Family based immigration october 2012

Family Based Immigration and Adjustment of Status

Charina P. Garcia and Melissa Harms

Permanent Residency Flowchart: 4 Steps

File I-130 Immigrant Visa Petition

Wait for Visa Availability

Adjustment of Status (I-485)

EAD/AP

Consular Processing

Interview Scheduled at U.S. Consulate/Embassy

© 2012 CPG Immigration Law Group

Immigrant Visa Preference System

Immediate Relatives: Spouse, parent and minor unmarried children (under 21) of U.S. citizen – no visa wait

Preference Categories: Visa wait


Preference Categories Definitions

1st Preference Unmarried Sons and Daughters of U.S. Citizens

2nd Preference A Spouses and Children of Permanent Residents

2nd Preference B Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents

3rd Preference Married Sons and Daughters of U.S. Citizens

4th Preference Brothers and Sisters of Adult U.S. Citizens

Family Visa Processing

THREE steps to the process—

1. File Immigrant Relative Petition (I-130) to establish relationship

2. Wait for Visa Availability based on Priority Dates

3. Interview


I-130 Petition

Form I-130 is preliminary step to obtaining Lawful Permanent Residency

(LPR) status

Filing Form I-130 does not grant the beneficiary “status”

Must maintain valid status (i.e. F-1) while waiting for visa to become

available

I-130 is where USC or LPR relative sponsors the beneficiary for immigrant

visa

Beneficiary must have a sponsor unless eligible for self-petition (spouses of

deceased citizens and battered spouses and children)

Once found qualified in a preference category, sponsored relative can apply

for LPR status either through adjustment of status (AOS) or consular

processing © 2012 CPG Immigration Law Group

Immigrant Visa Quota

Published monthly by the Department of State (www.travel.state.gov)

Annual limit of 226,000 per INA §201 with no more than 2802 per country, per category

Chargeability: Determined by country of birth for applicant or spouse

Each month Department of State determines how many immigrant visas were used worldwide and publishes a “cut-off date” in the Visa Bulletin

Backlogs occur when the number of immigrant visas filed exceeds the number of immigrant visas available

Previously current dates on the Visa Bulletin may go backwards, or categories may become “Unavailable”


November 2012 Visa Bulletin

Priority Date is the date I-130 was filed with the USCIS

Country of Chargeability is applicant or spouse’s country of birth

Family-Based All Other Chargeability Areas Except Those Listed

China India Mexico Philippines

1st 01NOV05 01NOV05 01NOV05 22JUN93 01JUL97

2nd A 15JUL10 15JUL10 15JUL10 22JUN10 15JUL10

2nd B 08OCT04 08OCT04 08OCT04 15OCT92 15FEB02

3rd 01JUN02 01JUN02 01JUN02 15FEB93 22JUL92

4th 22MAR01 15MAR01 22MAR01 08JUL96 01MAR89


I-485 or Consular Processing

Beneficiaries can file for AOS or Consular processing only when a visa is available– When preference category and country of chargeability in Visa Bulletin is “Current,” or– When cut-off date in Visa Bulletin for preference category and country of chargeability is on or

before the Priority Date

CONSULAR PROCESSING If consular processing, National Visa Center will issue documents needed for immigrant visa

interview overseas

Once Priority Date is current, U.S. consulate will schedule interview

ADJUSTMENT OF STATUS (I-485) Once Priority Date is current, submit I-485 with USCIS: Note: Immediate Relatives do not have to

worry about Priority Date so can file I-130 and I-485 concurrently

Apply for work permit and travel permit for spouse and children under 21 – work permit valid for 1 year

Can be approved in 4 – 6 months if visa available current


I-485: Adjustment of Status

Changing from non-immigrant status or undocumented status to LPR in the United States

Requires application on Form I-485 with USCIS

Must be physically present in the U.S. at the time of filing and have been “inspected and admitted” or “paroled”

The “Priority Date” of the underlying visa petition (I-130) must be current

Can file I-130 and I-485 concurrently if Immediate Relative


Persons Precluded From Adjustment of Status

Unlawfully employed (except immediate relatives)

Violated status (except immediate relatives)

Visa waiver entry (with exception for political asylum and immediate relatives)

Crewmen or aliens in transit

K-1 fiancé/fiancées who did not marry petitioner within 90 days of entry


Adjustment of Status Benefits: Employment and Travel

Employment authorization (EAD) and advance parole (travel authorization) are available for pending adjustment applicants

EAD: Issued in 60 – 90 days; interim available if > 90 day processing

H-1B, H-4, L-1 or L-2 are not required to obtain advance parole prior to travel

3 and 10 year bars: 3 year bar triggered if overstay 6 months and depart US; 10 year bar triggered if overstay 1 year and depart US

Advance parole travel document must be obtained prior to departure: 60 –90 days for processing


Affidavit of Support: Form I-864

Contract between the Petitioner and Joint Sponsors with the government to ensure repayment of public benefit (i.e. welfare)

If the Beneficiary is applying for Adjustment of Status, the I-864 is submitted with Form I-485

If the Beneficiary is Consular Processing, the I-864 is submitted to the National Visa Center with application

All Petitioners must file an Affidavit of Support, even if they have no income.


Fees for Adjustment of Status

Form I-130: $420

Form I-485: $1070 - includes I-485, I-765 (work permit), I-131 (travel permit), and biometrics

Attorney Fees: range from $2,500-$3,500 for immediate relative adjustment of status case and usually include representation at interview.


Adjustment of Status Timeline

File I-485 and accompanying applications (I-765, I-131, I-864) with National Benefits Center (immediate relative can also file Form I-130)

Attends biometrics appointment 4-6 weeks after filing

EAD and Advanced Parole generally 60-90 days

Interview scheduled within 4 months of filing

Green card arrives 2-4 weeks later via mail


Role of the Attorney in the Process

Review immigration history at outset to determine eligibility, filing deadlines

Prepare all forms, assemble supporting documents and files application

Track processing of application

Prepare client for interview and attend interview with client

Follow up with USCIS officer regarding outstanding issues, if any, after interview

Ensure client receives green card timely


What to Expect at the Adjustment of Status Interview

For marriage based cases, must prove the marriage is bona fide (joint ownership of home, assets, pictures together and with family, children, etc.)

Investigate other ground of inadmissibility

Past immigration violations

Lawful entry

View original marriage, birth documents for authenticity

Review affidavit of support documents for sufficiency


Consular Processing: Who Uses It?

Beneficiaries residing overseas

Petitioners residing overseas

Those who have failed to maintain valid nonimmigrant status and are not eligible for adjustment of status


Consular Processing: How It Works

USCIS approves the Form I-130 and sends file to the National Visa Center (NVC)

NVC will send Petitioner (or attorney) first packet when priority date is almost current

NVC processes documents and then schedules interview and forwards application to the US Embassy/Consulate

Interview

Immigrant visa issued in passport with six month validity

Enter U.S. and green card mailed within 2 – 4 weeks


Marriage Petitions

Must prove bona fides of marriage — Applicant’s burden

Marriage fraud bars approval of ANY future petition for alien

Apply law of place of marriage/divorce

If marriage less than 2 years when green card issued, green card is conditional for 2 years


Conditional Residence

If married less than two years at time of entry/adjustment, spouses (& certain stepchildren) awarded Conditional Permanent Residence (CPR)

Same as “regular” LPR but expires 2 years after green card granted (not 2 year wedding anniversary)

Must file Form I-751 petition to “remove conditions” on or before expiration of status

Status automatically extended until decision is made on I-751 application

Late filing OK, but must state reasons at time of filing, or will be rejected

If marriage deteriorates before 2 years, can still keep green card if can show marriage was bona fide and qualify for waiver


F-1/M-1/J-1 and the Permanent Residency Process

F-1/J-1 require strict non-immigrant intent: Filing I-130 establishes immigrant intent

DSOs should not terminate SEVIS record if student maintaining F-1 status

Recommend maintaining F-1 status while AOS is pending

No travel after I-130 filed unless using advance parole

Timing of AOS filing is very important: Recommend 60 days after F-1 entry to avoid presumption of immigrant intent

J-1 two year return requirement: Marriage to a US citizen does not excuse two year return requirement and must obtain necessary waivers


Citizenship Overview

LPR for 5 years and physical presence in the US for at least one-half of the 5 year period

Continuous residence in the US from the date of filing the naturalization application to the date of approval

Residence within the state where the application is filed for at least 3 months

Good moral character for the 5 year period

Registration for the draft if a male LPR between the ages of 18 and 26

Knowledge of US history and civics and fluency in English


Citizenship for Spouses of US Citizens

If married to, and living with a US citizen for 3 years may file for citizenship after 3 years as a LPR instead of 5

Must prove physical presence for one-half of 3 years (18 months)

Must prove continuous residence for one half of 3 years (18 months)

Must prove good moral character for the past 3 years


Citizenship Process

File N-400 with USCIS

Biometrics scheduled

Interview scheduled within 4 – 6 months

Oath taking ceremony scheduled within 30 – 60 days of initial interview

Apply for U.S. passport


Questions or Comments?

Melissa [email protected] Larkspur Landing Circle, Suite 199Larkspur, California 94939 415.945.9600 (Phone)415.651.9602 (Fax)415.

Charina P. [email protected]

Family based immigration october 2012

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