This is an overview of the green card petition process. A green card holder is known as a Legal Permanent Resident (LPR) and has lawful immigrant status to reside in the United States permanently.
There are a number of ways that foreign nationals get immigrant visas (commonly known as green cards). Some will get the green card through marriage or another family relationship. Some will obtain it through employment, such as through a labor certification process. This firm processes immigrant visas under the category of Aliens of Extraordinary Ability. This is known as the EB-1 category.
The EB-1 has two parts. The first part is always the same. It is called the I-140 or immigrant petition. The I-140 in turn has three elements (subparts). The alien must satisfy all three elements (subparts) to have the I-140 approved by USCIS. The second part applies only if the first part is approved. Once the I-140 is approved the alien can either apply to adjust their status in the US, or they can apply to have an interview at a US Consulate. There are pros and cons for both adjustment of status and consular processing.
The I-140 requires that the alien satisfy all three of the following:
If an applicant has won a major international award such as a Nobel Prize, then they should qualify for permanent residency under the Extraordinary Ability category.
If they do not have an award at this level they can satisfy three of the ten categories listed below.
An applicant can provide documentation of three of the following.
If you are able to show that you meet at least 3 of the above regulatory criteria, USCIS will then review all of the evidence in the record in its totality to determine if it is more likely than not that you have sustained national or international acclaim and are one of that small percentage who has risen to the very top of the field of endeavor.
To satisfy the Final Merits Determination the alien should put their best application together so that immigration can review all of the evidence and approve the case. This part is relatively subjective and USCIS has great discretion in determining whether an alien is successful. The stronger the evidence is in terms of an alien’s achievements in the field compared to others, the more efficiently and accurately USCIS can process the petition. Ultimately it is this risk of failing the Final Merits Determination that can foil what would otherwise be a successful application.
To some extent a letter or memo from the attorney can help explain why the alien qualifies to be approved. Realistically, however, the alien should understand that there is risk in this type of application and that even if they feel they clearly qualify in the I-140 Subpart A they nevertheless could be unsuccessful in Subpart B.
The alien must prove they are coming to the US to continue to work in their field and that they will not become a public charge.
Evidence of Part C can include: Letters from current or prospective employers; documents evidencing prearranged commitments (such as contracts); and a statement from the alien detailing their plans on how they intend to continue working in their field in the United States.
When USCIS receives the file they will either approve the application, deny the application or ask for more information so that they can either approve or deny the application. The request for more information is called a Request for Evidence. If the application is approved the applicant can continue to the second part of the application.
Part II: After the I-140 is approved the alien will obtain permanent residency one of two ways: Adjustment of Status or Consular Processing
Adjustment of Status requires that the alien file the application while they are in the U.S. in valid nonimmigrant status. That means the applicant should have an unexpired nonimmigrant visa in order to file the application. It also means that they should be able to document all of their prior visas, or visa status in the United States and be able to prove that they were never out of status.
The law allows adjustment of status when the applicant has never been out of status for even one day. It may be possible that a person holds a valid visa but that at some point in the past they stayed in the U.S. longer then their visa allowed or had another type of status violation. Unless an applicant can document their entire visa history it is the opinion of this firm that they can suffer severe delays in their adjustment of status. In fact the process can ultimately be denied. In the opinion of this firm, applicants who have been in the U.S. for many years or for those that have not kept copies of all of their immigration paperwork should not attempt Adjustment of Status. They should instead seek to process the second part of their visa at the U.S. consulate in their home country.
An advantage of Adjustment of Status is that once the applicant files to adjust their status they no longer have their former status and now have the new status called “Pending Adjustment of Status.” So, for example, if an applicant has an O-1 visa that is expiring in March and they file their application a month earlier, in February, then they would not need to renew their O-1 visa status so long as they filed in a timely manner.
When an applicant files adjustment of status they file three applications. One application is called the Application to Adjust Status, or the I-485. The other applications are called Application for Employment Authorization (I-765) and Application for Advanced Parole (I-131). Once the I-131 and I-765 applications are approved the applicant will be free to travel outside of the U.S. and work in the U.S. for whomever they would like. Note that until the advanced parole card is received the applicant cannot travel outside of the U.S. If the applicant leaves the US before they receive their advanced parole document their application is considered abandoned. Note as well that there is a black out period of anywhere from three to approximately six months from when an applicant filed their adjustment of status before they can normally travel. Thus applicants who have extensive travel commitments, or those who have relatives in poor health should not apply for adjustment of status but should instead apply for consular processing.
Note that Adjustment of Status requires that aliens have a medical exam with a doctor called a Civil Surgeon. The Civil Surgeon is on a list of doctors approved by USCIS.
Adjustment of Status applicants should have certified copies or originals of birth documents, any marriage certificates, divorce decrees, military records or evidence of arrests. Adjustment of Status applicants should be able to document all of their stays in the US prior to filing the application.
The second option for finishing the green card process is called “consular processing.” The end result is an interview at the U.S. Consulate in the home country of the applicant. Note that there is generally only one consulate per country that handles the applications. So, for example, in Germany all interviews for immigrant visas are held in Frankfurt. The process is as follows: After the approval of the I-140 (the first part of the application) USCIS will forward the application to the National Visa Center. This can take from 1 to 3 months, or possibly longer. After the National Visa Center receives the application they will make a fee request by email. The applicant will pay that fee from their bank account and can then move on to the next phase, which is submitting their DS-260 consular form and their civil documents. The civil documents will include documents such as birth certificates, marriage certificates, divorce decrees, the birth certificates of any children, a copy of their passport biographical (photo) page and any evidence of military service. If the applicant has ever been arrested they will need evidence of the disposition of the arrest.
After submitting the civil documents and form DS-260 the National Visa Center has to complete the processing. When processing is complete they will notify the consulate to schedule the interview. In general the processing time from USCIS approval of the I-140 until the immigrant interview is normally within the range of six to eight months. The time it can take to receive the immigrant visa after the interview varies from consulate to consulate, but it is often a week or so.
After applicants receive their immigrant visa they will pay an additional fee called the ELIS fee. This should be paid before the applicant enters the U.S. When the consulate issues the visa they also send out a sealed envelope. The applicant will present the unopened, sealed envelope along with the immigrant visa to the USCIS officer in the U.S. That officer will update the computer and stamp the passport. At that point the immigrant is a permanent resident of the U.S., even though the green card itself—evidence of that status—won’t be mailed for another month or so.
One advantage of consular processing is that the timing is very predictable. As opposed to adjustment of status, which can take between four months and three years, or even longer on occasion, the consular processing timeline is very consistent.
It should be noted that for consular processing the applicant must maintain nonimmigrant visa status until they leave the U.S. to have their immigrant interview. An applicant can travel freely so long as their current nonimmigrant visa allows it, but with consular processing the immigrant visa status only begins once an applicant has his consular interview and re-enters the U.S. as a permanent resident. So, for example, an O-1 visa holder who has not yet been scheduled for his final interview may be faced with either extending his O-1 visa in the U.S. to maintain his status, or, in some instances, leaving the U.S. to obtain one more O-1 visa even though he might be scheduled for his immigrant visa a few months later.
If the applicant applies for consular processing the medical exam must take place before the interview. Applicants need to either have the medical exam on a prior trip to their country or travel to the country with enough time to process the medical exam before the interview.
This is an overview of the green card petition process. A green card holder is known as a Legal Permanent Resident (LPR) and has lawful immigrant status to reside in the United States permanently.
There are a number of ways that foreign nationals get immigrant visas (commonly known as green cards). Some will get the green card through marriage or another family relationship. Some will obtain it through employment, such as through a labor certification process. This firm processes immigrant visas under the category of Aliens of Extraordinary Ability. This is known as the EB-1 category.
The EB-1 has two parts. The first part is always the same. It is called the I-140 or immigrant petition. The I-140 in turn has three elements (subparts). The alien must satisfy all three elements (subparts) to have the I-140 approved by USCIS. The second part applies only if the first part is approved. Once the I-140 is approved the alien can either apply to adjust their status in the US, or they can apply to have an interview at a US Consulate. There are pros and cons for both adjustment of status and consular processing.
The I-140 requires that the alien satisfy all three of the following:
If an applicant has won a major international award such as a Nobel Prize, then they should qualify for permanent residency under the Extraordinary Ability category.
If they do not have an award at this level they can satisfy three of the ten categories listed below.
An applicant can provide documentation of three of the following.
If you are able to show that you meet at least 3 of the above regulatory criteria, USCIS will then review all of the evidence in the record in its totality to determine if it is more likely than not that you have sustained national or international acclaim and are one of that small percentage who has risen to the very top of the field of endeavor.
To satisfy the Final Merits Determination the alien should put their best application together so that immigration can review all of the evidence and approve the case. This part is relatively subjective and USCIS has great discretion in determining whether an alien is successful. The stronger the evidence is in terms of an alien’s achievements in the field compared to others, the more efficiently and accurately USCIS can process the petition. Ultimately it is this risk of failing the Final Merits Determination that can foil what would otherwise be a successful application.
To some extent a letter or memo from the attorney can help explain why the alien qualifies to be approved. Realistically, however, the alien should understand that there is risk in this type of application and that even if they feel they clearly qualify in the I-140 Subpart A they nevertheless could be unsuccessful in Subpart B.
The alien must prove they are coming to the US to continue to work in their field and that they will not become a public charge.
Evidence of Part C can include: Letters from current or prospective employers; documents evidencing prearranged commitments (such as contracts); and a statement from the alien detailing their plans on how they intend to continue working in their field in the United States.
When USCIS receives the file they will either approve the application, deny the application or ask for more information so that they can either approve or deny the application. The request for more information is called a Request for Evidence. If the application is approved the applicant can continue to the second part of the application.
Part II: After the I-140 is approved the alien will obtain permanent residency one of two ways: Adjustment of Status or Consular Processing.
Adjustment of Status requires that the alien file the application while they are in the U.S. in valid nonimmigrant status. That means the applicant should have an unexpired nonimmigrant visa in order to file the application. It also means that they should be able to document all of their prior visas, or visa status in the United States and be able to prove that they were never out of status.
The law allows adjustment of status when the applicant has never been out of status for even one day. It may be possible that a person holds a valid visa but that at some point in the past they stayed in the U.S. longer then their visa allowed or had another type of status violation. Unless an applicant can document their entire visa history it is the opinion of this firm that they can suffer severe delays in their adjustment of status. In fact the process can ultimately be denied. In the opinion of this firm, applicants who have been in the U.S. for many years or for those that have not kept copies of all of their immigration paperwork should not attempt Adjustment of Status. They should instead seek to process the second part of their visa at the U.S. consulate in their home country.
An advantage of Adjustment of Status is that once the applicant files to adjust their status they no longer have their former status and now have the new status called “Pending Adjustment of Status.” So, for example, if an applicant has an O-1 visa that is expiring in March and they file their application a month earlier, in February, then they would not need to renew their O-1 visa status so long as they filed in a timely manner.
When an applicant files adjustment of status they file three applications. One application is called the Application to Adjust Status, or the I-485. The other applications are called Application for Employment Authorization (I-765) and Application for Advanced Parole (I-131). Once the I-131 and I-765 applications are approved the applicant will be free to travel outside of the U.S. and work in the U.S. for whomever they would like. Note that until the advanced parole card is received the applicant cannot travel outside of the U.S. If the applicant leaves the US before they receive their advanced parole document their application is considered abandoned. Note as well that there is a black out period of anywhere from three to approximately six months from when an applicant filed their adjustment of status before they can normally travel. Thus applicants who have extensive travel commitments, or those who have relatives in poor health should not apply for adjustment of status but should instead apply for consular processing.
Note that Adjustment of Status requires that aliens have a medical exam with a doctor called a Civil Surgeon. The Civil Surgeon is on a list of doctors approved by USCIS.
Adjustment of Status applicants should have certified copies or originals of birth documents, any marriage certificates, divorce decrees, military records or evidence of arrests. Adjustment of Status applicants should be able to document all of their stays in the US prior to filing the application.
The second option for finishing the green card process is called “consular processing.” The end result is an interview at the U.S. Consulate in the home country of the applicant. Note that there is generally only one consulate per country that handles the applications. So, for example, in Germany all interviews for immigrant visas are held in Frankfurt. The process is as follows: After the approval of the I-140 (the first part of the application) USCIS will forward the application to the National Visa Center. This can take from 1 to 3 months, or possibly longer. After the National Visa Center receives the application they will make a fee request by email. The applicant will pay that fee from their bank account and can then move on to the next phase, which is submitting their DS-260 consular form and their civil documents. The civil documents will include documents such as birth certificates, marriage certificates, divorce decrees, the birth certificates of any children, a copy of their passport biographical (photo) page and any evidence of military service. If the applicant has ever been arrested they will need evidence of the disposition of the arrest.
After submitting the civil documents and form DS-260 the National Visa Center has to complete the processing. When processing is complete they will notify the consulate to schedule the interview. In general the processing time from USCIS approval of the I-140 until the immigrant interview is normally within the range of six to eight months. The time it can take to receive the immigrant visa after the interview varies from consulate to consulate, but it is often a week or so.
After applicants receive their immigrant visa they will pay an additional fee called the ELIS fee. This should be paid before the applicant enters the U.S. When the consulate issues the visa they also send out a sealed envelope. The applicant will present the unopened, sealed envelope along with the immigrant visa to the USCIS officer in the U.S. That officer will update the computer and stamp the passport. At that point the immigrant is a permanent resident of the U.S., even though the green card itself—evidence of that status—won’t be mailed for another month or so.
One advantage of consular processing is that the timing is very predictable. As opposed to adjustment of status, which can take between four months and three years, or even longer on occasion, the consular processing timeline is very consistent.
It should be noted that for consular processing the applicant must maintain nonimmigrant visa status until they leave the U.S. to have their immigrant interview. An applicant can travel freely so long as their current nonimmigrant visa allows it, but with consular processing the immigrant visa status only begins once an applicant has his consular interview and re-enters the U.S. as a permanent resident. So, for example, an O-1 visa holder who has not yet been scheduled for his final interview may be faced with either extending his O-1 visa in the U.S. to maintain his status, or, in some instances, leaving the U.S. to obtain one more O-1 visa even though he might be scheduled for his immigrant visa a few months later.
If the applicant applies for consular processing the medical exam must take place before the interview. Applicants need to either have the medical exam on a prior trip to their country or travel to the country with enough time to process the medical exam before the interview.