Family Immigration FAQ
As a US citizen you can file for many but not all of your family members. You can file an I-130 for the following relatives:
your spouse and their unmarried children under the age of 21;
your unmarried children under the age of 21;
your married or unmarried children over the age of 21;
your fiancé and their unmarried children under the age of 21;
your parents and your siblings if you are over the age of 21
Yes. A US citizen can obtain a green card for parents fairly quickly as members of the immediate relative category. For parents who are in the United States, the process involves filing and obtaining approval for an I-130 and I-485(adjustment of status). Parents who are outside of the United States, have to go through processing to obtain an immigrant visa after the I-130 is approved.
You can file a family based immigration petition for your Spouse and Unmarried children. Once there priority date is current, they can immigrate to the United States and obtain a green card.
The wait to obtain a green card will depend on three factors:
1. your immigration status
2. the relationship category that you and your family member fall under
3. your family member’s country of origin
Within the immigration system, “immediate relatives” of US citizens include spouses, unmarried minor children, and parents of US citizens if the petitioner is over the age of 21. If your family member falls under the immediate relative category, there is no waiting list because there is no cap or quota on the number of visas available each year. As such, a qualifying immediate relative could be able to obtain their green card within a relatively short period of time. To check the current processing times for the I-130 click here. After the I -130 is approved consular processing will take approximately 3-5 months. For more information on consular processing visit the Consular Processing Section of the US Department of State Website.
The family preference system is a quota system that limits the number of immigrants who come into the United States through a family relationship. Before immigrating to the United States and obtaining a green card, you need to determine if your priority date is current. For more information on the preference system, visit the USCIS website.
The family preference categories are as follows:
The F1A preference category includes unmarried sons or daughters (over the age of 21) of a U.S. Citizen Parent
The F2A preference category includes spouses or unmarried children (under 21) of lawful permanent residents(green card holders).
The F-2B preference category includes unmarried sons or daughters age 21 and over of lawful permanent residents(green card holders).
The F-3 preference category includes married sons and daughters of US Citizens
The F-4 preference category includes brothers and sisters of U.S. Citizens (Citizen must be at least 21)
The answer to this question depends on the preference category that relates to your family member. Your family member cannot adjust status to a lawful permanent resident classification or go through consular processing until a visa is available. The most current wait times can be found in the bulletin on the state department’s website at travel.state.gov.
No. The spouse and unmarried children will be considered “derivative beneficiaries.” Derivative beneficiaries cannot have a separate I-130 filed on their behalf. They may either accompany the principal beneficiary or “follow-to-join,” which means immigrating more than six months after the principal beneficiary.
Unfortunately no. The child of a Lawful Permanent Resident cannot marry without automatically revoking the I-130 petition that was filed on their behalf.
Probably. If your child was in the first preference category they will be converted to the third preference category upon getting married. However, they should be able to retain their original priority date. This situation would require additional legal analysis and the guidance of a knowledgeable immigration attorney.
The Child Status Protective Act allows the children of US citizens to preserve the status they held when their parent filed the I-130 petition. As such, under the law, they cannot “age out.”
The required documentation is listed in the instructions for the form I-130. This documentation is used to establish US citizenship, US national or US Lawful Permanent Resident Status and the familial relationship to the beneficiary. All documents in a foreign language must be accompanied by a translation along with a certification that the translation is accurate and the translator is competent to translate.
After the approval of the I-130, the next step will be to wait for a visa if the beneficiary falls within a preference category. Once the priority date is current, the beneficiary will be able to adjust status using form I-485 or go through consular processing unless there are bars to adjustment of status or entry into the US.
During a green card marriage interview, you can expect to get questions about the relationship such as: What are the names of your in-laws? What kind of furniture do you have in your living room? What bank do you use? Where did you meet? For more information, read our blog post about the green card interview process.
It is possible, but in most cases, USCIS will only schedule a marriage interview at the I-130 stage if they suspect fraud. USCIS may be suspicious of the marriage if:
there is a vast age difference between the parties;
the couples are not residing together or have never resided together;
they do not speak a common language or;
they have filed for legal separation
Since every case is unique, this is a decision that should be made after having a thorough discussion with your immigration lawyer. The first step when making this decision is evaluating eligibility for adjustment of status. If you do not qualify, you would have to go through consular processing.
To qualify for adjustment of status based on a petition for an immediate relative, the beneficiary/immigrating family member, must have been:
inspected and admitted or paroled into the United States or;
be eligible under 245(i) for adjustment of status based on a prior petition filed on the beneficiaries behalf before April 30,2001 and;
not be considered inadmissible for any other reason.
For a petition based on a preference category, the beneficiary, in order to qualify for adjustment of status must have been:
inspected and admitted or paroled into the United States and;
maintained lawful non immigrant status since admission, including no lawful nonimmigrant status since admission or;
be eligible under 245i and;
visa currently available and;
the beneficiary can not be inadmissible for any other reason
If you do not qualify for adjustment of status, you will apply at a US consulate for your visa. This process is commonly referred to as “consular processing.”
After a petitioner files an I-130 and the petition is approved, notice is sent to the petitioner and the approved petition is forwarded to the NVC (National Visa Center). Once the visa is “current” the NVC sends out an initial set of instructions informing the beneficiary that he or she may begin the consular processing stage. Once the required fees are paid, the applicant is instructed to go to the Department of State website where they can download and complete the required forms and gather the necessary documents. Once the required documents are sent to the NVC, the file is forwarded to the consular post and, in the majority of cases, the NVC will schedule a visa interview that will be conducted at the consular post.
The NVC requires the intending immigrant to send copies of civil documents and police certificates for the purpose of prescreening the applicant. The following documents are typically required:
A photocopy of the biographic data page of the applicant’s valid, unexpired passport;
A photocopy to the applicants birth certificate;
A photocopy of the marriage certificate;
Evidence of the termination of each prior marriage;
If the applicant served in the military, a copy of his or her military record;
If the applicant has been convicted of a crime, a copy of each court disposition;
A police certificate if the applicant is 16 or older
Approximately four to six weeks before the scheduled visa interview, the applicant will receive an appointment letter that contains the time, date and location of the interview. The appointment letter instructs the applicant to visit the DOS website for interview preparation guidance and to review consulate specific instructions. The website also provides information on the required medical examination and provides the applicant with important notices about the interview process.
Yes. All applicants for an immigrant visa must undergo a medical examination by an approved doctor. This examination is designed to screen for certain medical conditions that are relevant to the applicant’s admissibility to the United States. Following the medical examination, the physician will either forward the results directly to the consulate or will provide the result in a sealed envelope for the applicant to bring to the interview.
At the interview, the consular official will confirm the information that is on the form DS-260, screen for grounds for inadmissibility, review supporting documents, ensure that the medical exam does not reveal any problems that could prevent approval and consider if the applicant is likely to become a public charge. The officer may also ask questions that relate to the validity of the marriage that is the basis for the immigrant petition.
In order to go from green card to citizenship you have to meet a number of requirements.
You have to demonstrate that you have been in the United States for the required period of time. If you obtained your green card through marriage, you need to wait three years to apply for citizenship. If you obtained your green card in some other way, you need to wait five years before you can apply for citizenship.
Additionally, you need to show the following:
you are a person of good moral character;
that you have been in the country at least 30 months in the five year period before your application is filed;
you have not spent more than six months outside of the United States during the three or five year period;
you have paid your taxes;
you registered for the draft (if you are a male over the age of 18)
If you obtained your green card through marriage, you would have to wait three years before you can apply for citizenship.
If you obtained your green card through asylum, you would have to wait five years from the date that you received your green card to apply for citizenship.
If you obtained a green card as a parent you would have to wait five years to apply for citizenship.
If you obtained a green card as a sibling, you would have to wait five years to apply for citizenship.
As part of the citizenship process you have to demonstrate that you are a person of good moral character. Expect USCIS to look closely at your criminal record as they are deciding if you meet this requirement. The look back period is five years, but USCIS can consider crimes that were committed more than five years ago. There are some crimes that present a problem for a person who is looking to become a US Citizen. These crimes are referred to as crimes involving moral turpitude and include domestic violence convictions and some types of theft. If you have a criminal record, you may still be able to become a citizen. However, it is wise to consult with an immigration lawyer who will be able to identify any potential problems before you begin the process.
The I 601a waiver is used by those who want to get a green card after entering the US without inspection. The classic example involves someone who crosses the border without inspection, who then marries a US Citizen. In this scenario, if there are no other reasons why the green card seeker does not qualify for admission, they can apply for the I 601a waiver without leaving the United States to waive the basis(entering without inspection) for making them inadmissible to the US. After the I 601a waiver is approved, the green card seeker can then travel to the consulate abroad for an interview. If the interview goes smoothly, the green card seeker will enter the US on an immigrant visa.
You can apply for the I 601a waiver at the time that you apply for the I-130. It is advisable that you talk to an immigration lawyer before applying for an I 601a waiver. An immigration lawyer will be able to advise you on whether an I 601a waiver is necessary and help you evaluate your odds of success.
Business Immigration FAQ
A non immigrant business or work visa is a temporary visa that allows a foreign national to come to the United States temporarily for a specific type of employment.
The most commonly used non immigrant business visas include the H1-B visa, the L visa, the E visa, the TN visa and the O visa. Each visa has distinct requirements and features.
The H1b visa is a non immigrant temporary work visa that is reserved for employees who work in a specialized occupation. With a few exceptions, a foreign national who wants to utilize the h1b visa program will be subject to a lottery system when applying.
Your employee may qualify for an h1b visa if 1) they will be employed in a“specialty occupation” for which they are qualified and 2) you are planning on paying the “required wage.”
A specialty occupation is one that requires theoretical and practical application of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty for entry in the occupation. So, at a minimum, the position itself has to require a bachelor’s or higher degree or equivilant work experience in the specific field related to job duties to be performed. And, your foreign national employee must possess education or equivilant work experience to fulfill the job duties at time of filing the petition. If the prospective employee has fulfilled her requirements for the degree but has not been issued the degree, the foreign national can submit a letter stating that all of the requirements have been met and that the degree is forthcoming.
The process of applying for the h1b visa usually involves the following steps:
1.Obtain documentation relating to the education of the applicant
2. Verify your Federal Employer Identification Number (FEIN) with the Chicago National Processing Center (CNPC) unless the employer has done so previously.
3.Recieve a Prevailing Wage Determination from the U.S. Department of Labor (DOL) which usually takes a minimum of 30 days
4.Post a Draft Labor Condition Application(LCA) in at least two conspicuous locations at each place of employment where the H1B nonimmigrant will be employed. The LCA must remain posted for 10 days.
5.LCA APPROVAL: After posting for 10 days, the employer/petitioner is required to then obtain a labor condition application (LCA) approval from the U.S. Department of Labor.
6.SUBMIT H1B VISA PETITION–Submit visa petition, visa classification supplement, and LCA with evidence about the position to be filled to U.S. Citizenship and Immigration Services’(USCIS) regional adjudication center. The petition must be submitted with evidence that the position is a specialty occupation which oftentimes is shown by a letter from the employer. Additionally, evidence of the qualifications of the foreign national should be submitted.
Yes. A student on F-1 status will be eligible to stay in the United States if these four conditions are met:
1.The H1b has to be filed before the expiration of F-1 student or OPT status.
2.The employee has to request a change of status on the H1b petition form i129
3.The employee has to request an oct 1 start date
4.The case has to be approved
H1B visas are valid for a period of six years and may be extended beyond if the H1B visa holder is the beneficiary of an approved employment based immigration petition.
The spouses of H1B visa holders will receive an H-4 visa which will allow them to remain in the country with their spouse but generally doesn’t allow them to work.
You can’t predict the exact number of H1B applicants that will be sought in a given year, but you can look at the previous lottery numbers for guidance. For fiscal year 2019 there were around 190,000 petitions competing for 85,000 H1B visas.
There are some common alternatives to the H1B visa that include the TN visa for nationals of Mexico and Canada as well as the L1 intracompany transferee visa and the 0 visa.
L1 Visas are available for foreign nationals that have worked abroad for one continuous year during the past three years in an executive, managerial or specialized knowledge capacity. These foreign nationals may transfer to the United States temporarily to work for a parent brach affiliate or subsidiary of the foreign owned company in a managerial executive or specialized knowledge capacity.
The L1a visa for managers and executives is valid for a maximum of seven years. The L1b visa for specialized knowledge employees is valid for a maximum of 5 years.
Yes. Spouses of L1 visa holders qualify for an L2 visa and may apply for work authorization.