
Shortly after submitting the I-485 application package, applicants will be scheduled for “Biometrics” at an Application Support Center where his or her fingerprints and photos will be taken in order to run the requisite background checks. Once the biometrics has been completed, the applicant will have to wait for the background checks to be completed before they are scheduled for a final adjustment of status interview. Applicants younger than 14 and older than 75 will not be fingerprinted.
7.The Adjustment of Status Interview
Once the fingerprinting is done and the background checks are completed, the applicant will likely have to appear for a personal interview. The interview will be with a USCIS Adjudications Officer and will be held at a USCIS field office having jurisdiction over the applicant’s residence as listed on the I-485. USCIS will send each applicant an appointment notice, usually about 2-4 weeks in advance of the interview. Generally, the U.S. citizen or legal permanent resident family member who filed the I-130 is also required to attend the interview.
Note: An interview is required for all AOS applicants; however, USCIS has the discretion to waive this requirement for some applicants. Generally, those whose AOS applications may be approved without interview include Unmarried minor children of US Citizens, parents of US Citizens and Unmarried children under 14 of Legal Permanent Residents. However, an interview is almost always required if the applicant entered EWI or qualifies for § 245(i) exception.
For most Green Card applicants, the USCIS interview is the most nerve-wracking part of the entire process. In the case of most relative petitions, the interview is primarily to verify the authenticity of the documents submitted and to make sure that the applicant is eligible to become a legal permanent resident.
In cases where the application is based on marriage, the officer will also ask questions to ascertain whether or not the marriage is actually bona fide or real. This is especially true in cases where the marriage is relatively short in duration or where there has been a long separation, physically, between the spouses.
It is very important that each AOS applicant be thoroughly prepared for the interview. The applicant should review a copy of all the application forms that have been submitted. Applicants must bring with them their passport, the original of the documents listed above and any other documents requested by the Field Office.
Note: Applicants should bring with them evidence that the relationship between the U.S. relative and the applicant has been maintained. This is especially true of spouses of U.S. relatives.
Step 3: After The I-130 And Adjustment of Status Are Approved
1.The Green Card
Customarily, the Green Card arrives within a few weeks of the USCIS interview. The Green Card is sent to the address provided on the Form I-485. If the Green Card does not arrive within 3-4 weeks of the interview, check the USCIS Case Processing Online to check the status of the application. If the I-485 has been approved, it is best to contact USCIS to see if the Green Card has been returned as undeliverable. The U.S. Postal Service will not forward the Green Card if the mail-to address has changed.
If the Green Card is lost/doesn’t arrive and a replacement must be ordered, then the new legal permanent resident may make an InfoPass Appointment at the local Field Office to request a temporary I-551 Stamp that will be valid for 1 year.
2.Derivative Beneficiaries who are abroad
If the derivative beneficiaries of an I-130 Petition who are eligible for a Green Card were not in the U.S. to adjust status, they are still eligible to obtain a Green Card or “follow to join”. The primary beneficiary will need to submit Form I-824, Application for Action on an Approval Application or Petition upon receipt of the Green Card (in some instances, it can be submitted at the AOS interview) so that USCIS can inform the National Visa Center to process the Green Card applications of the derivative beneficiaries.
Obtaining Legal Permanent Residency is a privilege, not a right. Upon gaining legal permanent resident status, the foreign national relative should seek to establish their home in the U.S. Further, they should become familiar with how they can lose their legal permanent resident status. To learn more about how to maintain legal permanent resident status, click here.
4.Removal of Conditions
Spouses of U.S. Citizens or legal permanent residents who obtain immigrant visas through the I-130 process are given “conditional resident” status if their marriage was less than 2 years old on the date of the issuance of permanent residence (the date they entered the U.S.). The same is also true for step-children of the U.S. Citizen or legal permanent resident. These individuals receive a Green Card that is only valid for 2 years. In the 90 days preceding the expiration of the Green Card, these individuals must apply to “Remove the Conditions.” To learn more about Removal of Conditions please click here.
5.Naturalization and U.S. Citizenship
Most LPR’s can apply for U.S. Citizenship after 5 years. Those married to U.S. Citizens can apply after only 3 years. For more information on how to become a naturalized U.S. Citizen, please click here.
Once Juan is a US citizen he can petition for his spouse to become a legal permanent resident without having her go back to her country of residence to complete the process at a U.S. Consulate. As she is currently in the U.S. and entered the U.S. on a visitor (tourist) visa, Juan will be able to file the I-130 concurrently with her I-485 in the U.S. once he becomes a U.S. citizen. However, it is important for Juan’s wife to establish that she legally entered the U.S.
The Adjustment of Status process allows eligible foreign national relatives of U.S. Citizens and Green Card holders, who are physically present in the U.S., to obtain a Green Card without having to return to their home country to complete Immigrant Visa processing outside the U.S. While many can be reunited with their U.S. relatives in a matter of months, the process can be quite complicated and can actually keep families separated for very long if the right steps are not taken during the I-130 or Adjustment of Status process.
VisaPro attorneys successfully help U.S. Citizens, Green Card holders, and their foreign national relatives through the I-130 and Adjustment of Status process.
Contact VisaPro if you are a U.S. Citizen or Green Card holder, intending to bring your family to the U.S. Our experienced attorneys will be happy to assist you.
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