Overview: Family-Based U.S. Permanent Residence February 11, 2010

A foreign national who is lawfully admitted to the United States (“U.S.”) as an immigrant is commonly referred to by different terms, including: immigrant, permanent resident, lawful permanent resident, green card holder, and numerous other labels. Although each of these names refers to the same legal status in the U.S., the term “Lawful Permanent Resident” (LPR) will be used to describe a foreign national who has been lawfully accorded the privilege of residing permanently in the U.S. as an immigrant.

U.S. permanent residence provides individuals with the right to live and work in the U.S. indefinitely.  If an individual wishes to become a U.S. citizen[1][2], he or she must first become a permanent resident. There are a variety of avenues through which an individual may become a permanent resident, although there are three principal ways of qualifying for LPR status:

• Family-based sponsorship;
• Employment sponsorship; or
• Public policy or humanitarian grounds.

Each of the three general ways of qualifying for lawful permanent residence includes very specific categories.  Family-based categories require a close family member who is a U.S. citizen or LPR to petition on behalf of the alien family member.  Employment-based categories relate to the kind of work that the alien will be coming to the U.S. to perform, and often (though not always) require a U.S. employer to petition on behalf of a foreign national employee.[2][3]   Public policy and humanitarian bases for LPR status have been developed to meet the needs of refugees and asylees as well as to achieve public policy goals (e.g., special legislation benefiting citizens of particular countries or allowing whistleblowers who facilitate law enforcement to become LPRs).

Diversity Visa Lottery

In addition to the three principal ways of qualifying for LPR status, individuals who are nationals of one of the countries identified as “low-admission” countries to the US may apply for permanent residence by entering the Diversity (“green card”) Lottery.  Please visit our Avani U.S. Diversity Lottery page for more information.

Immigration through a Family Member:

Historically, the ideal of keeping families together has been a significant principle of U.S. immigration law. It is important to note, however, that only certain family members may qualify to join their close relatives in the U.S., and that the U.S. government limits the annual number of family-based immigrant visas in certain categories.  These factors may prolong the time that it may take for prospective immigrants living abroad to join their U.S. citizen and permanent resident relatives, or the time it would take for such immigrants who are present in the U.S. to adjust status to that of an LPR.
An individual may sponsor a relative for lawful permanent residence if they have a qualifying familial relationship.  Qualifying familial relationships are divided into two basic categories, unlimited and limited, also known, respectively, as either immediate relatives of US citizens, or relatives who qualify under the family preference system.

UNLIMITED FAMILY-BASED:  Immediate Relatives of US Citizens

The Unlimited Family-Based category is available only to the following immediate relatives of US citizens (not to relatives of LPRs):

• Spouses
• Minor Children (unmarried and under the age of 21); and
• Parents of US citizens (the petitioning US citizen son or daughter must be at least age 21).

Visa numbers in the above categories are not numerically limited and thus are always available for individuals to apply for lawful permanent residence.

Special rules for recent marriages (Conditional Permanent Residence)

If the US citizen sponsor (the “petitioner”) and foreign spouse (the “beneficiary”) have been married for less than two years when the United States Citizenship and Immigration Service (“USCIS”) grants resident status, a special set of  “conditional residence” rules apply.  The USCIS grants resident status in one of two ways: by approving an application for adjustment of status or by admitting an alien to the US as a resident at a US port of entry or pre-flight inspection post. Thus, if the citizen and foreign spouse were married less than two years before resident status is granted, the foreign spouse becomes a conditional permanent resident.

A conditional permanent resident generally enjoys the same rights and privileges, and is subject to the same responsibilities and duties as all other LPRs, including the right to file petitions for qualifying relatives and to apply for naturalization, if otherwise eligible.  The primary difference, however, is that a conditional permanent resident must submit an application to remove the conditions on this status to the USCIS, during the 90 days before the second anniversary as a conditional resident (usually the expiration date on the alien spouse’s green card is the date of the second anniversary as a conditional resident).[3][4] If the application to remove the conditions on residence is not filed in a timely manner, the foreign national spouse could lose his/her conditional resident status and be removed from the US The couple may be required to attend a second interview with the USCIS in order to establish the validity of their marital relationship and to remove the conditions on the LPR status.[4][5] If a positive determination is made, the conditions on permanent residence are removed and the alien obtains unrestricted permanent residence.

Family-Based Categories with Numerical Limitations

Individuals may also apply for lawful permanent residence based on the following familial relationships:

Family First Preference (F1):

A US citizen may sponsor his/her unmarried sons and daughters (at least 21 years of age), and their children, if any, for lawful permanent residence.  The visas allocated for this category are 23,400 per year [5][6].

Family Second Preference (F2):

Lawful permanent residents may sponsor their spouses and unmarried children (under the age of 21) for LPR status.  This category is designated as the Second Preference 2A, and is allocated 87,900 visas per year. The Second Preference 2B category is reserved for lawful permanent residents who wish to sponsor their unmarried sons and daughters, 21 years of age or older, for LPR status.  The visas allocated for category 2B are 26,300 per year.[6][7] For a comparison of current visa availability for categories 2A and 2B, refer to the Department of State Visa Bulletin.

Family Third Preference (F3):

US citizens may sponsor for LPR status their married sons and daughters, and the spouses and children of the married sons and daughters, if applicable. The visas allocated for this category are 23,400 per year.[7][8]

Family Fourth Preference (F4):

Brothers and sisters of adult US citizens may be sponsored for LPR status. The visas allocated for this category are 65,000 per year.[8][9]

Numerical Limitations:

All of the above family preference categories have a backlog of individuals seeking permanent residence.  Whenever there are more qualified applicants for a category than there are available numbers, the category is considered “oversubscribed,” and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached.  The filing date of the family-based I-130 petition becomes the applicant’s priority date. In certain heavily oversubscribed categories, there may be a waiting period of more than 10 years before a priority date is reached.  For the latest priority dates and to check current availability, refer to the Department of State Visa Bulletin.  Note that references to oversubscribed countries in the Visa Bulletin refer to the immigrant visa beneficiary’s country of birth, not country of nationality.

Defining the Familial Relationships under Immigration Law:

SPOUSES:

In order to obtain immigration benefits available to a “spouse,” there must be a valid and subsisting marriage between the parties.  Generally, for immigration purposes, the law of the state/country where the marriage was performed or celebrated determines the validity of a marriage.  The USCIS also takes into account the following requirements when a foreign national wishes to secure immigration benefits from the marriage:

• Each party to the marriage must have been legally able to marry, e.g., not under-age or lacking mental capacity to marry;
• Any prior divorces of either party must have been valid and final; and
• The marriage must be recognized as legal in the place where it was performed.

Likewise, the two parties of a valid marriage must keep the marriage in existence in order to acquire the immigration benefits of the marriage.  Essentially, existence of a marriage does not mandate that the couple lives together or shares a household.  However, it is paramount that the couple must not have legally terminated the marriage. Thus, in states where a legal separation may be deemed as a divorce, it is likely that the marriage will no longer be considered “existing” in the eyes of the USCIS.  Note that the law of marriage and divorce in the various states of the US and in foreign nations may vary widely and often can be quite complex.  Thus, for answers to questions concerning the validity of a marriage, divorce or annulment, you are encouraged to retain an attorney with expertise in the law of the jurisdiction where the marriage, divorce or annulment has occurred or will take place.

In the event of an abusive situation in which the foreign national has suffered extreme emotional and/or physical abuse at the hands of his/her US citizen or LPR spouse, the USCIS has made certain provisions that permit self-petitioning for immigration status.  Under the Violence Against Women Act (VAWA) passed by Congress in 1994, and the Battered Immigrant Woman Protection Act of 2000 (BIWPA) the spouse (either male or female) and children of a US citizen or LPR may self-petition to obtain lawful permanent residence.  Visit the USCIS web site for detailed information regarding these provisions.

Marriages Not Recognized in Immigration Law:

Although some types of marriages are valid and recognized in the jurisdiction where the marriage took place, such marriages still may not be considered acceptable for US immigration benefits.

Marriage between persons of the same sex:

Presently, marriages of same-sex partners are not legally recognized in any of the 50 US states.  However, even if same-sex couples win the right to marry in any state, the marriage would still not be valid for immigration purposes because of a federal law passed in 1996 called the “Defense of Marriage Act” (DOMA).  The enactment proclaims that for federal purposes, including immigration, the US government will not recognize same-sex marriages.

Common law marriage:

If a man and a woman have lived together for a certain period of time and hold themselves out in public as “husband” and “wife,” file joint tax returns, or take other actions to suggest that they consider themselves to be married, etc., they may become common law spouses.  In a number of states, common law marriages are recognized. However, unless a common law marriage is recognized as legal in the jurisdiction of residence or last residence, it is not valid for US immigration benefits.

Customary marriage:

If a marriage is performed according to local custom, rather than according to legal proceeding of local civil authorities, it may not be accepted for immigration purposes.  However, if the civil authorities in the place where the marriage was performed recognize a customary marriage, it is considered valid for US immigration benefits.

Polygamous marriage:

If a US citizen or LPR has more than one spouse at the same time, the USCIS does not recognize the polygamous marriage as valid.  However, the beneficiaries of the first marriage of a polygamous family may not be denied their US immigration benefits if the benefits had been conferred prior to the second and subsequent polygamous marriage.

Incestuous marriage:

A marriage between close family members may be considered incestuous, depending on the degree of consanguinity. The validity of an incestuous marriage is determined by the law of the state where the parties intend to reside. In addition, if the incestuous marriage is regarded as a crime in the state of residence, the marriage is not acceptable for US immigration purposes.

Sham marriages:

If the USCIS determines that the marriage was entered into by the parties primarily to obtain US immigration benefits and without any intention to live together as husband and wife, LPR benefits will be denied.

Proxy marriage:

A marriage is considered to be a proxy marriage if the couple was not physically in the presence of each other for the ceremony.  Generally, a proxy marriage is not accepted under immigration law unless it is subsequently consummated.  However, if the sponsor is a US citizen, the foreign national beneficiary may be eligible for a K-1 fiancé visa.
Visit “How To Bring My Fiancé(e) to the US” for more information.

Recommended Documentation for Establishing the Right to US Permanent Residence Based upon Marriage to a US Citizen or Lawful Permanent Resident:

Given the USCIS’s concerns regarding the legitimacy of marital relationships leading to immigration benefits, the following list may prove beneficial in convincing the USCIS to reach a more prompt and favorable decision.  There is no minimum or maximum amount of documents that can be presented. An evaluation of the relevant facts in each case should lead to a determination of the actual documentation provided.  Documents referring to both spouses are particularly helpful.  Recommended documents may perhaps include, but are not limited to:

• A narrative by either spouse or both of them describing how, when, and where the couple met and describing key events in the relationship and what led up to the decision to be married;
• Correspondence to both spouses from family members and friends including wedding congratulatory cards, etc.;
• Evidence recognizing the pair as a married couple, such as invitations, cards, letters, season’s greetings, etc.;
• Photographs and correspondence between the married couple throughout the relationship, properly identified;
• Evidence of joint ownership of property such as house, car, furniture, etc.;
• Evidence of joint finances, such as joint bank accounts, insurance policies, retirement plans;
• Joint tax returns;
• Mortgages, leases, credit accounts, or other financial obligations undertaken jointly;
• Receipts showing joint obligations for housing and living expenses, such as rent, utilities, telephone, etc.;
• Birth certificates for children born of this relationship; and
• Any other information or documentation suggesting that the couple are husband and wife, and have formed a real economic and marital union, based on the traditional objects of matrimony such as love, companionship, mutual respect, etc., including recognition of these facts by family members.  Click here to review suggested Evidence of a bona fide marriage under family based green cards.

The documentation suggested above may be particularly helpful if the marriage took place less than two years ago, in which case the foreign national initially may be eligible for only conditional permanent residence.  As such, a second petition to remove the condition must be filed two years later.  It is highly recommended that similar types of documentation be gathered during the course of the two conditional years as well.

CHILDREN:

For the purposes of family-based immigration, a “child” is defined as follows:[9][10]

• A child born in wedlock;
• A stepchild, whether or not born out of wedlock, provided the child had not reached the age of 18 years at the time the marriage creating the status of stepchild occurred;
• A child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father (if the father has or had a bona fide parent-child relationship with the person);
• A child adopted while under the age of 16 years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years, provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under the Immigration and Nationality Act; or
• A child, under the age of 16 at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption to a US citizen.

The parent-child relationship must continue to exist at the time that immigration benefits are sought.  In most cases, a “child” for US immigrant visa purposes includes only an unmarried person under the age of 21.[10][11]

“Aging Out”

When a child is applying as the dependent of a parent, the child must remain a “child” under immigration law, up to and including the date that the final benefit is granted.  If the child becomes 21 years of age before the adjustment of status is completed, the child “ages out” and cannot become a permanent resident along with the principal applicant[11][12].

If you are an US citizen petitioner for your child, once your child turns 21 years of age, you do not need to file any new documentation to have your child changed to the first preference category.  It happens automatically on the child’s 21st birthday if the petition is still waiting adjudication for permanent residence.

If, however, you are a LPR or applicant for that status, and your child turns 21 before the case can be finalized, you must file a Relative Petition, for your son or daughter as soon as possible after you obtain LPR status.  This will establish a priority date for immigrant visa issuance for your son or daughter as a second preference immigrant.  There is a waiting list for visa numbers under the family-based second preference.  Filing as soon as possible will help assure the minimum wait for a visa number to become available.

Visit How do I Prevent My Child from Losing Benefits at Age 21 (“Aging Out”) for more information.

PARENTS:

In order to petition for a parent to obtain LPR status under the immediate relative category, the US citizen child petitioner must be at least 21 years old.  “Parent” means a parent who is such by reason of his or her relationship to a “child” within the INA statutory definition of the term, as outlined above.

THE FAMILY-BASED APPLICATION PROCESS:

Eligibility to Sponsor a Relative for Lawful Permanent Residence:

To be eligible to sponsor a relative to immigrate to the US, you must meet the following criteria:

• Proof of Citizenship or LPR status: You must be a citizen or lawful permanent resident of the US and be able to provide documentation verifying your status.  For US citizens, this would include a certified birth certificate, Proof of Citizenship, or a valid US passport.  To prove that you are a lawful permanent resident, you must submit your valid Form I-551, US Alien Registration Card (the “green card”).
• Affidavit of Support I-864 Form: To ensure that immigrants are not likely to rely on public benefits in the US, all sponsors must demonstrate that they meet minimum income requirements and can be financially responsible for the sponsored immigrants.  You must be able to demonstrate an income level at or above 125% of the federal poverty line, and certify that you can support your relative at 125% above the mandated poverty line.  In order to do this, you are required to complete the USCIS Affidavit of Support I-864 Form, and provide proof of current employment and copies of federal income tax returns for the three most recent tax years.
• Completion of USCIS Form I-130 Petition for Alien Relative: You must file this petition with the USCIS on behalf of a qualifying relative beneficiary, along with proof of the relationship (as detailed below).  The I-130 form contains specific instructions for filing.
• Proof of Relationship for US Citizens: If you are a US Citizen, you may petition for the following foreign relatives to immigrate to the US.  However, you must be able to provide proof of the relationship:
  • Husband or Wife: You must provide a certified copy of the relevant marriage certificate, and proof of termination of all prior marriages entered into by either party;
  • Unmarried child under 21 years old: You must provide a certified copy of the child’s birth certificate showing the names of both the mother and father, and the marriage certificate of the parents;
  • Unmarried son or daughter over 21: You must provide a certified copy of the son’s  or daughter’s birth certificate showing the names of both the mother and father, and the marriage certificate of the parents;
  • Married son or daughter of any age: You must provide a certified copy of your son’s or daughter’s birth certificate showing the names of both the mother and father, and the marriage certificate of the parents, along with a certified copy of the relevant marriage certificate of the child;
  • Brother or sister, if you are at least 21 years old: You must provide a certified copy of your birth certificate, and a certified copy of your brother or sister’s birth certificate, showing the names of both the mother and father, and the marriage certificate of your parents;
  • Parent, if you are at least 21 years old: You must submit a certified copy of your birth certificate showing the names of both natural parents, and the marriage certificate of your parents, if filing on behalf of your father;
  • Step-parent, if you are least 21 years old: You must submit certified copies of your birth certificate showing the names of your natural parents, and the marriage certificate of your natural parent to the step-parent.  Note: the marriage should have taken place prior to your 18th birthday, in order for the relationship of stepparent and stepchild to be considered valid under immigration law.
  • Adoptive parent or adoptive child: You must provide a certified copy of the adoption decree.  The adoption must have taken place while the child was under the age of 16 years, and the child must have been in the physical custody of the adopting parents for at least two years.  The child’s parents must be dead, proved missing, or have irrevocably surrendered the child for adoption.
• Form G-325A, Biographic Data Sheet, for both spouses when the petition is based on a spousal relationship (immediate relative or Second Preference).  Form G-325 is available for download from the USCIS web site.
• Two color photographs, for both spouses, when the petition is based on a spousal relationship (immediate relative or Second Preference).  See http://uscis.gov/graphics/formsfee/forms/forminfo.htm#Photos for photograph specifications.
• Filing Fee of $130.00. Please note that the USCIS updates its filing fees regularly so it is important to check http://uscis.gov/graphics/formsfee/forms/index.htm to verify the proper filing fee prior to filing.
• Proof of Relationship for Lawful Permanent Residents: If you are a lawful permanent resident, you may petition for the following foreign relatives to immigrate to the US.  You must be able to provide proof of the relationship:
  • Husband or Wife: You must provide a certified copy of the relevant marriage certificate, and proof of termination of all prior marriages entered into by either party;
  • Unmarried son or daughter of any age: You must provide a certified copy of your son or daughter’s birth certificate showing the names of both the mother and father, and the marriage certificate of the parents.

Application Procedure: Becoming a Permanent Resident While in the US

If you meet the qualifications for family-based permanent residence sponsorship, and you are presently residing in the US, you may be eligible to file the following forms with the USCIS:

• Form I-485 Application to Register Permanent Residence or Adjust Status, is submitted by the individual wishing to obtain LPR status (the “applicant”).  It is generally filed with supporting evidence, and may be filed in conjunction with several other applications or petitions.  Form I-485 and Form I-485 Supplement A is available from the USCIS web site.   NOTE:  Be sure to completely read the instructions provided with the Form I-485 before filing. As noted in the instructions, the individual wishing to qualify for lawful permanent resident status must be eligible for immigration and an immigrant visa must be “immediately available” to the alien. For example, if qualifying under the immediate relative category, an immigrant visa is immediately available.
• Two identical photos. See http://uscis.gov/graphics/formsfee/forms/forminfo.htm#Photos for photograph specifications.
• Form G-325A, Biographic Data Sheet, for applicants between the ages of 14 and 79.  Form G-325 is available for download from the USCIS web site.
• Form I-130, Petition for Alien Relative: A citizen or LPR of the US files this form to establish the relationship to the eligible relative applicant.  Either the original I-130 may be submitted if you are filing concurrently with the Form  I-485, or a copy of the Form I-797 Notice of Action Approval Notice should be included, if the petition had been previously filed and approved. Form I-130 is available from the USCIS web site.
• Form I-864, Affidavit of Support (completed by the relative sponsor) to show that an intending immigrant has adequate means of financial support and is not likely to become a public charge.  All sponsors must submit documentation with their I-864 such as: proof of current employment or self employment; and, individual Federal income tax returns for the most recent years, or an explanation if fewer than 3 are submitted.  The sponsor’s IRS W-2 or 1099 forms may also be required.  Form I-864 and instructions are available for download from the USCIS web site.
• Form I-693, Medical Examination Sheet is used to certify the health of an alien seeking to adjust status as a visitor or immigrant to the US.  A civil surgeon who has been designated by the USCIS must conduct the medical examination. To obtain names and telephone numbers of the designated civil surgeons in your area, call the USCIS’ National Customer Service Center at 1-800-375-5283.  Form I-693 may be downloaded from the USCIS web site.
• All required supporting documentation as listed on the above forms.

You may also submit the following forms with you application for family-based permanent residency:

• Form I-765, Application for Employment Authorization, is used to apply for an Employment Authorization Document (EAD) from the USCIS if you want to work while your application is in process. The family-based beneficiary is not eligible to work in the US until the employment authorization document is received. For more information regarding application procedures for employment authorization, click here.  Form I-765 and filing instructions may be obtained and downloaded from the USCIS web site.
• Form I-131, Application for Travel Document is used to apply for advance parole if you need to travel outside the US while your Adjustment of Status (AOS) application is pending (see section D for additional information).  Form I-131 and filing instruction may be obtained from the USCIS web site.

NOTE:  Be sure to check the most current fees for each application (the fees listed on the instruction sheet of the form may not be up-to-date), and enclose a separate check for each form and procedure, even if submitting all forms simultaneously.  Current USCIS fees are available in the forms section of the USCIS website.

Address Change Notification Procedures:

If you move while your AOS application is pending, you must notify the USCIS in writing within 10 days of relocating, on Form AR-11.  Form AR-11 may be obtained from the USCIS web site, or from any US post office or USCIS office, and does not require a fee when filing.[12][13]

The Multi-Step Application Process for Lawful Permanent Residence:

• First, the USCIS must approve the immigrant visa petition, Form I-130 Petition for Alien Relative, filed on your behalf (as detailed above).  Once USCIS approves the petition, they will send the petitioner a Notice of Approval, Form I-797.  USCIS will also forward the approved petition to the Department of State’s Immigrant Visa Processing facility at the National Visa Center (NVC), which will contact the intending immigrant with further information by mail. For additional information about the NVC, visit http://travel.state.gov/visa/immigrants/types/types_1309.html.
• Second, the Department of State must determine if an immigrant visa number is immediately available to you, the foreign national, even if you are already in the US.  US law limits the number of immigrant visa numbers that are available every year.  This means that even if the USCIS approves an immigrant visa petition for you, you may not get an immigrant visa number immediately (unless you have qualified and applied as the immediate relative of a US citizen, in which case, an immigrant visa number will be immediately available).  In some cases, several years could pass between the time the USCIS approves your immigrant visa petition and the State Department gives you an immigrant visa number. When an immigrant visa number becomes immediately available to you, it means that an immigrant visa has been assigned to you.  For more information regarding obtaining an immigrant visa number, visit http://uscis.gov/graphics/howdoi/immvisa.htm.  In addition, you can check the status of a visa number in the Department of State’s Visa Bulletin at http://travel.state.gov/visa/frvi/bulletin/bulletin_2007.html.
• Third, if the sponsored alien beneficiary is already in the U.S, he or she may in some cases apply to change status to that of a lawful permanent resident after a visa number becomes available for you.  For more information on adjusting to permanent resident status, see http://uscis.gov/graphics/howdoi/LPRApplication.htm. Note, however, that certain categories of individuals are NOT eligible to apply for adjustment of status to that of an LPR.  For information on ineligible categories, see the listing provided by the USCIS at http://uscis.gov/graphics/howdoi/lpreligibility.htm .
• Family-based beneficiaries are typically issued employment authorization documents (EAD) by the USCIS offices where their adjustment applications are pending.  The processing period may vary according to caseload and from one USCIS office to another.  The family-based beneficiary is not authorized to work in the US until the employment authorization document is received. For more information regarding application procedures for employment authorization, visit http://uscis.gov/graphics/howdoi/ead.htm.
• If adjustment of status is approved, an appointment is made with the USCIS to have a temporary “I-551 stamp” placed in the beneficiary’s passport.  The temporary I-551 stamp is meant to establish proof of LPR status and unrestricted employment authorization until the actual Alien Resident Card (Form I-551) is processed (within approximately six months to one year).
• If the sponsored relative is outside of the US when an immigrant visa number becomes available, he or she must then apply to the US embassy or consulate servicing the area in which the individual resides to apply for and obtain an immigrant visa.  The consular officer or the National Visa Center of the US State Department will provide the required forms and a list of documents needed for the visa application.  All original documents must be accompanied by certified English translations.  To locate the US embassy or consulate servicing the area in which you reside, and for additional information regarding consular processing, visit http://travel.state.gov/travel/tips/embassies/embassies_1214.html.
• Medical examinations: Before issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination.  The examination must be conducted by one of the approved “panel physicians” (for a listing of panel physicians, visit the web site of the US embassy or consulate servicing the area in which the sponsored relative resides).  Results of the medical exam are valid for one year.
• An immigrant visa can be valid for six months from the date of issuance. Thus, an intending immigrant may enter the US within this period.
• The sponsored relative becomes an LPR when the USCIS Inspecting Officer admits the individual to the US. An immigrant visa – by itself – does not grant LPR status; and it is not a guarantee that an USCIS inspector will admit the individual as an LPR (e.g., in the event that the individual, after issuance of the immigrant visa but before applying for admission to the US, were convicted of a crime that would render the person ineligible for entry to the US.)

Travel While Adjustment of Status (AOS) is Pending:

Advance Parole:

Individuals often need to travel abroad while an I-485 (Application to Register Permanent Residence or Adjust Status) is pending.  This is particularly true today as processing times continue to be very long.  A special travel authorization called “advance parole” is necessary for family-based adjustment applicants who must travel while an application for adjustment of status (AOS) is pending.  An adjustment applicant who departs the US without first obtaining advance parole is considered to have abandoned the adjustment application.  If the individual remains abroad, he or she would then need to file an application for an immigrant visa at a US consular post since a new adjustment application can only be filed by persons within the US.

An application for advance parole can be filed concurrently with Form I-485 if it is anticipated that one may wish to travel soon after filing the adjustment application.  Include:

• Form I-131 (Application for Travel Document). The form contains specific instructions for filing and may be downloaded from the USCIS web site.
• Filing Fee of $110 payable to USCIS;
• Two immigration-style photographs: http://uscis.gov/graphics/formsfee/forms/forminfo.htm#Photos
• Copy of receipt notice for I-485 from USCIS confirming that application has been filed (unless filing concurrently);
• Copy of the picture page of the passport; and
• Letter with itinerary and reason for travel including a telephone number for USCIS to reach you when the travel document is ready.

Important Exception for Adjustment Applicants in H-1B and L-1 Status:

Certain H-1B and L-1 non-immigrants (and their dependents in H-4 and L-2 status) who have filed for adjustment of status can choose to travel and reenter the US on their H or L visa without having to obtain advance parole.  Travel abroad is permitted in two ways for H-1B and L-1 workers (and their dependents in H-4 and L-2 status) who have a pending I-485 application for AOS: either under a grant of advance parole or by continuing to travel as an H-1B, H-4 or L-1 or L-2 visa holder.  In order to re-enter the US in H or L status without abandoning the I-485 petition, the individual must present at the port-of-entry evidence of H or L status, a valid, unexpired H or L visa in the passport, as well as an original receipt notice for the I-485 petition filing (printed on a multi-purpose form known as a Form I-797).  The same documentation must be shown to a consular official if applying for a new H or L visa abroad while the I-485 petition is pending.  For more information regarding travel documents, visit “How Do I Get A Travel Document” for more information.

The “V” Nonimmigrant Provision of the LIFE Act

The V nonimmigrant status is one of several immigration benefits provided by the Legal Immigration Family Equity Act (LIFE Act), enacted on December 21, 2000.  V status permits certain spouses and minor children of lawful permanent residents to reside and work in the US while waiting to obtain immigrant status.  In order to be eligible for the V nonimmigrant classification, the spouse or unmarried child (under 21 years of age) must meet the following criteria:

• A Form I-130 (Petition for Alien Relative) must have been filed with the USCIS on his or her behalf by the LPR souse or parent on or before December 21, 2000; and
• He or she must have been waiting for their immigrant status for at least three years after the Form I-130 was filed – either because a visa number (priority date) has not yet become available, or because the USCIS has not yet adjudicated the Form I-130 or the Form I-485 (Application for Adjustment to Permanent Residence).

Persons granted V nonimmigrant status must still wait until an immigrant visa number (priority date) becomes available – in accordance with the Department of State’s monthly visa Bulletin – to apply for the Green Card.  For more information regarding V status, visit http://uscis.gov/graphics/howdoi/hdinonimm.htm.

Should you have any questions regarding the foregoing, or if anything should occur once you submit your application, please feel free to contact an Avani attorney.
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[1][2] For information on US citizenship and the naturalization process, please refer to the Naturalization section of the Avani website.
[2][3] For more information on employment-based immigration, please refer to the “Employment-Based Immigration” page of the Avani website.
[3][4] For additional information on procedures for the removal of conditions on permanent residence attained through marriage, see the USCIS website.
[4][5] Under certain circumstances, the USCIS may also approve applications submitted by the foreign national alone.  Thus, the USCIS has made special provisions for certain difficulties that may arise in the marriage before the end of the two-year conditional period.  These include: 1) death of the US citizen spouse; 2) a good faith marriage which ends in a final divorce or annulment; 3) an abusive situation in which the foreign national has suffered extreme emotional and/or physical abuse at the hands of his/her US citizen spouse; or 4) when it can be demonstrated that termination of status and deportation of the foreign national would cause extreme hardship.  The standards for “extreme hardship” cases, however, are very stringent.
[5][6] Plus any visas left over from the family-based fourth preference annual allocation.
[6][7] At least seventy-seven percent of all visas available for the Family Second Preference category (114,200 total per year) will go to the spouses and minor children (2A); the remainder will be allocated to unmarried sons and daughters over age 21 (2B).
[7][8] Plus visas left over from the 1st and 2nd preferences.
[8][9] Plus visas left over from the previous preferences.
[9][10] Immigration and Nationality Act (“INA”) 101(b)(1).
[10][11] Under the USA PATRIOT Act, immigrant visa beneficiaries who are unmarried and have a petition or an application to adjust status pending with the USCIS on or before September 11, 2001 are considered “children” for US immigration purposes until the 45th day after age 21 as long as the individual’s 21st birthday occurs after September 2001.
[11][12] As noted in the preceding footnote, the USA PATRIOT Act creates a narrow exception to this age-out rule.  Note also that as of this writing (May 30, 2002) Congress is considering legislation which has a good chance of enactment to eliminate this inequitable outcome in some circumstances.