Immigrant Petitions

What is a Immigrant Visa?

Becoming a legal permanent resident (LPR), allows foreign nationals to live and work permanently in the United States. In order to become an immigrant, the foreigner must go through a multi-step process which can become quite complex. In most cases, the first step involves the filing of an immigrant petition by a relative or employer and subsequently, approval by the USCIS. Then, an immigrant visa number must be available, even if the foreigner is already in the U.S. If the foreign national is in the U.S, they can apply to adjust to permanent resident status; otherwise, they will be notified to go to the local U.S. consulate or embassy in their home country to complete the processing for their immigrant visa.

Our firm provides assistance in filing the following immigrant petitions:

Relative Petitions (I-130)

One of the main factors in determining your eligibility to apply for a relative petition is the immigration status of the sponsoring relative. It will also determine the length of time you will need to wait. For example, those immediate relatives of a U.S. citizen include the USC’s parents, spouse, and children under 21 years of age. If you fall into the immediate relative category, visa numbers are always current and available. Depending on where the foreign national is residing at the time will help determine if the application can be filed in the U.S. through the USCIS office or whether consular processing would be utilized.

There are four family-based preference categories and the time it takes for these visas to be available is governed by the Department of State and can be located in the Visa Bulletin which is updated every month Click for recent visa bulletin.  U.S. Citizens can sponsor their brother and/or sisters (F-4 category) and half-siblings may petition for one another as well. With one of the longest wait times, this F-4 category currently is taking up to over a decade and in some countries, several decades.

Sometimes the sponsor (petitioner) may pass away after the I-130 relative petition has been approved, leaving behind the intending immigrant. In such cases, the I-130 may be reinstated by the Attorney General. The death of the petitioner will automatically revoke the I-130 petition unless USCIS decides that for humanitarian reasons, the petition should not be revoked and there is a substitute sponsor under the Family Sponsor Immigration Act of 2002. An I-130 petition filed by a spouse who dies is not automatically revoked where the surviving spouse qualifies as a widow(er) under the Immigration & Nationality Act (INA). If the beneficiary is the spouse of a USC and they were married for 2 years and the surviving spouse is not remarried, the I-130 petition is automatically converted into an I-360 self-petition and no affidavit of support is required.

Green Card

U.S. immigration laws look to the intention of the foreign national who desires to come to the U.S., distinguishing between “non-immigrant intent” and “immigrant intent”. Those individuals who desire to reside permanently in the U.S. will seek to obtain legal permanent resident (LPR) status, also known as a green card. Generally, the two major avenues to achieve this goal is through family sponsorship or employment. Other avenues are through diversity lottery or refugees/asylees. 

Family sponsorship: If the sponsoring relative is a U.S. Citizen, they can sponsor their parents, children, spouse, and siblings. However, Green Card holders (LPR) can only sponsor their spouse, minor children and unmarried children over 21. Once they become naturalized there are more opportunities available for sponsorship. 

There are five employment-based preferences for those seeking to obtain a green card through an employer: EB1, EB2, EB3, EB4, and EB5. The first preference, known as EB-1 category, consist of priority workers. The second preference, known as EB-2 category is for members holding advanced degrees or persons of exceptional ability. The third preference, known as EB-3 category is for skilled workers, professionals, and other workers. EB-4 is the fourth preference category for special immigrants, such as religious workers. While EB-5 is the fifth category for employment creation (investors) in a new commercial enterprise.

The diversity visa lottery, is just that, a lottery. 55,000 diversity visas are available each year. The Department of Homeland Security (DHS) determines by a complex formula based on persons from each foreign state who were provided with LPR status during the most recent 5-year period for which data is available. The applicant must be from a low admission state designated under the diversity program and have either 1) a high school diploma or its equivalent or 2) at least 2 years of work experience in an occupation requiring 2 years’ training/experience (the occupation must require an SVP of 7).

Adjustment of Status

In order for a foreign national who is physically in the U.S. to adjust his/her status to become a legal permanent resident (LPR), they must file the adjustment of status application (I-485). In order to apply, he/she must have an approved family-based immigrant visa petition or an approved employment-based immigrant visa petition. In cases where the visa number is current, whether family or employment based application, the adjustment of status (AOS) application can be filed concurrently with the petition. Another benefit is that the applicant can simultaneously apply for Advanced Parole (travel documents) and Work Authorization (EAD), allowing the alien to travel and work during the pendency of their application.  Adjustment of status signifies that the foreign national has reached the final stage in order to attain a Green Card.

If the foreign national does not reside in the U.S, he/she must apply at a U.S. consulate abroad.

EB1-1, Extraordinary Ability

In order to be eligible to apply for this EB1 category, an alien must have an extraordinary ability in science, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and they seek entry to continue work in this area which will substantially benefit the U.S. The applicant does not require an employer and they can self-petition.

“Sustained or international acclaim” by the applicant must be documented by any of the three following requirements:

  1. Receipt of lesser nationally or internationally recognized prizes or awards,
  2. Membership in association in their field for which classification is sought,
  3. Published material about the person in professional or major trade publications or other major media,
  4. Participation as a judge of the work of others,
  5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance,
  6. Authorship of scholarly articles in the field,
  7. Artistic exhibitions or showcases,
  8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation,
  9. High salary or remuneration in relation to others in the field,
  10. Commercial success in the performing arts.
EB1-3, Executive/Manager

EB1-3 immigrant status is designated for multinational executives and managers who have worked aboard for at least one year as an executive or manager for an international company. They must be coming to the U.S. to work for the same company in a managerial or executive position.

There is no requirement to complete a labor certification. However, the U.S. business needs to be in existence for at least one year before filing the petition.

The type of evidence required includes a statement from U.S. employer concerning the person’s employment with the company in one of the past three years and that U.S. employer has been doing business for one year. The employer must also provide a job offer letter describing the duties of the position and the capacity in which the person will be employed. Furthermore, documentation showing the company abroad is operating must be submitted. Most importantly you must show that the company is active, conducting substantial business, and truly needs an executive or manager.

EB5 Visa

To qualify, one must invest $1 million, or in certain circumstance $500,000, in a new commercial enterprise that employs full-time 10 workers, and also is employed in a daily management or policy formation role. If approved, one will become a Legal Permanent Resident, subject to the 2 years conditional residency period.

The investment can be completed through the Basic Program (refer to the requirements below) or Regional Center Pilot Program.

EB-5 eligibility requirements:

  • The capital investment is in a new commercial enterprise;
  • The investment capital was obtained by the alien through lawful means;
  • The required amount of capital has been fully committed to the new commercial enterprise;
  • The new commercial enterprise will create not fewer than 10 full-time positions;
  • The alien investor will be engaged in the management of the new commercial enterprise.

Regional Center Pilot Program:

This program allows the investor to invest through the assistance of a regional center as opposed to investing in a new commercial enterprise. There are over 20 government approved regional centers throughout the United States, that invest in projects such as commercial centers, hotels, restaurants, office buildings, stadiums, etc. If the investor decides to go through a regional center, the rules regarding job creation are much more relaxed because the centers themselves will be responsible for indirect job creation.

NIW, National Interest Waiver

The National Interest Waiver, or NIW, is an employment-based second preference (EB-2) petition. It derives its name because it asks the otherwise required labor certification required to be waived in the U.S. national interest.

A person may qualify for the waiver if they can show their work will be in the national interest of the U.S. The burden of proof in National Interest Waiver cases is on the petitioner – which can be either the employer or applicant.

A person qualifies if he or she is a professional who holds either an advanced degrees or is considered possessing exceptional ability in the sciences, business or arts.

The AAO precedent case, Matter of Dhanasar, has set forth several factors that must be considered when evaluating a request for a NIW. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under this new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:

  1. that the foreign national’s proposed endeavor has both substantial merit and national importance;
  2. that the foreign national is well positioned to advance the proposed endeavor; and
  3. that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.

USCIS has granted NIW (EB2) to mathematicians, physics researchers, environmental scientists, artists, civil engineers, geologists, musical composers, electrical engineers, biomedical researchers, medical physicist, and several other professionals.

Immigration options for battered or abused spouses

Physical and emotional abuse between married couples is not only a sensitive subject but it can become rather complex when the party being subjected to the abuse is an immigrant. As a result, in 1994, Congress passed legislation known as the Violence Against Women’s Act (VAWA) creating special provisions in order to protect battered noncitizens. Under VAWA, battered non-citizens who are married to, or recently divorced from United States Citizens or Lawful Permanent Residents can, in certain circumstances, self-petition (without the help or knowledge of their abusive spouse) to obtain Lawful Permanent Residence (Green Card).

Generally, there are certain requirements that must be demonstrated to be eligible for a VAWA self-petition. First, there must have been a relationship between the abusive U.S. citizen or Lawful Permanent Resident and the applicant, such as a spouse or children and in some circumstances even parents. Second, the abuser must have subjected the applicant to a battery or extreme cruelty. Also, the couple must have entered into a good faith marriage and not for purposes of obtaining immigration status. Further, the applicant must demonstrate they have good moral character, which can be established through criminal records that the applicant may or may not have. The applicant also needs to demonstrate that they reside in the United States and were living with their abuser. 

VAWA self-petitions apply to both males and females if, at a minimum, the above criteria are met.

Asylum

Another route to a Green Card may be achieved if you qualify for asylum. Thousands of people come to the U.S. every year seeking protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, and/or for their political opinion.

Within one year of arriving to the U.S, you can apply for asylum by filing a Form I-589 and there is no filing fee. You can include your spouse and children under 21 at the time you file the applicant or any time before a final decision is made on your case. You may apply for work authorization if 150 days have passed since you filed your asylum application and no decision has been made on your application. To apply for work authorization, you must complete a Form I-765 (EAD) and there is no fee if it is the first time you are applying for the first time.

After one year of being granted asylum, you may apply for a permanent residency (green card).  You must file a separate application on Form I-485 for yourself and each derivative family member. Even though it is not required to apply for a green card, it may be in your best interest to do so in case such as where country conditions change in your home country and you no longer meet the definition of an asylee due to changed circumstances.