RSST Law Group represents individuals who wish to apply for permanent residence based on a qualifying relationship to a U.S. citizen or Lawful Permanent Resident family member. We also assist fiancés, fiancées, and spouses of U.S. citizens to enter the U.S. on K visas and thereafter apply to adjust status to permanent residence. In addition to straightforward cases, our attorneys have significant experience in successfully representing family-based applicants whose cases are complicated by past immigration difficulties, criminal concerns or other potential impediments to admission to the U.S. as a permanent resident.
In order to obtain permanent residence (i.e. a “green card”) in the United States, an individual must first have an immigrant visa number available to him or her. Under the family-based immigration system, U.S. citizens and permanent residents are able to sponsor certain family members for permanent residence. Family-sponsored visas are divided into two main categories: immediate relatives and preference immigrants, as detailed below. Immediate Relatives do not have to wait for a visa number to become available because there are an unlimited number. However, Congress has determined that only a certain number of people per category per year can obtain green cards through the family preference system, creating extremely lengthy backlogs. The filing of the I-130 petition sets the “priority date” for the individual, which determines when the person can apply for permanent residence, either by applying for an immigrant visa or for adjustment of status. The U.S. State Department publishes a Visa Bulletin each month which lists the priority dates that are current in each preference category. If an individual’s priority date is earlier than the date listed for his/her category and country, he or she is eligible to apply for permanent residence as detailed below.
Family-Based Visa Categories
- Available to fiancés and fiancées of U.S. citizens.
- Applicants must obtain an I-129F petition approved by USCIS, then apply for a single-entry K-1 visa stamp at the appropriate U.S. Embassy or Consulate abroad.
- After entry into the U.S., eligible to apply for an Employment Authorization Document (EAD) which provides general authorization to be employed in the United States based on the K-1 visa prior to applying for permanent residence. In practice, however, the EAD is rarely received prior to its expiration at the end of the K-1 validity period.
- Must marry the petitioning U.S. citizen fiancé(e) within 90 days of entry into the U.S. in K-1 status, and must then file for adjustment of status to lawful permanent residence (via Form I-485)
- A child of a K-1 applicant may enter the U.S. with a K-2 visa as long as the child is under 21 years of age. The K-2 visa holder must also apply for adjustment of status to permanent residence after the marriage of the K-1 parent, but will only be eligible to apply for permanent residence through that marriage while under the age of 21.
- Available to spouses of U.S. citizens who wish to enter the United States in order to complete the permanent residence process.
The U.S. citizen must first file an I-130 immigrant visa petition on behalf of his or her spouse. Thereafter, the foreign national spouse must obtain an approved I-129F from USCIS in order to apply for the K-3 visa through the U.S. Embassy or Consulate in the country in which the marriage took place (if the marriage took place outside the U.S.).
- Note that the State Department will only process the K-3 visa application if the I-130 petition remains pending; the application will not be processed after the I-130 is approved.
- Typically allows an individual to make multiple-entries into the U.S. and is initially valid for two years, during which time the visa holder must either apply for permanent residence or apply to extend the K-3 visa status.
- Eligible to apply for an Employment Authorization Document (EAD), which provides general employment authorization to work in the United States for the validity period of the visa.
- A child of a K-3 applicant may enter the U.S. with a K-4 visa as long as the child is under 21 years of age and was under the age of 18 at the time the K-3 parent and the U.S. citizen were married.
Includes the following:
- Spouses of U.S. citizens;
- Minor unmarried children (under 21 years old, including certain adopted children and orphans) of U.S. citizens;
- Parents of U.S. citizens who are over 21 years old;
- Spouses and minor, unmarried children of U.S. citizens who are victims of domestic violence;
- Spouses of deceased U.S. citizens who were married for at least two years at the time of the spouse's death and were not legally separated, provided that the spouse has not remarried and files an I-360 petition within two years of the death of the U.S. citizen.
- Unlimited number of immigrant visa numbers (i.e. no waiting list).
- No derivative beneficiaries of an immediate relative (see below); a separate petition must be filed for each immediate relative.
- Unmarried sons or daughters (over 21 years old) of U.S. citizens.
- Family 2A – Spouses and children of lawful permanent residents, including those who are victims of domestic violence.
- Family 2B – Unmarried sons or daughters (over 21 years old) of lawful permanent residents.
- Married sons and daughters of U.S. citizens.
- Brothers and sisters of U.S. citizens, 21 years of age or over.
- Spouses and children of the principal beneficiary under each preference category are entitled to the same status and order of consideration if accompanying or following to join the principal beneficiary. This does not apply to Immediate Relatives.
I-485 Application to Adjust Status to Permanent Residence
If an individual is in the United States, has always maintained valid status, and an immigrant visa number is currently available, he or she may file Form I-485 concurrently with the I-130 immigrant visa petition. In the case of an immediate relative, the individual is not required to be in valid immigration status, but must have an inspected entry (i.e. entry with a visa or other valid entry document), and can file the I-485 application concurrently with the I-130 petition. If an immigrant visa number is not available (i.e. when applying based on a preference category), the individual must wait until the USCIS Adjustment of Status filing chart indicates that the priority date is current for purposes of filing the I-485.
When the I-485 application is filed, applicants are also eligible to apply for an Employment Authorization Document (EAD) and Advance Parole (AP) travel document. An EAD allows for unrestricted work authorization in the United States. AP allows an adjustment of status applicant to travel abroad while his or her application is pending without abandoning the application. EAD and AP applications are usually concurrently-processed and issued as a single combined document, valid for one to two years, which can be renewed for as long as the I-485 application remains pending.
U.S. permanent resident status is granted upon the approval of the I-485 application.
If an individual is pursuing permanent residence from outside the United States, he or she may apply for an immigrant visa through consular processing. After the I-130 petition is approved, the National Visa Center is notified to begin the Consular Process by gathering fees, documentation and information. Once an immigrant visa number is available to an applicant (or will be soon), he or she is scheduled for an in-person interview at the designated Consulate, typically with only a few weeks’ notice. The immigrant visa application is generally adjudicated at the interview, or a request for additional information or evidence is made. Following approval of the application, the individual will receive an immigrant visa stamp in his/her passport, and must pay the USCIS Immigrant Fee online and enter the United States within six months of visa issuance. The individual does not become a permanent resident until he or she enters the United States using the immigrant visa.