Immigrant Visa Processing: Obtaining Your Green Card.
The approval of an immigrant petition filed on behalf of an alien does not constitute a visa, nor does it allow, on its own, for admission into the United States on a permanent basis. Rather, such an approval establishes the eligibility of the alien to apply for an immigrant visa at a consulate or for Adjustment of Status, if in the U.S. A petition for an alien may be commenced by an immediate relative or other eligible family member, or by a sponsoring employer. Additionally, the alien may win the Diversity Visa Lottery and obtain what is equivalent to a petition approval. The immigration attorneys in our Michigan office can help you with the process of obtaining your Green Card following approval of an immigrant petition or obtaining an immigrant visa.
In many instances, particularly in the family-based petitions, an immigrant visa application cannot be utilized until the priority date is reached. In most cases, there are waiting lists for various categories that are subject to annual limitations or quotas. Much of the wait occurs after the immigrant visa has been approved.
Priority dates are based upon such factors as the basis for the petition, the status of the beneficiary, and the nationality of the parties. Immediate relatives of U.S. citizens are not subject to numeric limitations and annual quotas and can typically apply immediately. Other family members such as siblings of U.S. citizens and sons and daughters of permanent resident aliens may have to wait several years for their visas to become current. It is possible for these variables to change while the application is pending. In some instances, a petition may be "upgraded" when the petitioner attains status which allows faster availability of a visa for the beneficiary. This could occur, for example, when a lawful permanent resident filing for his or her unmarried son and daughter becomes a United States citizen. The petition is then said to be "automatically converted" from a second preference category into the first preference category, and the visa becomes available more quickly because of the change in preference categories.
Even after the visa becomes available, admission of an alien is not automatic. Rather, if the alien is outside the U.S., the alien must still prove at the beneficiary's home U.S. consulate that he is admissible into the United States. This must be done by proving that the grounds of exclusion do not apply. Those grounds include health-related grounds, grounds related to criminal, legal or immoral conduct, security-based exclusion, economic grounds of exclusion, aliens previously removed and unlawfully present. If any of those grounds exist, a competent immigration attorney should be consulted. Many times, waivers are available to overcome the grounds of inadmissibility. Assuming that the grounds of inadmissibility do not apply, and assuming that a visa is currently available, the petition can proceed through correspondence with the National Visa Center and the home consulate. Those packets include a combination of forms and questionnaires, asking for substantial biographic information, medical information, fingerprints, affidavits of support regarding public charge issues, and related materials. Finally, the applicant undergoes a visa appointment at the consulate after which typically an immigrant visa is issued to the alien unless grounds for denial exist. The immigrant alien must then travel to the U.S., and upon entry the alien will be granted the status of lawful permanent residence in the United States.
Sometimes, beneficiaries of immigrant petitions are already in the United States in non-immigrant status and can therefore apply for a change from non-immigrant to immigrant status while within the United States when the applicable visa is available. Those applicants do not need to undergo visa processing, but rather may elect "Adjustment of Status". The determination on whether Consular Processing or Adjustment of Status is appropriate depends on the individual circumstances of the alien. For example, even when an alien is in legal status in the U.S., s/he may wish to elect Consular Processing if they do not meet the requirements for Adjustment of Status. Factors to be considered include timing, work status (and anticipated work status), family relationships, immigration history, country of origin, and other related issues. Particular factors in an individual application can greatly impact the strategies involved throughout the application process.
