Family and Employment-Based U.S. Immigration Visas

Family Petitions and Adjustment of Status

Certain individuals are able to receive their Green Cards, or lawful permanent residency status, by adjusting their status through family members who are already lawful permanent residents or citizens of the United States.

You may be eligible for a green card through the family petition process if you are:

  • an immediate relative of a U.S. citizen (including spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older;
  • a family member of a U.S. citizen who falls into a preference category (including unmarried sons or daughters over the age of 21, children of any age, and brothers and sisters of U.S. citizen petitioners 21 years or older;
  • family members of a green card holder, lawful permanent resident, (including spouses and unmarried children of the sponsoring green card holder);
  • members of a special category such as battered spouse or child, a K non-immigrant fiancé, a V non-immigrant, a person born to a foreign diplomat in the United States, or a widow of a U.S. citizen;

The process for applying for a green card depends on which of the eligibility categories the applicant falls under, and is usually involves the filing of an I-130 petition for Alien Relative along with the filing of an I-485 Application to Register Permanent Residence or Adjust Status.

One can obtain a green card from within the United States through United States Citizenship and Immigration Services, or from outside of the United States through the Department of State by a process known as Consular Processing.

For more information on how to obtain your lawful permanent residency through petition by a US citizen or resident family member, please contact one of the experienced immigration attorneys at Rose Law Group, P.C.

K Visa: Fiancée Visa

A K-1 Nonimmigrant Visa, or Fiancée Visa, is available for United States citizens who wish to apply for permission for their intended foreign national spouse to enter the United States prior to the actual marriage.

The requirements for a K-1 Visa are as follows:

  • That the Petitioner is a U.S. Citizen;
  • That the Petitioner intends to marry the foreign national fiancée within 90 days of him/her entering the United States
  • That both parties are free to marry and any previous marriage has been legally terminated (by divorce, death, or annulment)
  • That the Petitioner and the Fiancée met each other in person at least once within the two years prior to filing the petition. However there are two exceptions to this rule, both of which require a waiver:
    • If the requirement to meet in person violates strict and long established customs of either party’s foreign culture or social practice, or
    • If you prove that the requirement to have met in person would result in extreme hardship to the petitioner.

Once the K-1 Visa is issued, the Fiancée has permission to enter the United States, and the marriage to the petitioner must take place within 90 days. The Fiancée is entitled to work authorization after entering the United States through the filing of an I-765. After the marriage, the US Citizen Spouse may file for a Green Card, or lawful permanent residency, for the foreign-born spouse.

K-2 Non-immigrant Visa (for Dependents)

If the foreign-born Fiancée has children who are under 21 and unmarried at the time of filing, they may be eligible for a K-2 Visa to accompany their parent to the United States.

Consular Processing for Immigrant Visas

A person who is the beneficiary of an approved immigrant petition and has an immigrant visa immediately available to them is eligible to apply for consular processing at a U.S. Department of State consulate office abroad, in order to receive an immigrant visa to be admitted to the United States and become a lawful permanent resident. This process or pathway to the green card from abroad is known as “consular processing.”

Steps for Consular Processing

The first step in consular processing is to determine if you fit into a specific immigrant category. Most immigrants become eligible for a green card (permanent residence) through a petition filed on your behalf by a family member or employer. Others become permanent residents through first obtaining refugee or asylum status, or through a number of other special provisions.

When the category of eligibility is determined, then a person will need to have an immigrant petition filed on their behalf.

Family Based

Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130 Petition for Alien Relative in order to then consular process.

Employment Based

Employment based categories require an intending U.S. employer to file a Form I-140 Petition for Alien Worker. However, certain foreign entrepreneurs who intend to invest significant amounts of capital into a business venture in the United States may file Form I-526, Immigrant Petition by Alien Entrepreneur on their own behalf.

Special Classes of Immigrants

In some cases, certain immigrants may file a Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant, or in some cases may have one filed on their behalf.

Humanitarian Programs

Most humanitarian programs do not require an underlying petition, although individuals may need to meet additional requirements before they can adjust status.

Although immigrant petitions are filed with USCIS, in some cases, an I-130 petition may be filed for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. Situations where this may be applicable include:

  • If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months;
  • Members of the military;
  • Emergency situations;
  • Situations involving the health or safety of the petitioner;
  • When in the national interests of the United States

Please check with the consulate before submitting a petition or consult an experienced immigration attorney such as the team at Rose Law Group, P.C.

Filing and Waiting for Decision on Petition

USCIS will then notify the petitioner of its decision, if granted, in the form of an approval notice. If the petition is denied, the notice will include the reasons for denying the petition and any rights to appeal the decision. If the petition is approved and if you are the beneficiary of the petition and living outside the United States or living in the United States, but choose to apply for your immigrant visa abroad, USCIS will then send the approved petition to the Department of State’s National Visa Center (NVC), where it will remain until an immigrant visa number is available. 

Notification from National Visa Center

The National Visa Center is responsible for the collection of visa application fees and supporting documents. It will notify the petitioner and beneficiary when the visa petition is received and again when an immigrant visa number is about to become available. The National Visa Center will also notify the petitioner and beneficiary when they must submit immigrant visa processing fees and when and what type of supporting documentation must be submitted.

Scheduling Appointment Abroad

Once a visa is available or a beneficiary’s priority date is current (earlier than the cut-off date listed in the monthly Visa Bulletin), the Consular Office will schedule the applicant for an interview. The consular office will complete processing of the applicant’s case and decide if the beneficiary is eligible for an immigrant visa.

Returning to the United States After Immigrant Visa is Granted

If a person is granted an immigrant visa, the consular officer will give them a packet of information. This packet is known as a “Visa Packet’. Upon return to the United States, the Visa Packet should be presented to the Customs and Border Protection official at the port of entry. If all goes well and you are found admissible to the United States, you will be admitted as a lawful permanent resident of the United States, which gives the authority to live and work in the United States permanently.

Receiving Your Green Card

The green card will be mailed after the immigrant visa is granted and you return to the United States. If the green card is not received within 45 days of return, call the USCIS National Customer Service Center at 1-800-375-5283 or visit your local USCIS office by making an InfoPass appointment.

Consular Processing for Non-Immigrant Visas

Consular Processing is also available to those outside of the United States who wish to enter on various types of temporary, or non-immigrant visas.

The Form DS-160, Online NonImmigrant Visa Application, is an electronically submitted application filed with the Department of State for non-immigrant visa applications to be processed by a U.S. consular officer.

Once submitted, along with filing fees and supporting documentation, a Consular Officer will review the information in the DS-160 to process the non-immigrant visa application and determine at a personal interview whether the non-immigrant visa shall be approved.

The DS-160 form is used for all non-immigrant visa categories, including those applying for fiancée or K Visas.

Print and Keep the DS-160 Barcode Page for confirmation, the full application is not needed at the interview.

Schedule a Visa Interview Appointment, this process will vary country by country.

Pay the visa application fee. Country specific instructions are available on the U.S embassy or consulate website for the country in which the person intends to consular process.

Waivers of Inadmissibility

I-601 Waiver of Unlawful Presence- Filed Abroad

Often times, a foreign national who is present in the United States without documentation marries a lawful permanent US resident or a US citizen. Naturally, the US spouse wishes to adjust or “fix” their alien spouse’s status so that they may be considered to be lawfully in the United States, so they can work, file taxes, and reside without fear of deportation.

However, because the foreign national spouse did not come to the United States with permission, they are deemed to be “inadmissible” to the United States. The US Citizenship and Nationality laws mandate that the person file a waiver of inadmissibility before they attain lawful status in the United States.

A United States citizen or lawful permanent resident who is married to an undocumented person may file an I-601 application for Waiver of Grounds of Inadmissibility to waive the “inadmissibility” or unlawful presence penalty.

The undocumented spouse is required to depart the country if they are currently in the United States, or file from abroad if they are currently residing outside of the U.S., and await the decision on their I-601 waiver of inadmissibility before they attain lawful status in the United States.

Along with filing the application, the supporting documentation, and paying the requisite fees, the US citizen spouse or resident spouse must demonstrate “extreme hardship” in order for the waiver to be granted.

Extreme hardship is not a rigid standard, but typically, the US citizen spouse or resident spouse filing the waiver must prove some sort of physical, financial, personal, educational, or economic hardship to a level that is considered extreme by the officer adjudicating the 601 Waiver before it is granted.

Because this is not a clearly defined, rigid standard, it is best to work with an experienced attorney in deciding whether to file an I-601 Waiver of Inadmissibility, whether the person needing the waiver even qualifies in the first place, and what to expect during the process.

The attorneys at Rose Law Group, P.C. can help you and your family decide whether you qualify for the waiver, what factors to highlight when filing the waiver, and what documentary evidence would be help the chances that the waiver is granted.

Furthermore, the attorney will document the extreme hardship in a cover letter, prepare the packet of evidence and relevant paperwork, explain the Immigration laws to the family and apply case law to the officer adjudicating the waiver, while guiding all parties through the process from start to finish.

I-601A Waiver of Unlawful Presence- “Stateside Waiver” Filed in United States

Obviously, the thought of a loved one departing the United States while awaiting the decision on an I-601 Waiver of Inadmissibility is not an ideal situation, especially when dividing a family that depends on one another while one member resides in a far-away place. It is for this reason that USCIS created the I-601A Application for Provisional Unlawful Presence Waiver.

If you are an immediate relative of a United States citizen, you are eligible to apply for the I-601A Provisional Unlawful Presence waiver before having to depart the United States to appear at a U.S Embassy or Consulate in order to apply for an immigrant visa, or “consular process.”

In this instance, an Immediate Relative is the Spouse, Parent, or Child (unmarried and under 21), of a U.S. Citizen who has already paid the Department of State immigrant visa processing fees associated with an approved family petition.

The advantage of the I-601A Application for Provisional Waiver of Unlawful Presence is that instead of departing the United States first and then filing the waiver from abroad, an immediate relative of a United States citizen is able to file their petition from within the United States, drastically cutting down the time they will have to be separated from their families.

The same “extreme hardship” standard of the I-601 Waiver of Unlawful Presence is required to be proven before the I-601A waiver is granted, and if the I-601A waiver is granted the intending immigrant is still required to depart the United States for the immigrant visa interview in the US Embassy or Consulate of their country of birth, but the advantage of filing the I-601A from within the United States and remaining with your family while the case is being decided is well worth it for many families.

The immigration attorneys at Rose Law Group, P.C. have handled hundreds of I-601A waiver cases with great success. While these cases are not guaranteed due to the “extreme hardship” element, the Amiri Law Offices, P.C. attorney will be able to analyze your family’s eligibility for the waiver, and explain the fees, timeframe, and elements required for the waiver to be granted. Contact us today for more information on the I-601A Application for Provisional Unlawful Presence Waiver today.

I-212 Waiver- Application for Permission to Reapply for Admission

If a person has been deported or removed from the United States, the consequence is that they are inadmissible, or not allowed to lawfully return, for a period of 5, 10, 20 years, or at times, for life depending on the circumstances of their deportation.

Sometimes, though, if the person would otherwise be eligible for a visa to the United States, then they can apply for a Form I-212 Waiver, or Application to Re-Apply for Admission into the United States after Deportation or Removal.

Scenarios for Number of Years a Person is Inadmissible:

  • Five-year Bar: This scenario is likely because a person was detained and removed (expedited removal) upon intending to enter the United States. In this case, a person would be subject to inadmissibility and barred to return to the U.S for a period of five years.
  • Ten-year Bar: This scenario mainly occurs when a person entered the U.S and was later placed into removal proceedings before an Immigration Judge, or, if a person came to the U.S. unlawfully, stayed for over a year, and then decided to depart to another country. In either of these instances, the person would be subject to inadmissibly for a period of ten years.
  • Twenty-year Bar: a person who has been deported from the U.S. more than one time is subject to a 20 year bar from the date they were deported.
  • Permanent Bar: If someone was convicted of an aggravated felony they are permanently deemed inadmissible barred from reapplying for lawful status without filing a 212 waiver. If someone aggregated more than one year of unlawful presence in the U.S. and then left, or was ordered removed from the U.S. and then re-entered illegally, they must wait ten years before filing the Form I-212.

If the 212 waiver, or application for permission to reapply for admission is granted, this does not automatically make the applicant a lawful US resident, or grant them any type of lawful status, it only means that they are now eligible to apply for a new visa.

It would be wise to discuss the case circumstances with an experienced immigration attorney at Rose Law Group, P.C. before deciding whether to file an I-212 waiver. Certain criminal convictions or certain scenarios may mean there is little to no probability that the waiver is granted. While some attorneys might gloss over this fact and charge thousands of dollars, our client first approach means we will ethically and honestly analyze your case before taking your money. We will explain the factors that lend towards a grant of the waiver and decide together with your family whether to file the waiver and what to expect along the way. 

Employment Based Immigration: Permanent Workers

Each year, around 140, 000 immigrant (permanent) visas are available for foreign nationals (and their spouses and children) who seek to immigrate based on their job skills.

There are five employment-based immigrant visa preference categories that are listed below, and a chart provided by United States Citizenship and Immigration Services, that lays out the differences between the five categories.

  • First Preference EB-1
  • Second Preference EB-2
  • Third Preference EB-3
  • Fourth Preference EB-4
  • Fifth Preference EB-5
Preferences General Description Labor Certification Required?
First Preference EB-1 This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. No
Second Preference EB-2 This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. Yes, unless applicant can obtain a national interest waiver (See the “Labor Certification” page for more waiver information.)
Third Preference EB-3 This preference is reserved for professionals, skilled workers, and other workers. (See Third Preference EB-3 page for further definition of these job classifications.) Yes
Fourth Preference EB-4 This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens. No
Fifth Preference EB-5 This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers. No

Some preferences require the applicant to already have a job offer from a U.S. employer, who can serve as your sponsor. Before the sponsor can submit your immigration application, or petition, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL).

The DOL labor certification has to verify that:

  • There are insufficient qualified, available, and willing U.S. workers to fill the position being offered at the prevailing wage and;
  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employment Based Immigration is a complex area of US Immigration law, and it is often very helpful to consult with an experienced immigration attorney prior to beginning the application process. The Immigration Attorneys at Rose Law Group, P.C. are available to provide more information on employment based immigration to the United States.

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