Last week, I discussed how family relationships might qualify foreign nationals for legal status in the United States. In this post I will discuss the mechanics of the application process. A qualifying relative can either consular process overseas or adjust status here in the United States depending on his/her location and circumstance. If a person qualifies as an immediate relative, i.e. spouse, minor child or parent, is located in the United States, and entered the United States through legal inspection and admission, and then he/she can generally obtain a Green Card or permanent residence status while remaining in the United States. If the qualifying relative is located outside of the United States, or if the qualifying relative is in a preference category, then he/she must process through the Consulate at the U.S Embassy in a foreign country.
Both an adjustment of status and a consular processing immigration case begins with an application to the USCIS to prove the qualifying relationship. The U.S. Citizen, or Legal Permanent Resident (LPR) who files the I-130 Petition for Alien Relative is called the Petitioner. The qualifying relative who will receive the immigrant visa is called the Beneficiary. On the I-130, the Petitioner designates a U.S. Consulate where the Beneficiary will consular process, or if the Beneficiary is an immediate relative residing in the United States, the Petitioner designates USCIS office where he/she will adjust status. When filing an application for a spouse, both the Petitioner and Beneficiary must complete a G-325A biographic information form. Included with the application is supporting documentation to prove the family relationship. The USCIS has very specific criteria for evaluating the family relationship, and it is therefore recommended that you seek a qualified immigration attorney to guide you through this process. Birth certificates, marriage certificates, divorce judgments from all previous marriages and various other documentation is required in all cases. When petitioning for a husband or wife, evidence must be provided to prove a bona fide marriage. If the USCIS is not satisfied with the evidence submitted, the Service issues a Request for Evidence, (RFE) and the application will be placed on hold until immigration officials receive and evaluate all information requested. An RFE can hold up an application for months, and an immigration attorney should be consulted for any RFE requests you don’t fully understand.
If the beneficiary is adjusting status in the United States, then the I-130 can be filed simultaneously with the I-485 Application to Adjust Status to Permanent Resident and application for an Employment Authorization Document (EAD). An interview takes place at the local USCIS district office and both I-130 and I-485 applications are adjudicated at that time. If the Beneficiary is Consular Processing however, he/she must wait for an approval on the I-130 application before proceeding to the next application step. This includes submitting a Department of State application, and the Affidavit of Support to the National Visa Center. If sufficient evidence was supplied to warrant further processing, the Beneficiary is scheduled to appear for an interview at the Consulate. If approved the Beneficiary receives an immigrate stamp in his/her passport and is conferred Legal Permanent Resident status once he/she is admitted to the United States.