Kara Sears
Lawful permanent residents (LPRs) in the United States can petition for certain family members to obtain a Green Card and get on the path to citizenship. This is done through a family-based petition, which is one of the most common ways in which people are granted lawful permanent residence. LPRs can petition for their spouses, children under 21, and unmarried sons and daughters over 21. The first step in this process is to fill out Form I-130, also known as the Petition for Alien Relative. This form allows the government to verify the existence of a qualifying relationship and does not grant any immigration benefits or status. The process of obtaining lawful permanent residence can be complicated, and it is recommended that individuals consult with an immigration attorney or a DOJ-accredited representative to navigate the requirements and potential consequences.
| Characteristics | Values |
|---|---|
| Who can file Form I-130? | U.S. citizens, lawful permanent residents, or U.S. nationals |
| Who can file Form I-130 on behalf of? | Spouse, child, or relative |
| What is Form I-130? | Petition for Alien Relative |
| What does Form I-130 do? | Establishes a qualifying relationship with an eligible relative who wishes to immigrate to the U.S. permanently and apply for a Permanent Resident Card (Green Card) |
| What is the next step after filing Form I-130? | Adjustment of status in the U.S. or consular processing in the home country |
| What is the first step to becoming a lawful permanent resident? | Submit an application for lawful permanent residence |
| What is the second step to becoming a lawful permanent resident? | Complete the process of getting a Green Card through Adjustment of Status in the U.S. or Consular Processing in the home country |
| What is Adjustment of Status? | Process where an applicant's paperwork is processed and their accompanying interview takes place |
| What is Consular Processing? | Process where the petition is sent to the National Visa Center and then forwarded to the appropriate U.S. consulate when a visa becomes available |
| What happens if the applicant has had contact with the criminal legal system? | Gather all related documents and consult an immigration attorney to analyze the case and any associated risks |
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What You'll Learn
Family-based petitions
To submit Form I-130, petitioners must provide proof of their permanent resident status and evidence of the qualifying relationship with the beneficiary. This evidence can include birth certificates, marriage certificates, divorce decrees, or other specified documents. If there has been a legal name change for the petitioner or the beneficiary, proof of this must also be submitted. In the case of adopted children, evidence of joint residence for two years and evidence that the Hague Adoption Convention process does not apply may be required.
Once Form I-130 is submitted, the petitioner can select either consular processing outside the United States or adjustment of status within the country. If the relative is already legally in the United States, they may apply for adjustment of status to become a permanent resident after a visa number becomes available using Form I-485. If the relative is outside the United States, the petition will be sent to the National Visa Center (NVC), which will forward it to the appropriate US consulate when a visa is available. The beneficiary will then be notified of the next steps.
It is important to note that if the petitioner or beneficiary's circumstances change, and they wish to change their selection between consular processing and adjustment of status, they may contact the USCIS Contact Center and request a change. However, if the change is requested after the petition has already been approved, Form I-824, Application for Action on an Approved Application or Petition, may need to be filed.
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Form I-130
To complete Form I-130, the petitioner must select one option indicating whether the beneficiary is seeking adjustment of status inside the United States or consular processing outside the United States. It is important to make only one selection, and leaving this section blank may result in the form being rejected. If changes are required after submitting the form, the USCIS Contact Center can be contacted to request them. However, if the petition has already been approved, Form I-824 may need to be filed to make changes.
Along with Form I-130, proof of the petitioner's status as a permanent resident must be provided, along with evidence of the qualifying relationship with the beneficiary. This evidence can include birth certificates, marriage certificates, divorce decrees, or other specified documents. If there has been a legal name change for the petitioner or the beneficiary, proof of this must also be submitted.
The filing location for Form I-130 depends on the petitioner's place of residence and whether they are concurrently filing Form I-485, Application to Register Permanent Residence or Adjust Status. If the petitioner resides in the United States, they can file at designated locations in Chicago, Dallas, Elgin, or Phoenix, depending on their residence and concurrent filing status. For those residing outside the United States, filing can be done at the USCIS Elgin Lockbox or, under specific circumstances, at a U.S. Embassy or Consulate.
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Adjustment of status
To initiate the adjustment of status, individuals must first determine their eligibility by identifying the specific immigrant category under which they are applying. Most categories require applicants to have an approved immigrant petition before submitting Form I-485, Application to Register Permanent Residence or Adjust Status. However, some categories may permit concurrent filing, allowing individuals to submit Form I-485 simultaneously with the immigrant petition or while it is pending.
It is important to note that eligibility requirements for adjustment of status vary depending on the immigrant category. For instance, if you are a lawful permanent resident (LPR) or a U.S. citizen, you can file Form I-130, Petition for Alien Relative, to bring your spouse to live in the United States as a Green Card holder. If your spouse has been in the U.S. for less than two years when granted permanent resident status, they will receive conditional permanent resident status. To remove these conditions, you must jointly apply using Form I-751 within 90 days before the expiration of their conditional resident card.
Additionally, specific provisions, such as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), may impact an applicant's eligibility for adjustment of status. For instance, if an applicant became an LPR before September 30, 1996, they would generally still be considered lawfully admitted, even if they would have been deemed inadmissible under IIRIRA.
If your application for adjustment of status is denied, you will receive a decision notice outlining the reasons for the denial and whether you can appeal the decision. While appeals are generally not permitted for denied adjustment of status applications, you may still be eligible to file a motion to reopen or reconsider using Form I-290B.
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Consular processing
To begin consular processing, you must first be the beneficiary of an approved immigrant petition, and an immigrant visa number must be immediately available to you. Most immigrants become eligible through a petition filed on their behalf by a family member or employer. The sponsor must file the appropriate petition for the green card category, such as the I-130 form, with U.S. Citizenship and Immigration Services (USCIS). The processing time for petition approval varies and could take anywhere from several months to several years, depending on the government's current backlog and the specific case.
Once the petition is approved and a visa is available, the National Visa Center (NVC) will notify the petitioner and the beneficiary. The NVC is responsible for collecting visa application fees and supporting documentation. The consular office will then schedule an interview and process the case to decide if the applicant is eligible for an immigrant visa.
If granted an immigrant visa, the consular officer will provide a "Visa Packet," which the applicant must not open. The applicant must then pay the USCIS Immigrant Fee online before departing for the United States. Upon arrival in the U.S., the applicant must give the Visa Packet to the U.S. Customs and Border Protection (CBP) officer at the port of entry. The CBP officer will inspect and determine whether to admit the applicant as a lawful permanent resident. If admitted, the applicant will receive their Green Card in the mail.
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Grounds for inadmissibility
To bring your spouse to live in the United States as a Green Card holder (permanent resident), you must be either a U.S. citizen or a Green Card holder yourself. If you are a U.S. citizen, your spouse is eligible to apply for a nonimmigrant K-3 visa, which will allow them to come to the United States to live and work while the visa petition is pending.
If you are a lawful permanent resident, there are several grounds for inadmissibility that could prevent your spouse from obtaining a visa or entering the United States. These grounds are outlined in the Immigration and Nationality Act (INA) and include:
- Unlawful presence: If your spouse has accrued unlawful presence in the United States by overstaying their authorized period of stay or entering the country without admission or parole, they may be deemed inadmissible.
- Criminal grounds: If your spouse has been convicted of certain criminal offences, such as monetary instrument laundering, they may be deemed inadmissible.
- Immigration fraud or misrepresentation: If your spouse has provided false or misleading information during the immigration process, they may be deemed inadmissible.
- Membership in a totalitarian party: If your spouse is or was a member of a totalitarian party, they may be deemed inadmissible.
- Alien smuggling: If your spouse has engaged in alien smuggling or human trafficking, they may be deemed inadmissible.
- Civil penalty: If your spouse has been subject to a civil penalty under INA section 212(a)(6)(F), they may be deemed inadmissible.
- Unlawful presence bar: If your spouse has accrued more than 180 days but less than one year of unlawful presence and left the United States after removal proceedings began, they may be subject to a 3-year or 10-year unlawful presence bar and deemed inadmissible.
It is important to note that there may be waivers or forms of relief available for some of these grounds of inadmissibility. For example, if your spouse is a victim of domestic violence or human trafficking, they may not accrue unlawful presence under certain circumstances. Additionally, if you can demonstrate extreme hardship to yourself or your spouse's U.S. citizen or lawful permanent resident relatives, a waiver may be granted.
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Frequently asked questions
Form I-130, or the "Petition for Alien Relative", is a form used by U.S. citizens, lawful permanent residents, or U.S. nationals to establish their qualifying relationship with an eligible relative (the beneficiary) who wishes to immigrate to the United States and apply for a Permanent Resident Card (also known as a Green Card).
U.S. citizens, lawful permanent residents (LPRs), or U.S. nationals can file Form I-130. The form can be filed on behalf of a spouse or relative, even if they are in removal proceedings. However, it is important to note that the approval of Form I-130 alone does not prevent deportation or provide legal status.
The petitioner must provide evidence of their qualifying relationship with the beneficiary, such as a birth certificate, marriage certificate, or divorce decree. If applicable, proof of any legal name change for the petitioner or the beneficiary must also be submitted.
After Form I-130 is approved, the individual will still need to apply for adjustment of status or consular processing, depending on their case. The next steps include coordinating with immigration court proceedings and USCIS, and potentially filing additional forms such as Form I-485. It is recommended to consult with an immigration attorney or a DOJ-accredited representative to navigate the complexities of the process.
