Upload
nafsaregion12
View
619
Download
0
Embed Size (px)
Citation preview
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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”
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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.
© 2012 CPG Immigration Law Group
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.
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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
© 2012 CPG Immigration Law Group
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]