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Adjustment of status under 245(i) allows some people who would otherwise be unable to gain Lawful Permanent Resident (LPR) status get their Green Card. Originally passed by Congress in 1994, 245(i) allowed for some non-citizens, who met certain requirements, to pay a penalty fee and apply to adjust their status despite having entered the U.S. without inspection (EWI), worked without authorization or overstayed a visa. This allowed families to stay together in the U.S. without the added costs, uncertainty and hardship of consular processing.

245(i) was extended a few times, however, the final “sunset” date was April 30, 2001. People can still benefit from 245(i) today if they were the beneficiaries of petitions filed before April 30, 2001, the cut-off date. Moreover, derivative beneficiaries (spouses and unmarried children under age 21) of the principal beneficiary qualify for 245(i) adjustment of status where there is an old petition filed on or before April 30, 2001.

Legal Requirements for 245(i) Adjustment of Status

In order to qualify for 245(i) adjustment of status:

• An applicant must be the beneficiary or derivative beneficiary of a visa petition (I-130, I-140, I-360, I-526) or labor certification (ETA-750) that was filed on or before April 30, 2001 and that was “approvable when filed” (properly filed, meritorious in fact and non-frivolous);
• The principal beneficiary must have been physically present in the U.S. on December 21, 2000 if the petition was filed after January 14, 1998;
• An immigrant visa must be immediately available to the applicant either because the original 245(i) is current and valid or because they are the beneficiary of a new petition that is current;
• An applicant must be admissible but for INA 212(a)(6)(A) being present in the U.S. without admission or parole.

How To Discover Who May Qualify for 245(i) Adjustment of Status

Eligibility for 245(i) adjustment of status depends on the existence of an old petition. Figuring out if there is an old petition for which you are the principal or derivative beneficiary can be a difficult task. A good way to start is to identify all the people in your family, past and present, who currently have or previously had legal immigration status in the U.S. From there you can interview them about any petitions that were filed for other family members.

The rules for getting your Green Card through 245(i) are extremely complex but a qualified immigration attorney can help guide you to your goal.

If you are a U.S. citizen or Lawful Permanent Resident (LPR), you may be able to petition for your daughters or sons to become lawful permanent residents of the U.S. The rules for getting a Green Card through a U.S. Citizen parent are complex but a qualified immigration attorney can help guide you to your goal.

Unmarried Children (under 21 years old) of U.S. Citizens

The unmarried children (under 21 years old) of U.S. citizens are considered “immediate relatives” with an immediately available visa to immigrate to the U.S. as lawful permanent residents (LPRs). If the child is inside the U.S., they may be able to adjust status within the U.S. without leaving. If the child is outside the U.S., they may be able to immigrate to the U.S. as an LPR via consular processing.

Unmarried Sons and Daughters of U.S. Citizens

Unmarried sons and daughters of U.S. citizens are eligible to immigrate to the U.S. as LPRs. However, they are NOT considered “immediate relatives” and there is no immediately available visa. Instead, they are considered “First Preference” (F1) and subject to the applicable wait times posted in the State Department’s Monthly Visa Bulletin.

Unmarried Children (under 21 years old) of Lawful Permanent Residents

Unmarried children (under 21 years old) of LPRs are eligible to immigrate to the U.S. as LPRs. However, they are NOT considered “immediate relatives” and there is no immediately available visa. Instead, they are considered “Second Preference” (F2A) and subject to the applicable wait times posted in the State Department’s Monthly Visa Bulletin.

Unmarried Sons and Daughters (21 years old or over) of Lawful Permanent Residents

Unmarried sons and daughters (21 years old or over) of LPRs are eligible to immigrate to the U.S. as LPRs. However, they are NOT considered “immediate relatives” and there is no immediately available visa. Instead, they are considered “Second Preference” (F2B) and subject to the applicable wait times posted in the State Department’s Monthly Visa Bulletin.

Married Sons and Daughters of U.S. Citizens

Married sons and daughters of U.S. Citizens are eligible to immigrate to the U.S. as LPRs. However, they are NOT considered “immediate relatives” and there is no immediately available visa. Instead, they are considered “Third Preference” (F3) and subject to the applicable wait times posted in the State Department’s Monthly Visa Bulletin.

Form I-130 / Adjustment of Status / Consular Processing

The first step is for the U.S. citizen or LPR to file Form I-130, Petition for Alien Relative, with USCIS for each son or daughter and pay the applicable filing fees. USCIS requires you to file supporting documentation with your petition to prove your familial relationship.

You will be notified by USCIS if your Form I-130 immigrant petition is approved or denied. If it is approved and your son/daughter is outside the U.S. they will be notified when to go to their local U.S. consulate to complete the visa process. If your son/daughter is within the U.S., they may be eligible to simultaneously file Form I-485, Adjustment of Status, and get their Green Card without having to leave the country. If your form I-130 is denied, it could be for several reasons including failure to provide sufficient evidence or if there is some deficiency in your evidence.

Of course, there are risks to filing anything with USCIS. If your son/daughter has factors in their life that may make USCIS doubt the legitimacy of your relationship or make them inadmissible or deportable, please speak to a qualified immigration law attorney before filing.

If you are a U.S. citizen and 21 years old or over, you may be able to petition for your parents to become lawful permanent residents of the U.S. The rules for getting a Green Card through a U.S. Citizen parent are complex but a qualified immigration attorney can help guide you to your goal.

Immigrant Petition

The first step is for the U.S. citizen to file Form I-130 with USCIS for each parent and pay the applicable filing fee. USCIS requires you to file supporting documentation with your petition to prove your familial relationship. For example, if you are a U.S. citizen and at least 21 years old and filing for your mother who lives outside the U.S., USCIS requires Form I-130, a copy of your birth certificate showing your name and your mother’s name and a copy of your Certificate of Naturalization or U.S. Passport if you were not born in the U.S.

For a complete list of requirements, please see: www.uscis.gov/family/family-us-citizens/bringing-parents-live-united-states-permanent-residents

Approval or Denial / Adjustment of Status / Consular Processing

You will be notified by USCIS if your Form I-130 immigrant petition is approved or denied. If it is approved and your parent is outside the U.S. they will be notified to go to their local U.S. consulate to complete the visa process. If your parent is within the U.S., they may be eligible to simultaneously file Form I-485, Adjustment of Status, and get their Green Card without having to leave the country. If your form I-130 is denied, it could be for several reasons including failure to provide sufficient evidence or if there is some deficiency in your evidence.

Of course, there are risks to filing anything with USCIS. If your parent has factors in their life that may make USCIS doubt the legitimacy of your relationship or make them inadmissible or deportable, please speak to a qualified immigration law attorney before filing.

Affidavit of Support

In order to be admissible to the U.S., your parent cannot be at risk of becoming a public charge. Therefore, when sponsoring a parent for their Green Card, you may be required to fill out Form I-864, Affidavit of Support. Form I-864 is a contractual agreement between the sponsor and the U.S. government that you will support your parent and not allow them to become a public charge for a designated period of time.

Medical Exam

In order to be admissible to the U.S. or adjust status within the U.S., your parent will have to undergo a physical examination by an approved physician to rule out any physical / mental health ground of inadmissibility. Form I-693, Report of Medical Examination and Vaccination Record, is required for adjustment of status and must be completed by your parent and an approved physician. Additionally, the Form-I-693 must be returned to the applicant in a sealed envelope for submission to USCIS.

In order to gain asylum in the United States, an applicant bears the burden of proving they are a “refugee” under U.S. immigration law. Refugee is defined as:

“Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A)

One Year Filing Deadline

The applicant must also demonstrate, “by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.”

However, an applicant may file beyond the one year filing deadline if they can prove “either the existence of changed circumstances that materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing the application within the [one-year filing] period.”

Past Persecution

Past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion is a ground for asylum protection. A change in the circumstances since the past persecution took place could be grounds to not approve the asylum claim.

Well-founded Fear of (Future) Persecution

In order to show a well-founded fear of future persecution, the applicant must prove:

1. the applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
2. the persecutor is already aware, or could become aware, that the applicant possesses this belief or characteristic;
3. the persecutor has the capability of punishing the applicant; and
4. the persecutor has the inclination to punish the applicant.

The “on account of” Nexus

The asylum applicant must show the connection between the persecution they fear in the future and their actual or imputed membership in a race, religion, nationality, membership in a particular social group or political opinion.

Membership in a Particular Social Group

An asylum seeker must clearly indicate on the record and before the immigration judge, the exact delineation of any proposed particular social group.

According to the Attorney General:

An applicant for asylum on account of her membership in a purported particular social group must demonstrate:

1. membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question;
2. that her membership in that group is a central reason for her persecution; and
3. that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.

The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

Non-State Persecutors

When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

Favorable Exercise of Discretion

Having met all the requirements of qualifying as a refugee, the applicant must also prove they merit a favorable exercise of discretion. Discretionary factors can be divided into two categories:

1. factors related to immigration and asylum process and procedures specifically, and
2. factors related to the applicant’s life more generally.

The first focuses on how the applicant came to the U.S. and their conduct during the application process. The second is a broader examination of the applicant’s life outside of the immigration process.

The rules for Asylum in the U.S. are extremely complex but a qualified immigration attorney can help guide you to your goal.

Cancellation of Removal is a defense to deportation available only in Immigration Court. A foreign national cannot apply for Cancellation of Removal if you are not in removal proceedings.

Cancellation of Removal for non-Lawful Permanent Residents (LPRs)

Successful Cancellation of Removal for non-LPRs results in lawful permanent resident, or “green card,” status for the applicant.

In order to qualify for Cancellation of Removal as a non-LPR, one must be in removal proceedings, because they are deportable or inadmissible, and be able to demonstrate:

• Continuous, physical presence in the U.S. for at least 10 years;
• Good moral character for 10 years;
• That they have not been convicted of any crimes listed in INA §§ 212(a), 237(a)(2) or 237(a)(3);
• That deporting them would cause “exceptional and extremely unusual hardship” to their U.S. citizen or LPR spouse, parent or child.

Statutorily Ineligible

Foreign nationals who have previously received cancellation of removal, suspension of deportation or relief under § 212(c) are not eligible for cancellation of removal. Additionally, those who have persecuted others or are removable on anti-terrorism grounds are not eligible. Crewmen who entered the U.S. after June 30, 1964 and certain “J” visa exchange visitors are, likewise, ineligible.

Continuous, Physical Presence in the U.S. for at least 10 years

The ten year clock stops on the date listed on the Notice To Appear (NTA) and any time after that cannot be counted toward 10 year continuous, physical presence. One departure from the U.S. for 90 days or more stops continuous, physical presence. Additionally, total absences from the U.S. of 180 days or more stops continuous, physical presence. Leaving the U.S. “under threat of deportation” also stops deportation, regardless of the length of departure.

Good Moral Character for 10 years

The 10 year clock for good moral character is different than the continuous, physical presence clock. The period of time for good moral character continues until the final decision and is the ten years immediately preceding the decision of the immigration judge, or BIA if the case is appealed.

In order to establish good moral character, the foreign national must pass a two-part test.

1. They must establish that they are not statutorily barred from showing good moral character based on any of the grounds listed in INA § 101(f).
2. They must submit evidence of their good moral character for the Immigration Judge to weigh against any evidence to the contrary. Immigration Judges have discretion in these matters.

Criminal Disqualification

See INA §§ 212(a), 237(a)(2) or 237(a)(3) for the list of convictions that may disqualify a candidate for cancellation of removal.

Additionally, conviction of even one crime involving moral turpitude (CIMT) is a bar to non-LPR cancellation, with one exception, if (a) the person has committed only one CIMT, (b) a sentence of six months or less was imposed, and (c) the offense carries a maximum possible sentence of less than one year.

Exceptional and Extremely Unusual Hardship

In order to qualify for non-LPR cancellation of removal, an applicant must also show that deportation would cause “exceptional and extremely unusual hardship” to their U.S. citizen or LPR spouse, child or parent. Hardship to the applicant does not count. Hardship to non-qualifying relatives does not count. However, hardship to the applicant and non-qualifying relatives is relevant in its effect on qualifying relatives. Additionally, the standard requires a showing of hardship that is “substantially” more than the hardship one would suffer from deportation and is limited to “truly exceptional” situations.

The rules for Cancellation of Removal are extremely complex but a qualified immigration attorney can help guide you to your goal.

There are many advantages to becoming a U.S. citizen. For example, U.S. citizens can more-easily help family members immigrate to the U.S., voting in U.S. elections and traveling with a U.S. passport. However, applying for U.S. citizenship can open the applicant to deportation if there are factors in their life that make them inadmissible/removable. If this may be the case, please consult an experience immigration attorney before filing for naturalization.

Qualifications for Naturalization

In order to qualify for naturalization to U.S. citizenship, you must have valid Lawful Permanent Resident status. Other requirements include:

1. permanent resident status for at least 5 years (or 3 years if filing as the spouse of a U.S. citizen) and meet all other eligibility requirements;
2. qualifying service in the U.S. armed forces and meet all other eligibility requirements; or
3. child of a U.S. citizen, if the child was born outside the U.S., the child is currently residing outside the U.S., and all other eligibility requirements are met.

Additionally, you may already be a U.S. citizen and not have to go through the naturalization process if your biological or adoptive parent(s) became a U.S. citizen before you reached the age of 18.

Eligibility Requirements

You may qualify for U.S. citizenship through the naturalization process if you have been a Lawful Permanent Resident for 5 years (or 3 years if filing as the spouse of a U.S. citizen) immediately preceding the date of filing the Form N-400, Application for Naturalization and:

• Are 18 years old or older at the time of filing;
• Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the Form N-400;
• Have continuous residence in the United States as a Lawful Permanent Resident for at least 5 years immediately preceding the date of filing the Form N-400;
• Be physically present in the U.S. for at least 30 months out of the 5 years immediately preceding the date of filing the Form N-400 (or 18 months out of the 3 years if filing as the spouse of a U.S. citizen);
• Reside continuously within the U.S. from the date of application for naturalization until the time of naturalization;
• Be able to demonstrate an ability to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics); and
• Be a person of good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the United States during all relevant periods under the law

Issues with Naturalization

US Citizenship and Immigration Services (USCIS) recently issued a memo expanding their issuance of Notices to Appear (NTAs) to applicants seeking immigration benefits such as naturalization. An NTA is the charging document that initiates removal proceedings. While USCIS had the authority to issue NTAs to removable applicants, the new memo requires the initiation of removal proceedings in all cases where the Form N-400 has been denied on good moral character grounds based on an underlying criminal offense, when the applicant is removable.

The rules for becoming a U.S. citizen are extremely complex but a qualified immigration attorney can help guide you to your goal.

EB-3 is shorthand for “Employment-Based Third Preference,” a category of employment-based U.S. immigrants made up of “skilled workers,” “professionals,” and “other workers.”

Skilled Workers

In order to qualify for EB-3 employment-based immigration to the U.S. as an EB-3 Skilled Worker, you must be able to demonstrate two years of experience or training and you must be performing work for which there are no qualified U.S. workers available. The U.S. Department of Labor (DOL) also requires Labor Certification and a full-time, permanent job offer.

Professionals

In order to qualify for EB-3 employment-based immigration to the U.S. as an EB-3 Professional, you must be able to demonstrate that you possess a U.S. baccalaureate degree or the foreign equivalent, that you are performing work for which there are no qualified U.S. workers available and education/experience cannot be substituted for the baccalaureate degree. The U.S. Department of Labor (DOL) also requires Labor Certification and a full-time, permanent job offer.

Other Workers

In order to qualify for EB-3 employment-based immigration to the U.S. as an EB-3 Other Worker, you must be able to demonstrate capability, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training/experience), that is not of a temporary or seasonal nature, for which there are no qualified U.S. workers available.

Process

Generally, employment-based immigration is a three part process.

1. PERM Labor Certification: Recruitment and Prevailing Wage Determination

PERM Labor Certification is, generally, a two-part process made up of a labor market recruiting campaign and a prevailing wage determination. The employer is required to make efforts to recruit U.S. workers for the position and show their efforts have been fruitless to the Department of Labor (DOL). The employer must also show the wage they are offering is consistent with the prevailing wage of that occupation in that area so as not to negatively impact the wages of similar U.S. workers.

Once the employer has sufficiently proven to the DOL that they tried but were unable to find a qualified U.S. worker and that they wage for the position is consistent with the prevailing wage requirement, Department of Labor will certify the PERM Labor Certification.

2. I-140 Application for Immigrant Visa and Proof of Ability to Pay

Once the Labor Certification is certified by the DOL, the employer must file Form I-140, Application for Immigrant Visa with U.S. Citizenship and Immigration Services (USCIS). The employer must show they have the ability to maintain the foreign nationals employment and that the foreign national is qualified for the position in the PERM application.

3. I-485 Adjustment of Status

Once the I-140 is approved, the foreign national can adjust their status to LPR without leaving the U.S. if they qualify to do so. The foreign national’s spouse and unmarried children under 21 may also adjust status or consular process if they are not in the U.S. at the time. Each case is given a priority date based on when they filed. The State Department publishes a Visa Bulletin listing the priority dates for each employment-based category currently being processed. Applicants with a priority date of or before the listed date can file. “C” indicates the applicant can file regardless of priority date.

The rules and process for getting your employment-based green card are extremely complex but a qualified immigration attorney can help guide you to your goal.

There are several ways for foreign nationals to become Lawful Permanent Residents (LPRs), aka “Green Card” holders, via employment in the U.S. Generally, the categories of employment-based (EB) “preference immigrants” are:

(EB-1) First Preference: Priority Workers

• Foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics;
• Outstanding professors and researchers; or
• Certain multinational managers and executives.

(EB-2) Second Preference:

• Are a member of a profession that requires an advanced degree, or
• Have exceptional ability in the sciences, arts, or business, or
• Are seeking a national interest waiver

(EB-3) Third Preference: skilled workers, professionals, or other workers.

• A skilled worker (meaning your job requires a minimum of 2 years training or work experience), or
•  A professional (meaning your job requires at least a U.S. bachelor’s degree or a foreign equivalent and you are a member of the profession), or
• An unskilled worker (meaning you will perform unskilled labor requiring less than 2 years training or experience)

More specialized categories include:

(EB-4) special immigrants: there are several specialized groups of foreign nationals who may qualify for this category including religious workers, special immigrant juveniles and Afghanistan or Iraq nationals.

(EB-5) immigrant investors:  foreign nationals who have invested or are actively in the process of investing $1 million (or $500,000 in targeted employment areas) in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time positions for qualifying employees.

Process

Generally, employment-based immigration is a three part process.

1. PERM Labor Certification: Recruitment and Prevailing Wage Determination

PERM Labor Certification is, generally, a two-part process made up of a labor market recruiting campaign and a prevailing wage determination. The employer is required to make efforts to recruit U.S. workers for the position and show their efforts have been fruitless to the Department of Labor (DOL). The employer must also show the wage they are offering is consistent with the prevailing wage of that occupation in that area so as not to negatively impact the wages of similar U.S. workers.

Once the employer has sufficiently proven to the DOL that they tried but were unable to find a qualified U.S. worker and that they wage for the position is consistent with the prevailing wage requirement, Department of Labor will certify the PERM Labor Certification.

2. I-140 Application for Immigrant Visa and Proof of Ability to Pay

Once the Labor Certification is certified by the DOL, the employer must file Form I-140, Application for Immigrant Visa with U.S. Citizenship and Immigration Services (USCIS). The employer must show they have the ability to maintain the foreign nationals employment and that the foreign national is qualified for the position in the PERM application.

3. I-485 Adjustment of Status

Once the I-140 is approved, the foreign national can adjust their status to LPR without leaving the U.S. if they qualify to do so. The foreign national’s spouse and unmarried children under 21 may also adjust status or consular process if they are not in the U.S. at the time. Each case is given a priority date based on when they filed. The State Department publishes a Visa Bulletin listing the priority dates for each employment-based category currently being processed. Applicants with a priority date of or before the listed date can file. “C” indicates the applicant can file regardless of priority date.

The rules and process for getting your employment-based green card are extremely complex but a qualified immigration attorney can help guide you to your goal.

A U.S. citizen may be eligible to bring their foreign national fiancé(e) to the U.S. in order to get married with a K-1 Visa. The basic requirements are:

• You are a U.S. citizen;
• You file Form I-129F, Petition for Alien Fiancé(e);
• You and your fiancé(e) intend to marry one another within 90 days of your fiancé(e)’s admission to the U.S. on a K-1 visa;
• You and your fiancé(e) are both unmarried and legally free to marry; and
• You and your fiancé(e) met each other in person at least once within the 2-year period before you file your petition. You may request a waiver of this in-person meeting requirement if you can show that meeting in person would:
  • Violate strict and long-established customs of your fiancé(e)’s foreign culture or social practice; or
  • Result in extreme hardship to you, the U.S. citizen petitioner.

Form I-129F Process

First, the U.S. citizen files Form I-129F, Petition for Alien Fiancé(e). U.S. Citizenship and Immigration Services (USCIS) then reviews the submitted form and evidence. USCIS may require additional documentation if they are not satisfied with the initial submission. Then USCIS approves the petition or denies the petition and notifies the U.S. citizen of the reasons. After approval, USCIS forwards the Form I-129F to the U.S. Department of State National Visa Center (NVC).

K-1 Visa Process

The NVC sends the approved Form I-129F to the embassy or consulate where the foreign national fiancé(e) will apply for their K-1 Nonimmigrant Visa. The embassy or consulate will notify the U.S. citizen when/where the visa interview for the fiancé(e) will take place. Then the fiancé(e) applies for the K-1 Visa and attends the interview, bringing with them documentation to support the application. If approved, the fiancé(e) has 6 months to enter the U.S. on the K-1 Visa. However, if the officer does not find the relationship to be bona fide, they will deny the application.

The issuance of a K-1 visa does not guarantee a fiancé(e) will be admitted into the U.S. A U.S. Customs and Border Protection (CBP) agent at the port of entry will make the final admission decision.

Once admitted, the U.S. citizen and fiancé(e) have 90 days to marry each other.

Adjustment of Status

Once admitted and married, the K-1 Visa holder can apply for adjustment of status to become a Lawful Permanent Resident using Form I-485, Application To Register Permanent Residence or Adjust Status. USCIS will usually require an interview for both parties to attend. Upon approval, USCIS will grant the spouse conditional permanent resident status and issue a Green Card valid for 2 years. The Conditional Lawful Permanent Resident will need to remove the conditions on their residence in the 90 days before his or her Green Card expires by filing Form I-751, Petition to Remove Conditions on Residence.

Children of Fiancé(e)s

Children of K-1 fiancé(e)s, unmarried and under 21, may be eligible to immigrate to the U.S. with a K-2 visa. They must be listed on the Form I-129F and continue to remain unmarried and under 21 at the time of entry in order to qualify under K-2.

The rules for immigrating to the U.S. with a K-1 Visa are complex but a qualified immigration attorney can help guide you to your goal.

You may qualify for a marriage-based green card if you are married to a U.S. Citizen or Lawful Permanent Resident (LPR). The rules for getting your Green Card through a U.S. Citizen or LPR spouse are complex but a qualified immigration attorney can help guide you to your goal.

Marriage to a U.S. Citizen or Lawful Permanent Resident

If you have a valid marriage to a U.S. Citizen or LPR, you may be able to apply for a green card. Even if you have unlawful presence or overstayed a visa, your bona fide marriage may qualify you for a green card. Your spouse starts the process by filing a visa petition I-130 with U.S. Citizenship and Immigration Services (USCIS) petitioning for you to either adjust status within the U.S. or come into the U.S. by consular processing. USCIS charges a filing fee for Form I-130.

Adjustment of Status

If you are currently in the U.S., you may be able to adjust your status to LPR based on your bona fide marriage to a U.S. Citizen or LPR. Through adjustment of status, you can apply for your green card without leaving the U.S. USCIS Form I-485 is used to apply for a green card with a concurrently filed I-130 or approved I-130. There is an interview process through which applicants prove the bona fides of their marriage. Work authorization is also available to qualified applicants while your adjustment of status is being adjudicated. USCIS charges a filing fee for Form I-485.

Of course, there are risks to filing for your adjustment of status. If you have factors in your life that may make USCIS doubt the legitimacy of your marriage or make you inadmissible or deportable, please speak to a qualified immigration law attorney before filing.

Consular Processing

If you live outside the U.S., you may be able to immigrate to the U.S. based on your bona fide marriage to a U.S. Citizen or LPR. Consular processing can be a time-consuming and complicated process for applicants. Once your spouse’s I-130 is approved, the National Visa Center will notify you when you can apply for permanent residence. In the case of a marriage to a U.S. Citizen, there is an immediately available visa. In the case of a marriage to a LPR, there is no immediately available visa but the State Department publishes a Visa Bulletin to inform you when your application date is approaching. The State Department charges a fee for consular processing.

Conditional Permanent Residence

If your marriage is less than two years old on the day you were given permanent residence, your permanent residence is conditional. Generally, you may apply to remove your conditions on permanent residence if you are still married to the same U.S. citizen or permanent resident after 2 years, get widowed during a good faith marriage, get divorced but entered the marriage in good faith or if you or your child were the victim of spousal abuse by your U.S. citizen or LPR spouse.  USCIS charges a filing fee to remove the conditions of your permanent residence.

Possible Roadblocks

If there is something in your past that makes you inadmissible to the U.S. or deportable, you may still be able to get your green card through marriage to a U.S. Citizen or LPR spouse. The laws are complex and the risks are great but a qualified immigration law attorney can guide you to your goal. We invite you to make an appointment with our staff to get you on the path to status.

Under VAWA, victims of battery or extreme cruelty may be eligible to become Lawful Permanent Residents (LPRs), if the abuse was committed by:

• A U.S. citizen spouse or former spouse;
• A U.S. citizen parent;
• A U.S. citizen son or daughter;
• A lawful permanent resident (LPR) spouse or former spouse; or
• An LPR parent.

Victims may self-petition under VAWA by filing Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. The abusive family member does not have to consent or even have knowledge of the victim’s petition. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.

Documenting Abuse

There are several ways to demonstrate abuse. Options for evidentiary documents include:

• Police reports;
• Restraining, stay away, or exclusion orders, plus accompanying documents;
• Statements, notes, or declarations from a police officer with knowledge of the situation;
• 911 transcripts;
• Criminal court records if abuser was arrested or convicted;
• Medical records;
• Domestic violence shelter records;
• Counseling/mental health records;
• Photographs of injuries or damaged property;
• Letters or notes from the abuser;
• School records containing comments by child about abuse;
• Declaration from self-petitioner telling her own story;
• Declarations from persons who saw abuse or was told about it by self-petitioner
• Declarations from staff or volunteer at domestic violence shelter
• Declarations from mental health worker/counselor
• Evidence of abuser’s history of drug or alcohol abuse or mental illness.

Derivative Children of VAWA self-petitioners

An unmarried child under 21 years old of a VAWA-based principal applicant may also be eligible to apply for a Green Card as a derivative family member of an approved VAWA self-petitioner. However, you may not file as a derivative if the principal applicant is a self-petitioning parent of an abusive U.S. citizen son or daughter. Each derivative applicant must file their own Green Card application and supporting documents.

When a U.S. citizen is the abuser

If a parent is a VAWA self-petitioner and the spouse or child of an abusive U.S. citizen, we consider the parent to be an immediate relative eligible for an immediately available visa.   Accordingly, the derivative child would also be considered an immediate relative. In these cases, if there is a visa immediately available to the parent, the child may submit a Form I-485 together with their parent’s Form I-485. The child may also file Form I-485 separately based on their parent’s pending or approved Form I-485.

When a Lawful Permanent Resident is the abuser

If a parent is a VAWA self-petitioner and the spouse of a lawful permanent resident (LPR), the derivative child will generally have the same visa preference category and priority date as your self-petitioner parent. You can file your Form I-485 when a visa available for your preference category based on your priority date.

If you are the “immediate relative” of a U.S. citizen, you may be eligible for a Green Card and Lawful Permanent Resident status if you meet all eligibility requirements. U.S. Citizenship and Immigration Services (USCIS) considers you an “immediate relative” if you are:

• The spouse of a U.S. citizen;
• The unmarried child under 21 years of age of a U.S. citizen; or
• The parent of a U.S. citizen (if the U.S. citizen is 21 years of age or older).

Immediate relatives of U.S. citizens have immediately available visas for purposes of adjustment of status or consular processing of visa applications.

Immigrant Petition

The first step is for the U.S. citizen to file Form I-130 with USCIS for each immediate relative and pay the applicable filing fee. USCIS requires you to file supporting documentation with your petition to prove your familial relationship.

Approval or Denial / Adjustment of Status / Consular Processing

You will be notified by USCIS if your Form I-130 immigrant petition is approved or denied. If it is approved and your immediate relative is outside the U.S. they will be notified to go to their local U.S. consulate to complete the visa process. If your immediate relative is within the U.S., they may be eligible to simultaneously file Form I-485, Adjustment of Status, and get their Green Card without having to leave the country. If your form I-130 is denied, it could be for several reasons including failure to provide sufficient evidence or if there is some deficiency in your evidence.

Of course, there are risks to filing anything with USCIS. If your immediate relative has factors in their life that may make USCIS doubt the legitimacy of your relationship or make them inadmissible or deportable, please speak to a qualified immigration law attorney before filing.

Work Authorization

Immediate relatives are eligible to gain work authorization while their adjustment of status is being adjudicated. Your immediate relative can file Form I-765, Application for Employment Authorization, with their application to adjust status in order to begin work while they wait for their green card.

Affidavit of Support

In order to be admissible to the U.S., your immediate relative cannot be at risk of becoming a public charge. Therefore, when sponsoring an immediate relative for their Green Card, you may be required to fill out Form I-864, Affidavit of Support. Form I-864 is a contractual agreement between the sponsor and the U.S. government that you will support your immediate relative and not allow them to become a public charge for a designated period of time.

Medical Exam

In order to be admissible to the U.S. or adjust status within the U.S., your immediate relative will have to undergo a physical examination by an approved physician to rule out any physical / mental health ground of inadmissibility. Form I-693, Report of Medical Examination and Vaccination Record, is required for adjustment of status and must be completed by your immediate relative and an approved physician. Additionally, the Form-I-693 must be returned to the applicant in a sealed envelope for submission to USCIS.

Possible Roadblocks

If there is something in your immediate relative’s past that makes them inadmissible to the U.S. or deportable, they may still be able to get their green card through marriage to a U.S. Citizen or LPR spouse. The laws are complex and the risks are great but a qualified immigration law attorney can guide you to your goal. We invite you to make an appointment with our staff to get you on the path to status.

The legal term for a non-U.S. citizen, legally authorized to live permanently in the U.S. is “lawful permanent resident” (LPR). Their lawful permanent resident card is also known as a “green card.” LPRs have many of the same rights as U.S. citizens but not all of them. For example, LPRs may work legally in the U.S., own property, receive some public assistance and serve in the U.S. armed forces. However, LPRs cannot vote or hold many public offices.

Generally, LPRs get their status from family-based immigration, employment-based immigration or asylum. There are other possible avenues to LPR status for widow(ers) of U.S. citizens, abused spouses or children of U.S. citizens or LPRs, abused parents of U.S. citizens and “special immigrants.”

LPRs can petition for certain family members to come to the U.S. and become LPRs. LPRs can lose their status as LPRs for many reasons including if they commit certain crimes, fraud, become addicted to drugs, vote illegally or abandon their LPR status. LPRs can become U.S. citizens if they meet specific eligibility requirements. The process by which LPRs become U.S. citizens is called “naturalization.”

Naturalization

Generally, LPRs can become U.S. citizens, with all the same rights and privileges as natural-born U.S. citizens, if they:

• Are 18 years of age,
• Have been an LPR for 5 years immediately prior to filing Form, N-400, Application for Naturalization, or 3 years in the case of qualified spouses of U.S. citizens,
• Have lived in the state or USCIS jurisdiction where they filed for 3 months prior to filing their N-400,
• Have continuous residence in the U.S. as an LPR for 5 years immediately preceding their date of filing,
• Have physical presence in the U.S. for at least 30 months out of the 5 years immediately preceding the filing of Form N-400, or 18 months in the case of qualified spouses of U.S. citizens,
• Reside within the U.S. from the date of filing Form N-400 until the time of naturalization,
• Can read, write and speak English,
• Have a demonstrable knowledge of U.S. history and government,
• Are a person of good moral character,committed to the principles of the U.S. Constitution, and well-disposed to the good order and happiness of the United States during all relevant periods under the law.

Of course, there are risks to filing for your naturalization. If you have factors in your life that may make you inadmissible or deportable, please speak to a qualified immigration law attorney before filing.

Some foreign nationals with advanced degrees or exceptional ability may be able to immigrate to the U.S. with an Employment-based Second Preference (EB-2) visa and forego Labor Certification and a job offer based on their doing so being in the “national interest.”

In order to qualify for the National Interest Waiver (NIW), the foreign national or employer must demonstrate, by a preponderance of the evidence, that:

• The applicant is a member of the professions holding an advanced degree or as an individual of exceptional ability in the sciences, arts, or business;
• The applicant’s proposed endeavor has both substantial merit and national importance in business, entrepreneurialism, science, technology, culture, health, education or a wide range of other fields;
• The applicant is well-positioned to advance that proposed endeavor. USCIS will look to their education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of potential customers, users, investors or other relevant entities or individuals to determine whether the foreign national meets this requirement;
• It would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category. USCIS will consider whether the U.S. would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available, and whether the national interest of the foreign national’s contributions is sufficiently urgent to warrant foregoing the labor certification process to meet this requirement;
• A favorable exercise of discretion is warranted.

Criteria for proving EB-2 Qualification

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
• Letters documenting at least 10 years of full-time experience in your occupation;
• A license to practice your profession or certification for your profession or occupation;
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
• Membership in a professional association(s);
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations;
• Other comparable evidence of eligibility is also acceptable.

The rules for a National Interest Waiver are extremely complex but a qualified immigration attorney can help guide you to your goal.

Nationality

According to the Immigration and Nationality Act (INA) “the term ‘national of the United States’ means:

(A) a citizen of the United States, or

(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”

Therefore, U.S. citizens are also U.S. nationals. Individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States have Non-citizen nationality status.

Dual Nationality

A person who is a national of two countries at the same time has “dual nationality.” Every country has its own nationality laws. Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. national parents may be both a U.S. national and a national of the country of birth. Or, an individual having one nationality at birth may naturalize at a later date in another country and become a dual national.

U.S. law neither mentions dual nationality nor requires a person to choose one nationality or another. Therefore, a U.S. citizen may naturalize in a foreign state without any risk to his or her U.S. citizenship. However, U.S. nationals after age 18 may relinquish their U.S. nationality if they wish to do so. In order to relinquish U.S. nationality by virtue of naturalization as a citizen of a foreign state, the law requires that the person must apply for the foreign nationality voluntarily and with the intention to relinquish U.S. nationality. Intent may be shown by the person’s statements and conduct.

Issues for Lawful Permanent Residents / Naturalization

In order to be naturalized, a Lawful Permanent Resident (LPR) must maintain continuous residence in the US for five years (or three years in the case of some LPRs married to U.S. citizens). Continuous residence as an LPR does not require physical presence in the U.S. for the entire statutory period. Absences from the US of less than six months do not break the continuity of residence. Absences of more than six months and less than one year may break the continuity of residence depending on other factors. Absences of more than one year do break the continuity of residence.

Under INA § 316(b), LPRs who remain outside the U.S. for more than a year may not apply for naturalization until at least four years from the date of their return. Disruption of the continuity of residence does not lead to loss of permanent resident status. It only means that the LPR must wait longer before being eligible to naturalize. This is quite different from abandonment, which may lead to loss of LPR status and removal from the US.

Issues for Lawful Permanent Residents / Abandonment

When traveling outside the U.S., Lawful Permanent Residents should be aware of the risk of abandoning their LPR status and losing their “green card.” Temporary visits abroad will not cause forfeiture of LPR status, however, what is considered “temporary” is highly fact-based and subject to interpretation.

There is no numerical formula that will tell you if an LPR has abandoned his or her status. The Board of Immigration Appeals has said that “what is a temporary visit cannot be defined in terms of elapsed time alone.” Matter of Huang, 19 I&N Dec. 749, 753 (BIA 1988). Each situation is evaluated on its own, and all factors weighed and considered. It is quite possible that an LPR could spend more than two years outside the US and not have abandoned her or his status. It is also possible that an LPR could make numerous trips of less than six months each outside the US and be found to have abandoned her or his status. Numbers alone do not tell the whole story – they are one part of the story and must be looked at in context.

The Victims of Trafficking and Violence Prevention Act (VTVPA) was passed in 2000 with bipartisan support and created the U Visa.

The U visa is a nonimmigrant visa for victims of certain crimes who have been, or are likely to be, helpful to law enforcement in the investigation or prosecution of a crime.

The U Visa serves to valuable services:

First, it enhances law enforcement’s ability to investigate and prosecute crimes.

Second, it furthers humanitarian interests by protecting victims of serious crimes.

Helpful to law enforcement

“Helpful to law enforcement” means the victim was, is, or is likely to be assisting law enforcement in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. This includes being helpful and providing assistance when reasonably requested. This does not include specific requirements, such as a requirement to testify.

Criminal Activity

In order to qualify for a U visa, applicants must be victims “of certain crimes.” The statute lists the following crimes:

• Abduction
• Abusive Sexual Contact
• Blackmail
• Domestic Violence
• Extortion
• False Imprisonment
• Female Genital Mutilation
• Felonious Assault
• Fraud in Foreign Labor Contracting
• Hostage
• Incest
• Involuntary Servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of Justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual Assault
• Sexual Exploitation
• Slave Trade
• Stalking
• Torture
• Trafficking
• Witness Tampering
• Unlawful Criminal Restraint
• Other Related Crimes: This includes attempt, conspiracy, or solicitation to commit any of the above.

Certification

As part of the U Visa application, Congress designated certifying government agencies, including any local authority charged with investigating or prosecuting criminal activity, to complete and sign the Certification, known as the Form I-918B or Supp B.2

Without the certification the applicant may not even apply for a U Visa. Ultimately, the federal government decides whether someone is eligible for the U visa by looking at the validity of the certification, person’s conduct including criminal and immigration history, and deciding as a matter of discretion whether the person is deserving of the relief.

Benefits and Path to Citizenship

The U Visa is a temporary form of immigration status that allows a person to lawfully live and work in the United States. U visa holders have a legal path to U.S. citizenship. While, it does not automatically guarantee a Lawful Permanent Residence (LPR) status, aka a “green card,” U visa recipients may apply for lawful permanent residence after three years of U Visa status. U visa recipients are still subject to rules and regulations of applying for a green card.

The rules for obtaining a U visa are complex but a qualified immigration attorney can help guide you to your goal.