Immigration Attorney

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IMMIGRANT VISAS

I.  GREEN CARD THROUGH RELATIVES

Immigration of foreigners to the United States is allowed based on their relationship with  US citizens or legal permanent residents.   Family based immigration is divided into two groups:  (1)  unlimited – with no numeric limit on it;  and (2) limited – has annual numeric limit.

U.S. citizens may petition for spouses, parents, children and siblings.

Permanent residents may petition for spouses and children.


VISAS WITH NO NUMERIC LIMIT:

Who are eligible?


1.  Spouses of US citizens;
2.  Widows/Widowers of US Citizens; must have been married to the deceased for at least two years and be widowed within two years of the application;
3.  Unmarried people under the age of 21 with at least one US citizen parent;
4.  Parents of US Citizens, if the citizen child is over the age of 21;
5.  Adopted children of US Citizens where the formal adopting relationship occurred before the child's 16th birthday;  and
6.  Stepchildren or stepparents of US Citizens where the family relationship began before the stepchild's 18th birthday

VISAS WITH ANNUAL NUMERIC LIMIT

Preference Immigrants:

1.  First Preference—Unmarried sons or daughters of U.S. citizens (i.e., those who are 21 years of age or older).

 2.   Second Preference

           a.  Spouses or children of aliens lawfully admitted for permanent residence; 21 or
           b.  Unmarried sons or daughters of aliens lawfully admitted for permanent residence.

3.  Third Preference—Married sons or daughters of citizens of the United States;  and          

4.    Fourth Preference—Brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age.

To determine priority dates for family based immigration, please go to http://travel.state.gov/visa.


II.  GREEN CARD THROUGH EMPLOYMENT

These are some of the ways to gain permanent residence through employment:

EB-2
Workers with Advanced Degrees or Exceptional Ability in the Sciences, Arts or Business


Aliens in this category normally must have a job offer and the potential employer must complete the labor certification process.  The labor certification process involves a testing of the job market to demonstrate that the potential visa holder is not taking a job away from a US worker.

In some cases where an individual can show that his entry is in the national interest, the job offer and the labor certification requirements can be waived.

EB-3
Skilled Workers and Professionals


Aliens in this category normally must have a job offer and the potential employer must complete the labor certification process.

In order to obtain permanent residency through the EB3 category, the applicant must have an employer willing to sponsor him or her through labor certification or PERM. The applicant does not have to be employed when labor certification/PERM is filed. A job offer is sufficient. Labor certification/PERM is the process whereby, the US government determines whether qualified US workers can fill the open position. Once the labor certification is approved, the employer may sponsor the applicant for permanent residency.

The EB3 process is as follows:

Step 1 -   Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual;

A labor certification is an official government finding that (1) no U.S. workers can be found, at the time of filing the application and in the geographic area where the job exists, who are available, willing, and able to fill the position; and (2) the individual’s employment will not "adversely affect" the wages and working conditions of similarly situated U.S. workers.   For a discussion of the new labor certification under PERM, please see the section on PERM.

Step 2 -  Immigrant Petition (I-140): Once the labor certification application is approved, the company files an immigrant petition with the USCIS.

An employer files an immigrant petition on behalf of an employee when the employer wishes to formally sponsor the employee for U.S. immigration. The petition is a formal offer of “permanent” employment (that is, employment of indefinite duration).

Step 3 - The employee would file an Adjustment of Status application to adjust your status to that of permanent resident (if in the U.S.) or consular process for an immigrant visa at a U.S. consulate (if outside of the U.S.).

The employee must wait until his or her “priority date” is current before he or she will be allowed to begin the third step of the immigration process. The priority date is the date the employee’s labor certification application was originally filed (generally, the date the application was received by the state employment security agency).

Adjustment of status:

Adjustment of status is a procedure allowing certain aliens already in the United States to apply for immigrant status. Aliens admitted to the United States in a nonimmigrant, refugee, or parolee category may have their status changed to that of lawful permanent resident if they are eligible to receive an immigrant visa and one is immediately available. In such cases, the alien is counted as an immigrant as of the date of adjustment, even though the alien may have been in the United States for an extended period of time.

A person applies for adjustment of status with the USCIS from within the US. Along with the adjustment form, results of a medical examination, an affidavit of support, if required, evidence of the approval for immigration and a copy of the applicant’s passport must be submitted. Evidence of any familial relationships must also be submitted, if family members are seeking to adjust their status with the principle applicant.

If the applicant wishes to work or travel abroad while the adjustment of status application is pending, additional forms must be filed. A person is work and travel authorized for only one year at a time, so in many cases, because of INS processing delays, the applicant must renew these documents.

Not all adjustment of status applicants are interviewed, although the law provides that any adjustment applicant may be interviewed. Interviews are always conducted in marriage cases, but are less frequent in other family relationships. Interviews are quite rare in employment-based cases.

After approval for adjustment of status, it takes some months before the physical green card is obtained. If the approval follows an interview, the INS will stamp the applicant’s passport with an indication that they are a US permanent resident. If there is no interview, the applicant will receive a notice that the application has been approved, which they can take to a local INS office and obtain the stamp. A few months later, they will receive the green card.

Consular Processing

In consular processing the applicant applies for and processes an immigrant visa at a US consulate abroad, most often in their home country. The applicant determines the desired method of processing at the time the initial petition for classification as an immigrant is filed.

In consular processing, USCI forwards the approved immigrant petition to the National Visa Center (NVC), which is part of the State Department.  When an immigrant visa number becomes available, the NVC generates a collection of documents known as Packet 3. Packet 3 includes the State Department form for applying for an immigrant visa, an affidavit of support, which must be filed in all family cases and in some employment-based cases, and instructions on the process.

The applicant must complete the forms and return them to the appropriate consulate. The applicant must also gather documentation, including a passport, birth certificates, police certificates, court and prison records if relevant, military records if relevant, and marriage and divorce certificates for each person immigrating. Upon receipt of the forms and notification that the applicant has obtained all necessary documentation, the consulate will issue what is known as Packet 4. Packet 4 includes the time for the visa interview appointment, as well as information on obtaining the required medical examination.

If the application is approved, the person will be issued an immigrant visa, which is good for only six months. If the person does not enter the US within that period of time, the visa will expire and the opportunity to immigrate will be lost.

If the application is denied, the consular officer at the post reviews it. If the officer desires, he can get a second opinion from the State Department. However, if, after this point, the denial is upheld, there is no recourse for the applicant.

Consular processing was once the only way to obtain an immigrant visa, as there was no adjustment of status process.  When adjustment of status was created, it became tremendously popular, due in large part to the reentry bars that were created in 1996. However, as USCIS backlogs have grown longer and longer, more and more people are looking at consular processing to speed the process.




                                                Mara Victoria Magpantay