Immigrant Visas & “Green Cards”

Consular Processing and Adjustment of Status

Obtaining permanent residence in the United States through employment or family- based immigration requires successful completion of a multi-stage process subject to strictly defined substantive criteria, confusing bureaucratic regulatory procedures, and lengthy government processing delays.  In most employment-based cases, after the Department of Labor has issued a certification that no qualified American workers were available for the position offered (“labor certification”), the sponsoring employer must  file an immigrant preference petition with US Citizenship and Immigration Services (“USCIS”) on behalf of the foreign worker it wishes to employ.  Only after approval may the employee and any dependent family members file applications for “adjustment of status,” with USCIS or for immigrant visas at a consular office abroad.

Similarly, in family-based cases, a sponsoring relative must first file an immigrant petition on behalf of his or her qualifying family member(s) before those member(s) may apply for immigrant visas or for adjustment of status.  Under limited circumstances in both employment and family cases, the immigrant petition and application for adjustment of status may be filed “concurrently” but not always.

As part of a series of informal memos we have prepared for our clients and friends explaining basic immigration and visa-related concepts, this edition of Hill’s VisaNotes discusses the specific requirements and procedures that must be followed in the last stage of the permanent residence process: visa processing at an American Consulate or adjustment of status at USCIS. The labor certification process and various employment-based immigrant preference categories are discussed in separate editions.

Applying for an Immigrant Visa – Consular Processing

Consular processing is the government’s preferred venue for completion of the process of obtaining lawful permanent residence after the approval of an employer’s Petition for Immigrant Worker, Form I-140, or a qualifying family member’s Petition for Alien Relative, Form I-130.   The consular process is administered by the U.S. Department of State (“DOS”) through its National Visa Center (“NVC”) and is conducted by officials at an American Consulate in the applicant’s home country or country of last residence overseas. It generally takes up to nine months after a “visa number” is available under applicable annual quotas to obtain permanent residence through consular processing.

NVC Screening

If the applicant selects consular processing, the NVC will notify the appropriate consular office and initiate visa processing by sending the applicant(s) and/or counsel “Instructions for Immigrant Visa Applicants” (formerly, Packet III) documents for completion. Some consulates combine processing of Instructions for Immigrant Visa Applicants and “Appointment Package for Immigrant Visa Applicants” (formerly, Packet IV) (see below), and in rare cases a consulate may process the application without formal notification by NVC.

Upon payment of the appropriate visa application fees, obtaining all necessary supporting documents for each family member, and subsequently returning the Instructions for Immigrant Visa Applicants forms, the applicant will receive an Appointment Package for Immigrant Visa Applicants for completion and will be scheduled for an interview at the consular post. No interviews are scheduled until the applicant has secured all required documents.

The Visa Interview

The length of time necessary to schedule the interview varies greatly, depending upon the particular consular post. Generally, it will take about three months to secure the interview after all documents have been secured. The consular post usually informs counsel of the interview date four weeks in advance of the interview.  Once the consular post schedules the interview, the applicant should be prepared to travel to the designated country for the scheduled interview.  Processing of the application can take from a few days to two weeks, including the required medical examination, so the applicant and any accompanying dependent family members should be prepared to stay overseas for the necessary length of time.

Once the consular post completes the interview and grants the approval, it will issue an immigrant visa.  The applicant and all dependent family members, if applicable, must then travel to the United States within six months and seek admission to enter as permanent residents.  All documents issued by the consul are presented to immigration or customs inspectors at the port of entry at the time of arrival.  Upon entry, the inspector will place “I-551” stamps in the passports of the applicant and family members indicating that they have been admitted as lawful permanent – or, in the case of certain immediate relative spouses of US citizens, “conditional” – residents of the United States. International travel and employment are both authorized by the I-551 stamp during the validity period of the stamp, normally one year, while the actual “green card” is being processed at an USCIS card facility.

Maintenance of Status and Travel Abroad

Applicants for consular processing must maintain their nonimmigrant visa status until their consular interview abroad. If the applicant’s current nonimmigrant visa status will expire before immigrant visa applications can be completed and he/she is no longer eligible for an extension, counsel will advise in most cases that the applicant change his status to another appropriate work authorized visa category or apply for adjustment of status through USCIS.  This will allow the employee to remain employment authorized and continue to travel overseas and reenter the U.S.  In some cases, the applicant may be eligible for a yearly extension of his or her current status, provided that certain criteria are met.

Documentary Requirements

Applicants for consular processing must provide more documents than adjustment for status applicants, including police “certificates” or “clearances” and military records.

Work Authorization for Dependents

Family members of consular processing applicants are not eligible to apply for work authorization while waiting for the final consular interview abroad unless they are in valid L-2 or E-1/E-2 dependent status.

 

Applying for Adjustment of Status at USCIS

The Application Process

If the applicant for permanent residence chooses to adjust status in the United States instead of consular processing abroad, he or she will file an Application to Register Permanent Residence or Adjust Status, Form I-485, with the appropriate USCIS Service Center or Field Office, in which case the applicant must be physically present in the United States at the time of filing.  Recent changes in immigration law permit concurrent filing of an application for adjustment of status with an employer’s petition for immigrant worker in visa categories not subject to annual quota backlogs, thereby reducing the overall processing time for qualifying applicants who opt to adjust status in the U.S.  A similar “one step” process is available to qualifying family-based immigrant applicants in specific categories or circumstances.

Fingerprints and Biometrics

Once USCIS reviews the initial application, a notice to appear at a local USCIS Application Support Center (“ASC”) for fingerprints and biometrics will be mailed to the applicant.  After fingerprints are submitted and all necessary FBI and security clearances are completed, USCIS will continue to process the adjustment of status application. At the end of the process, USCIS will mail an interview notice or an approval notice to the applicant.  Although a personal interview can be waived in most employment-based cases, it will be required for all applicants seeking permanent residence on the basis of qualifying family relationships.

If the applicant is scheduled for an interview, he or she and any accompanying family members must bring all original documents to the local USCIS District Office at the appointed time.  At the completion of the interview, the USCIS examiner will place I-551 stamps in the passports of the applicant and all dependent family members unless it is determined that additional information or documentation must be provided.

Travel and Work Authorization

While the application is pending, the applicant may be permitted to travel outside the United States on a valid unexpired visa, and may continue his or her authorized employment pursuant to his or her current visa status if applicable.  Adjustment applicants who are not in H-1B or L-I status must apply for advance permission to return to the United States prior to traveling abroad by filing an Application for Travel Document (Advance Parole), Form I-131, concurrently with his or her application for adjustment of status.  Without possession of this Advance Parole document prior to departure, USCIS will deem his or her adjustment application to have been abandoned.

Employment authorization is not incidental to parole status; therefore, an adjustment applicant must also secure an Employment Authorization Document (“EAD”) prior to departing the U.S. if he or she will return on an Advance Parole document rather than a valid nonimmigrant visa.  Family members are eligible to apply for EAD with their own adjustment applications.

Processing Time

Please note that USCIS Service Centers are taking approximately 6 to 12 months to process applications for adjustment of status to permanent residence.  For this reason, before proceeding with any applications, individuals seeking permanent residence in the United States should consider all options carefully in light of their own circumstances, including both adjustment of status and visa processing at a consular office abroad.

Waiver of Personal Interview

As indicated above, in certain employment-based permanent residence cases, USCIS may waive any personal interview for adjustment of status applicants and issue an approval notice by mail upon completion of their document review.

 

Lawyer Websites by AWebsiteForLawyers.com