The Application Process for Permanent Residence in the United States of AmericaWritten by Susan V. Perez
How does one become a green card holder through a family member?
The first step in the process is filing the Petition for Alien Relative (Form I-130) and its supporting documents. The petition must establish that the petitioner is either a U.S. citizen (USC), a lawful permanent resident (LPR), or a U.S. national and the claimed relationship to the alien beneficiary is a legally qualifying one. Spouses, children, parents and siblings of the petitioner are the only qualifying relatives for an I-130 petition. A USC or LPR cannot file a separate I-130 for his or her grandson, niece or nephew unless they are adopted.
Who may be petitioned in the I-130 petition?
Number one in the list are Immediate Relatives, which are the spouse, parent, and unmarried children under 21 years old of the petitioning USC. All other qualifying relationships fall within the preference category such as: 1) F-1 or unmarried sons and daughters (over 21 years old) of USC; 2) F-2A or spouses and children (unmarried and under 21 years old) of LPR; 3) F-2B or unmarried sons and daughters (over 21 years old) of LPR; 4) F-3 or married sons and daughters of USC; and 5) F-4 or brothers and sisters of USC. The intending immigrant is called the beneficiary. The term “derivative” includes the spouse and unmarried children under 21 of the principal beneficiary in the preference category.
For example, Maria is married and has two minor children. Maria’s USC father filed an I-30 on behalf of Maria. Maria is the principal beneficiary under the F-3 category while Maria’s husband and minor children are derivative beneficiaries. Maria’s USC father needs to file one Form I-130 only and need not file a separate petition for the derivative beneficiaries. When Maria’s visa becomes available, the derivative beneficiaries can immigrate with Maria provided they continue to have that relationship at the time Maria immigrates and at the time the derivative beneficiaries immigrate. If the minor children are over 21 years old by the time Maria’s visa becomes available, they can no longer immigrate with Maria subject to the rules on the Child Status Protection Act (CSPA).
Different rules apply in the case of immediate relatives. The petitioner needs to file separate petitions for the immediate relative and derivatives. For example, Maria has a U.S. citizen son. The USC son must file separate petitions for Maria, her husband, and children. If the husband does not qualify as stepparent, he should wait until Maria gets her LPR status.
Where should one file the I-130 Petition?
The place of filing depends on the residence of the petitioner and beneficiary. If the petitioner and alien beneficiary are both residing abroad, they may file the I-130 petition with the nearest U.S. consulate or embassy. This applies to USC’s petition for his or her spouse or children. If the petitioner resides in the United States, the I-130 petition is filed with the Chicago lockbox. If the beneficiary resides abroad, the approved petition will be forwarded to the National Visa Center (NVC). The NVC will then transmit the petition to the appropriate U.S. consulate once the priority date is current. If the beneficiary resides in the United States and the I-130 petition is filed with adjustment of status, the USCIS retains the file and the local USCIS office will adjudicate the adjustment of status.
The second step in the process is the interview.
If the beneficiary is residing abroad, the interview is conducted at the consulate. In the case of marriage petition, the interview is conducted to determine the validity of marriage. The parties should be ready to prove the relationship through pictures, letters, and affidavits of friends and relatives. If the beneficiary is residing in the United States, proof that the parties are living together and of commingling of funds such as joint lease contract, joint bank account, and joint life, health and auto insurance. Situations that may raise suspicions that the marriage is fraudulent include: big age differences and the fact the parties are not living together. The interview is not as difficult when the qualifying relationship is parent-child.
The third step is the adjustment of status or consular processing.
The USCIS or consular officer will determine if the applicant is eligible to adjust status or obtain a visa. If the applicant entered the United States without inspection, committed a crime, used illegal drugs, or made false claim to U.S. citizenship, he or she will not be eligible to adjust or get a visa unless he or she applies for a waiver. In the case of false claim to citizenship, a waiver is generally not available.
The fourth step is the inspection and admission by the Customs and Border Protection (CBP).
For applicants who received their immigrant visa at the consulate, the last and final step is presenting themselves at the port of entry for inspection and admission. The fact that the alien is holding an immigrant visa is no guarantee that he or she will be allowed entry to the United States. The CBP has the right to make a separate determination that the applicant is eligible for admission to the United States. The alien must remain eligible for admission as an immigrant at the time of entry to the United States. If the intending immigrant’s visa is based on marriage, he or she must remain married to the petitioner at the time of entry. If the alien is holding a visa as an unmarried son of a USC, he or she must remain unmarried at the time of entry. If the intending immigrant commits a crime after his or her visa was issued, he or she may be denied admission to the United States.