Welcome, What You Can Find in This Guide
Hi! My name is Giselle Ayala. I am the managing partner of G.A.M. Law Office P.C. Our law firm is based in New York, and from there we work we clients from all countries and backgrounds. I hope this guide gives the answer you are looking for!
I designed this guide to lay down the most common questions that applicants have when they start the preparation of an immigration petition.
I hope that understanding the process will make it easier for applicants to maneuver the complexities of the US immigration systems, when it comes to family green card petitions. On the other hand, for those who prefer to get legal counsel, this guide will be a great refence to know what to expect throughout the process.
An immigration petition is one of the most important legal matters that a person may go through. It involves the most important aspects of a people’s lives, their stability and their dreams of a happy life in a country different from where they were born.
If you have follow-up questions, feel free to reach out on Instagram (@GAMLawOffice) or on Youtube. I will be more than happy to answer your questions!
Giselle Ayala, Attorney at Law
Contents
Welcome, What You Can Find in This Guide. 1
The Family Green Card Petition. 5
Step 1: Submit the petition. 5
Step 2: USCIS makes a decision. 5
Step 3a: Green Card Application within the US. 5
Step 3b: Relatives in preference categories awaiting visa availability. 6
Step 3c: The Immigrant Visa Petition. 6
Step 4 a: The immigration interview with an USCIS officer 7
Step 4b: The immigration interview at the Consulate or Embassy. 7
Step 5a: Decision and Green Card Delivery. 7
Step 5b: Decision and Visa Packet in Consular Processing 7
Where should I get married?. 8
What do I do if I have documents in a language other than English?. 8
Do I need a lawyer for my interview with the immigration officer?. 8
What is the secret to a successful marriage green card petition?. 8
An overseas marriage is valid in the US?. 8
What happens if I marry after entry with a Tourist Visa? 9
What will happen if the marriage is entered into after a person is in proceedings?. 9
What is the main difference between Adjustment of Status and Consular Processing?. 9
Who Should Apply Through Consular Processing? 9
What is the Consular Processing Timeline?. 10
How can I check the status of my application?. 10
What if my application is rejected?. 11
Introduction
Many people in the United States, who have family members living in other countries, wonder if they can bring them to the U.S. Well, it is important to clarify that if an immigrant settles in the United States, he/she can only obtain green cards (permanent residence) for certain family members.
Those who can request a green card for their relatives are called “sponsors.” US citizens and permanent residents can act as a “sponsor” of certain family members.
- Immediate Relative: These visas are based on a direct family relationship with a U.S. citizen, such as a spouse, child, or parent.
- Family Preference: These visas are for specific more distant family relationships with a U.S. citizen and some specific relationships with a Lawful Permanent Resident (LPR).
- Immigrant Visa: It is a permanent visa that allows an alien to live and work permanently in the United States.
There are specific steps to take for a U.S. citizen or permanent resident to successfully complete an immigration petition for a relative.
The Family Green Card Petition
Step 1: Submit the petition
The first part of the process starts with the “Petition for Alien Relative.” A US citizen or permanent resident mails an eligibility petition to USCIS using Form I-130, along with supporting documents. The supporting documents demonstrate that both the Petitioner (US citizen or resident) and the Applicant (the future immigrant) meet the requirements of the law, among others, that their family relationship is real.
Step 2: USCIS makes a decision
When USCIS receives the petition, it assigns an immigration officer to the case, to consider whether to approve or deny the application. After the first part is approved, the next step depends on whether the applicant wants to complete his/her process within the United States or, whether the applicant must complete it the process outside the U.S.
If a person must leave the United States to complete the process, once the I-130 petition is approved, the case file will be sent to the National Visa Center for further processing. If the petition is denied, the petitioner may file a new petition after determining what changes need to be made to promote approval.
Step 3a: Green Card Application within the US.
The application to obtain a green card and permanent residence within the United State is called Adjustment of Status. Certain individuals who are physically present in the United States and who have entered the United States legally, with a visa, can adjust their status without leaving.
An application for adjustment of status generally includes a packet of forms and supporting documents that include:
- Form I-485, Application to Register Permanent Residence or Adjust Status
- Form I-864, Affidavit of Support
- Form I-693, Medical Examination Report and Immunization Record
- Form I-765, Application for Employment Authorization (optional)
- I-131, Application for travel document (optional)
Step 3b: Relatives in preference categories awaiting visa availability.
This step is only carried out if the applicant is in a Family Preference group, the applicant has been admitted or Paroled to the US, and the Applicant has maintained a lawful status.
When an applicant is in a Family Preference group, it means that the applicant must wait until his priority date is current, until USCIS is reviewing the petitions that were received on the date the applicant petition was received. To know if a priority date is current, the applicant must look at the Visa Bulletin every month.
If the applicant is not an immediate family member, the immigrant joins a waiting list and will generally wait at least a year before learning if a visa is available. Immediate relatives do not have to wait.
Step 3c: The Immigrant Visa Petition
If the applicant’s first petition (Step 1) has been approved, an immigrant visa is available (the Applicant is an immediate relative or the priority date is current), and the applicant will not or cannot petition for the green withing the United State, the applicant must complete a petition for an Immigrant Visa.
The petition for an immigrant visa starts online at the CEAC website, administered by the Department of State. The applicant will access online to complete form DS-260. This process is known as consular processing.
Together with form DS-260 the petitioner (aka “sponsor”) must complete an Affidavit of Support.
Step 4 a: The immigration interview with an USCIS officer
If the applicant is adjusting status, i.e., is applying for the green card withing the US, the next step is usually an interview with an USCIS officer.
However, if between the time the petition is received and the time of the interview USCIS sends a Request for Evidence (aka RFE) an immigration interview will not be scheduled until the RFE is properly answered.
Step 4b: The immigration interview at the Consulate or Embassy
If the applicant is doing consular processing the interview will be scheduled only when all documents have been submitted to the CEAC website and the Visa Fees have been paid. Before an interview is scheduled the applicant’s case is at the National Visa Center. This entity sends the applicant’s file to the corresponding consulate or embassy when all evidence and required documentation has been submitted.
If the applicant is the United States waiting for the Interview Date, the applicant should not leave the United States until a certain date for the interview has been provided.
Step 5a: Decision and Green Card Delivery
In adjustment of status petitions, after the interview with a USCIS officer, the officer usually mails the decision to the petitioner and the applicant within 20 days. Usually, if there is an issue, the immigration officer may express his/her concerns during the interview.
After the approval notice is mailed, the green card is delivered personally to the applicant within 45 to 60 days. The applicant must be present to receive the green card.
Step 5b: Decision and Visa Packet in Consular Processing
After the interview at the Consulate or the Embassy is completed, the applicant and the petitioner must wait for a decision by mail. After an approval decision, the applicant receives a white closed envelope which the applicant cannot open. This is called the Visa Packet.
The applicant must travel to the US and hand the Visa Packet to the Customs Patrol Border Officer. After that, the Green Card will be delivered personally to the address indicated in the DS-260 Form. This time, the applicant enters the US with a one-entry immigrant visa.
Frequently Asked Questions
Do I need a Fiancé visa?
Unless there are compelling reasons to apply for a fiancé visa, which should be discussed with an attorney, a fiancé visa can be expensive and generate unnecessary expenses. It is preferable to get married overseas and then to start the immigration process.
Where should I get married?
Unless a couple has been married for several years outside the United States, the best strategy is to marry in the United States.
What do I do if I have documents in a language other than English?
All documents must be translated into English. A certified translation must be submitted.
Do I need a lawyer for my interview with the immigration officer?
The presence of a lawyer at the interview with the immigration officer is not mandatory. However, the presence of the attorney can make a difference, especially in complex cases. If you decide to attend if a lawyer, always answer with the truth, state if you do not understand something or have questions, and do not forget to take with you both originals and copies of all documents already sent.
What is the secret to a successful marriage green card petition?
There is no secret! However, you can have a successful petition if the petition is well presented. A permanent resident or US citizen can apply for permanent residence for her/his spouse in the United States or can apply for an immigrant visa if the spouse is abroad.
The key to these petitions is to prove that the marriage is real, that is, at the time the marriage was entered, the couple had the real purpose of having a family and a life in the US. In other words, the marriage was not entered into to obtain an immigration benefit.
An overseas marriage is valid in the US?
A marriage abroad, that is legal in the jurisdiction where it took place, is generally recognized in the United States, unless there is a compelling reason not to recognize it, for example, because it is bigamy.
Do not get married for permanent residency! This act is fraudulent and criminal and will prevent you from fixing your situation in the United States in the future. In many cases, USCIS will find out and the beneficiary, if in the United States, will be placed in removal proceedings.
What happens if I marry after entry with a Tourist Visa?
If a non-immigrant acts in a manner that can be interpreted as contrary to the purpose of his/her visa, the individual can be charged with fraud. For instance, if a person enters the US with a tourist visa and marries a USC or permanent resident within the first 90 days, there will be a presumption of fraud.
What will happen if the marriage is entered into after a person is in proceedings?
Being in proceedings means that a person is charged by the Department of Homeland Security as deportable. If a US citizen or a permanent resident marries someone during their removal proceedings (after a Notice of Appearance has been issued and delivered, even if no court date has yet been set), the couple must demonstrate to a higher standard, with is convincing evidence, that the marriage was entered into in good faith (that it is not a sham to avoid deportation).
If the marriage has lasted less than 2 years, the applicant may be granted a two-year conditional green card.
What is the main difference between Adjustment of Status and Consular Processing?
Adjustment of Status if the process of applying for a green card from inside the United States. With consular processing, the applicant may have to wait in his home country until the US green card is approved.
Both consular processing and Adjustment of Status independent timelines, application forms, and costs, but the overall green card eligibility requirements are identical. Applicants should check which process fits their individual situation.
Who Should Apply Through Consular Processing?
Applicants living outside the United States must normally use consular processing to apply for a green card. However, immediate relatives who enter the US legally may apply for Adjustment of Status.
CR1 Versus IR1 Visas
When applying for a marriage green card via consular processing, the applicant will either receive a CR-1 visa or an IR-1 visa.
A CR1 visa is granted to applicants whose marriage is two years or shorter. A CR1 visa is followed by a two-year “conditional” green card. This means that after two years the conditions of the green card must be removed.
An IR-1 visa is issued when the petitioner and the beneficiary have been married more than two years at the time the application is filed. In this case, the green card is valid for 10 years without conditions.
What is the Consular Processing Timeline?
It is difficult to predict how long it would take from start to beginning a consular petition, especially because some procedures may change from one consulate to the other. However, in general terms a consular processing petition varies from 7.5 to 13.5 months if you are the spouse of a U.S. citizen and 13.5-35.5 months if you are the spouse of a lawful permanent resident.
How can I check the status of my application?
You can check for updates on your green card application by entering your case number on the USCIS website. You can find this number on any notices or receipts from USCIS.
When a petition is submitted to a US embassy or consulate, you can check your case status on the Consular Electronic Application Center website. However, keep in mind that if you are experiencing delays an attorney more than lay individual can get answers from the US authorities.
The Visa Bulletin
If you are in a family preference category, it is important to understand that an approved I-130 petition does not mean you may come to the United States immediately. The approved I-130 petition means that you have established your place in line for an immigrant visa, to come to the US and receive a Green Card, but it is not yet available.
The caps on family-based green cards are broken down into four primary “preference categories.”
- F1 (first preference): Unmarried adults (age 21 and over) who are children of U.S. citizens.
- F2 (second preference): Spouses and unmarried children of green card holders.
- F2A: Spouses and unmarried minor children (under age 21) of green card holders.
- F2B: Unmarried adult children (age 21 and over) of green card holders.
- F3 (third preference): Married children of U.S. citizens, regardless of age.
- F4 (fourth preference): Siblings of U.S. citizens.
Together with your category, you need to consider your priority date. It is your priority date which specifies your specific place in line. The waiting finishes when your priority date becomes “current,” i.e., the priority date now has an immigrant visa available to be claimed.
You will find your priority date in form I-797 Notice of Action (I-130 Approval Notice), it is the date when your petition was received. The priority date is in the top section of that document.
Once you know your priority date and your preference category, go to the Visa Bulletin. For purposes of Family-Sponsored Petition, consider a table similar to the sample below. You will need to find your family preference category and compare your priority date to the date listed. If your priority date comes before the date listed, your immigrant visa is current.
Finally, consider your country of nationality, there some delays from certain countries than others, specifically, China, India, Mexico, or Philippines.
What if my application is rejected?
Immigration and consular officers must follow strict guidelines and have little leeway to use their own judgement to reject green card applicants. However, let’s not lose sight of the fact that immigration petitions are discretional. Considering this, it is crucial to send a strong well supported petition, and address on time any issues.
It is also important to consider that, while Adjustment of Status applicants can appeal denials through USCIS or through the immigration courts, consular applicants do not have that option.
