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 American Immigration Lawyers Association (AILA) |
Immigration FAQS Admissions/Entry * What documents must I present? Appeals and Status * How Can I Find Out the Status of My Application? Changing Status * When do we need to change to a New Nonimmigrant Category? Citizenship * I am a US Citizen and filed an I-130 application a couple of
weeks ago for my wife. I have already received my receipt stating
that they have received the fee and it will take from 150-999 days
to process. I also have a 1 year old daughter conceived in the same
marriage. Can I file a K-3 visa right now for both of them, or should
I acquire my daughter's passport and social security card a different
way? Fiance(e) * How Do I Bring My Fiancé(e) to the United States? Green Card * How Do I Apply to Replace My Permanent Resident Card? Green Card: Family * I have a pending adjustment to permanent residency (form I-485)
as a wife of a US citizen. Can I receive unemployment benefits?
Also, could I receive unemployment benefits when I am eventually
granted a Green Card? VAWA * Can a man file a self-petition under the Violence Against Women
Act? Working in the U.S. * Will My Child Get a Work Permit? What documents must I present? Answer: * A U.S. citizen must present a passport if traveling from outside of the western hemisphere (The western hemisphere is North, Central, and South America). If traveling from inside the Western Hemisphere, any proof of U.S. citizenship that clearly establishes identity and nationality is permitted such as a birth record or baptismal record. * Lawful permanent residents of the United States must present a Permanent Resident Card ("Green Card"), a Reentry Permit, or a Returning Resident Visa. * Generally, an alien must present a passport and a valid visa issued by a U.S. Consular Official. * Under the Visa Waiver Pilot Program, nationals of participating countries do not require a visa to apply to enter the United States as a Visitor for Business or Pleasure (B-1 or B-2), if staying for no more than 90 days, and if not inadmissible. * Canadians do not generally require a visa unless coming as a
Treaty Trader, classification E. What can I expect to happen at the Port-of-Entry? Answer: Airport When arriving at an airport, the airline will give all non-United States citizens a form to complete while still en route to the United States, either Form I-94 (white), Arrival/Departure Record, or the Nonimmigrant Visa Waiver Arrival/Departure Form. The forms ask for basic identification information and the address where you will stay in the United States. If you are a U.S. citizen, the inspector will ask you for your passport, verify your citizenship, and welcome you back to the United States. If you are an alien, the Immigration Inspector must determine why you are coming to the United States, what documents you may require, if you have those documents, and how long you should be allowed to initially stay in the United States. These determinations usually take less than one minute to make. If you are allowed to proceed, the Inspector will stamp your passport and issue a completed Form I-94 to you. The Form I-94 indicates what immigration classification you were given and how long you are allowed to stay. Land You will undergo the same general process at a land border port-of-entry. One official may conduct all four inspections. That official may send you for further review or issuance of needed papers to a second inspection area. Once a determination is made to allow you into the United States, you may be sent to Customs or immediately allowed to proceed on your trip. Sea The inspection process at a sea port-of-entry is similar to the
airport process. Often, inspections occur prior to the boat's arrival
in the United States How Can I Find Out the Status of My Application? Answer: To check the status of your application, please click here. You should be prepared to provide the INS ten-digit receipt number printed on your Form I-797, Notice of Receipt.
Changing Status When do we need to change to a New Nonimmigrant Category? Answer: A nonimmigrant temporarily enters the United States for a specific purpose such as business, study, temporary employment or pleasure. When you are admitted into the United States, a U.S. official will assign you a nonimmigrant category according to the purpose of your visit. If you want to change the purpose of your visit while you are in the United States, then you or, in some cases, your employer must ask the Immigration and Naturalization Service to change your nonimmigrant status. For instance, if you arrived here as a tourist, but want to become a student, you must submit an application to change your status with the INS. If you do not apply to change your nonimmigrant status, you will be breaking U.S. immigration laws. Proof that you are willing to obey U.S. laws may be important if you want to travel to the United States as an immigrant or nonimmigrant in the future. You may also become subject to removal (deportation) if you break U.S. immigration laws
Where Can I Find the Law about changing status? Answer: The Immigration and Nationality Act (INA) governs the admission of all people to the United States. For the part of the law concerning changing nonimmigrant status, please see INA § 248. The applicable regulations are found in the Code of Federal Regulations (CFR) at 8 CFR § 248 .
Who is Eligible? Answer: To find out who may apply to change nonimmigrant status, please click here.
How Do My Spouse and Child Apply to Change Their Nonimmigrant Status? Answer: If your employer files INS Form I-129 (Petition for Alien Worker) for you, then your spouse and child must carefully read and complete INS Form I-539 (Application to Extend/Change Nonimmigrant Status) and submit any required supporting documents to change to a new nonimmigrant category. It is best to submit both forms at the same time. You may include your spouse and any unmarried children under the age of 21 in your INS Form I-539 application if you are all in the same nonimmigrant category, or if your spouse or children were given derivative nonimmigrant status. Derivative nonimmigrant status means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a student is given an F-1 "Academic Student" visa, then the spouse and child are given F-2 "Spouse and Child of an Academic Student" visas. When Should I Apply? We recommend that you apply as soon as you determine that you need to change to a different nonimmigrant category. Please note, you must apply to change your nonimmigrant category before you current nonimmigrant status expires. Also, do not start new employment without first being approved for your change of status. The date your status expires can be found in the lower right-hand corner of your INS Form I-94 (Arrival-Departure Record). You should have received an INS Form I-94 when you legally entered the United States. I am a US Citizen and filed an I-130 application a couple of weeks ago for my wife. I have already received my receipt stating that they have received the fee and it will take from 150-999 days to process. I also have a 1 year old daughter conceived in the same marriage. Can I file a K-3 visa right now for both of them, or should I acquire my daughter's passport and social security card a different way? Answer: The K-3 should be an option for you and probably is the best way
to go if it is available. This is the visa category for spouses
of US citizens abroad. It is a new category and is designed to speed
up the process of getting relatives to the US (compared to the traditional
way which could take one to two years. For the K-3, you are already
past the first step which is to get the I-130 filed and get a receipt.
You are not probably eligible to file the K-3 application with the
INS. I am an American citizen. I want to marry a Filipino citizen who is here with no green card, visa, etc. Will our marriage make him a citizen? Answer: If you finacee entered the US illegally, then your marriage will probably not have the immediate effect of making him eligible to apply for the green card. Unfortunately, he'll most likely need to leave the US and then you would need to apply for a waiver for him to reenter and apply for a green card. The good news is that there waivers are usually not that hard to secure. The bad news is that they can take a couple of months or more to get. How Do I Bring My Fiancé(e) to the United States? Answer: Background If your fiancé(e) is not a citizen of the United States and you plan to get married in the United States, then you must file a petition with INS on behalf of your fiancé(e). After the petition is approved, your fiancé(e) must obtain a visa issued at a U.S. Embassy or consulate abroad. The marriage must take place within 90 days of your fiancé(e) entering the United States. If the marriage does not take place within 90 days or your fiancé(e) marries someone other than you (the U.S. citizen filing INS Form I-129F - Petition for Alien Fiancé), your fiancé(e) will be required to leave the United States. Until the marriage takes place, your fiancé(e) is considered a nonimmigrant. A fiancé(e) may not obtain an extension of the 90-day original nonimmigrant admission. If your fiancé(e) intends to live and work permanently in the United States, your fiancé(e) should apply to become a permanent resident after your marriage. (If your fiancé(e) does not intend to become a permanent resident after your marriage, your fiancé(e)/new spouse must leave the country within the 90-day original nonimmigrant admission.) Please note, your fiancé(e) will initially receive conditional permanent residence status for two years. Conditional permanent residency is granted when the marriage creating the relationship is less than two years old at the time of adjustment to permanent residence status. Please note: Your fiancé(e) may enter the United States only one time with a fiancé(e) visa. If your fiancé(e) leaves the country before you are married, your fiancé(e) may not be allowed back into the United States without a new visa.
How Do I Apply to Replace My Permanent Resident Card? Answer: If you are a permanent resident, or conditional resident who needs to replace your two-year card because it was lost, stolen or mutilated. We will help you replace your permanent resident card. Please Note: This procedure should NOT be used by lawful permanent residents who are seeking to renew their ten-year card only because the card is expiring. The Service is providing separate instructions for the renewal of expiring I-551s.
What is a Permanent Resident Card? Answer: A Permanent Resident Card, commonly known as a Green Card, is evidence of your status as a lawful permanent resident with a right to live and work permanently in the United States. It also is evidence of your registration in accordance with United States immigration laws.
How do I get a green card through employment? Answer: Please click here to find out more about Employment-related immigration. If My Application is denied how can I Appeal? Answer: If your application for a renewal of your permanent resident card is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision. However, you may submit a motion to reopen or a motion to reconsider with the same office that made the unfavorable decision. By filing such a motion, you may ask the INS office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by the appropriate documentary evidence. A motion to reconsider must establish that the decision to deny your application was based on an incorrect application of law or INS policy, and further establish that the decision was incorrect, based on the evidence in the file at the time the decision was made.
My wife's green card expires this July. To avoid paying renewal fees, we want to apply for her citizenship. But since the citizenship application will take some time and may go beyond this July, does she in the meantime still need to get her green card renewed before she becomes a citizen? Answer: I would go ahead and apply for a replacement green card. You'll find that even though your wife will not lose her legal status as a permanent resident while waiting for citizenship, having proof of being a permanent resident is very important. I have a pending adjustment to permanent residency (form I-485) as a wife of a US citizen. Can I receive unemployment benefits? Also, could I receive unemployment benefits when I am eventually granted a Green Card? Answer: Eligibility for unemployment benefits is a function of state law
and not immigration law so I am not an expert on this subject per
se. I would, however, check the website for the agency in your state
that administers the program. I am fairly sure that green card holders
are entitled in every state to unemployment insurance. Not sure
about others, however. How Do I Bring a Sibling to Live in the United States? Answer: This information is for U.S. citizens who wish to bring a sibling to live permanently in the United States. Only U.S. citizens can bring their siblings to live permanently in the U.S. Lawful Permanent Residents cannot. Definition of a Sibling A sibling is a brother, sister, stepbrother, stepsister, or adopted brother or sister. For the necessary sibling relationship to exist, each person must have been a child of at least one of the same parents. The siblings need not share the same biological parents as long as both became "children" at the appropriate time (before the age of 16 in cases of adoption, and before the age of 18 for stepchildren). Overview of the Immigration Process A legal immigrant (or "lawful permanent resident") is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your brother or sister to become a legal immigrant: 1. The INS must approve an immigrant visa petition that you file for your brother or sister. 2. The State Department visa bulletin must show that a sibling immigrant visa is available to your sibling, based on the date that you filed the immigrant visa application. 3. If your brother or sister is outside the United States when an immigrant visa number becomes available, your brother or sister will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your sibling is legally inside the U.S. when an immigrant visa number becomes available, he or she may apply to adjust status to that of a lawful permanent resident using the Form I-485. Depending on the relationship and the country involved, the wait
for an available sibling visa number may be several years. You may
refer to the Department of State's Visa Bulletin for current priority
dates. I am a US citizen and my sister is not. She came here on a student visa and graduate from college. She worked at a bank after school for a year on the practical training visa. However, her visa has now expired. Can I apply for permanent residency status for her? Will I have to pay a special fee to have this done? Answer: You can apply for permanent residency for her, but that merely
enters her into a queue with a wait that is more than 10 years.
And your sister cannot remain legally in the US in the interim merely
because you have filed this. She'll need to find another way to
stay legally in the mean time such as by continuing on in non-immigrant
visas like a student visa or a work visa. Who is Eligible to Sponsor a Sibling? Answer: If you are a U.S. citizen and at least 21 years old, you are eligible
to petition to bring your brother or sister to live and work permanently
in the United States. If you are a lawful permanent resident, you
are not eligible to apply to bring your brother or sister to live
and work permanently in the United States. How Do I Bring My Children to Live in the United States? Answer: Background A lawful immigrant is a non-citizen who has been granted the privilege of living and working permanently in the United States. A child is defined under the immigration law as an unmarried person under the age of 21. The definition of a child includes: * A stepchild if the parent's marriage took place before the child reached the age of 18 * A child born out of wedlock if the child has a "bona-fide" relationship with the parent who is filing the petition * An adopted child if the child was adopted before the age of 16 and has lived with the adoptive parent(s) for at least two years * A child who is considered an orphan under the immigration law * An adopted child under the age of 18 who is the natural sibling of an orphan or adopted child under the age of 16, if adopted with or after the sibling. Lawful Permanent Residents If you are a lawful permanent resident you may petition for a minor child or an unmarried son or daughter over the age of 21. Your child must go through a three-step process to become a lawful immigrant. First, the INS must approve an immigrant petition (application), Form I-130 Petition for Alien Relative that you file for your child. Second, the State Department must give your child an immigrant visa number, even if your child is already in the United States. Third, if your child is already in the United States, your child may apply to adjust to permanent resident status when a visa number becomes available. If your child is outside the United States when an immigrant visa number becomes available, your child will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. U.S. Citizens If you are a U.S. citizen, your minor child (unmarried and under 21 years of age) will be considered an "immediate relative" and will receive an immigrant visa to enter the United States. To receive an immigrant visa you must prove your relationship to your child and your child must be admissible under the immigration law. You will need to file a Form I-130 Petition for Alien Relative. You may also file a petition for an unmarried son or daughter over
the age of 21 or a married son or daughter under the preference
classifications by filing a Form I-130 Petition for Alien Relative.
After the petition is approved by the Immigration and Naturalization
Service, the State Department will give your son or daughter an
immigrant visa number as soon as a number is available. You may
file a Form I-485, Application for Adjustment of Status, to Permanent
Resident at the same time. However the application for adjustment
of status will not be considered until a visa number is immediately
available and the petition for immediate relative or preference
classification is approved. How Do I Bring My Parents to Live in the United States? Answer: This information is for United States citizens who wish to bring their parents to live permanently in the U.S. Note: Lawful permanent residents may not petition to bring their parents to live permanently in the U.S. Overview of Immigration Process A legal immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a two-step process for your parent to become a legal immigrant. First, the INS must approve an immigrant visa petition that you file for your parent. Second, if your parent is outside the United States, your parent will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your parent is legally inside the U.S., he or she may apply to adjust his or her status to that of a lawful permanent resident using the Form I-485. What Does the Law Say? The Immigration and Nationality Act is a law that governs the admission of all immigrants to the United States. For the part of the law concerning immigrant visas for parents, please see INA § 201 and INA § 204. The specific eligibility requirements and procedures for applying for immigrant visas and permanent residence are included in the Code of Federal Regulations [CFR] at 8 CFR § 204.1 and 8 CFR § 204.2. I am a filipino citizen and want to be closer to my son who is now in the U.S.. He is one year old. Would I be able to get a residence permit so I can be closer to my son? Answer: You will not be able to get a green card through your son unless
your son is 21 years old. So you will need to find a strategy that
is completely independent of your having a child in the US. That
probably means looking at getting a temporary visa to work, study,
or run a business and later look at getting a green card. Who is Eligible to Sponsor a Parent? Answer: If you are a U.S. citizen and at least 21 years old, you are eligible to petition to bring your parents to live and work permanently in the United States. If you are a lawful permanent resident, you are not eligible to petition to bring your parents to live and work permanently in the United States. How Do I Bring My Spouse (Husband or Wife) to Live in the United States? Answer: This information is for U.S. citizens and lawful permanent residents who wish to bring a spouse to live permanently in the U.S. Only U.S. citizens can bring their siblings to live permanently in the US. Lawful Permanent Residents cannot. Information For Your Alien Relative Note: Information concerning the new K (advance admission for the spouse and children of a U.S. citizen) and V (advance admission for the spouse and the minor children of a lawful permanent resident) nonimmigrant visas will be coming soon. Definition of a Spouse Before you file any documents, it is helpful to understand that "spouse" means lawful husband or wife. In order to successfully petition for an immigrant visa for your spouse, your relationship with your spouse must be established and your spouse must be admissible to the United States under the immigration law. Overview of Immigration Process A legal immigrant (or "lawful permanent resident") is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your spouse to become a legal immigrant: 1. The INS must approve an immigrant visa petition that you file for your spouse. 2. The State Department visa bulletin must show that a sibling immigrant visa is available to your sibling, based on the date that you filed the immigrant visa application. 3. If your spouse is outside the United States when your visa petition is approved and when an immigrant visa number (if required) becomes available, your spouse will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your spouse is legally inside the U.S. when your visa petition is approved and when an immigrant visa number (if required) becomes available, he or she may use the Form I-485 to apply to adjust his or her status to that of a lawful permanent resident. For an excellent overview of immigration, please see the chapter and tables on immigrants in the INS Statistical Yearbook. What Does the Law Say? The Immigration and Nationality Act is a law that governs the admission of all immigrants to the United States. For the part of the law concerning immigrant visas for spouses, please see INA § 201, INA § 203, and INA § 204. The specific eligibility requirements and procedures for applying for immigrant visas and permanent residence are included in the Code of Federal Regulations [CFR] at 8 CFR § 204.1, 8 CFR § 204.2, and 8 CFR § 245. Information for Citizens If you are a U.S. citizen, your spouse is considered an immediate relative and is immediately eligible for an immigrant visa if your petition is approved. Generally, if your spouse is in the U.S. (through a lawful admission or parole) at the time you file the Form I-130, Petition for Alien Relative, your spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. If he or she is outside the U.S., your spouse will need to go to the nearest U.S. consulate to apply for an immigrant visa. Information for Lawful Permanent Residents If you are a lawful permanent resident and your petition for your spouse is approved, your spouse will be notified by the Department of State when a visa number becomes available. If your spouse is outside of the United States at the time of notification, he or she must then go to the local U.S. consulate to complete visa processing. If your spouse is inside the U.S. through a lawful admission or parole and is maintaining that status at the time of notification, he or she may file the Form I-485 when the visa number becomes available. If you do not have the Department of State issued visa number, you must wait for a number to become current. Your spouse may need to depart the United States to avoid accruing unlawful presence. If you were married to your spouse before you became a permanent resident, your spouse may be eligible to receive following-to-join benefits. This means that you would not have to submit a separate Form I-130, Petition for Alien Relative, for your spouse, and your spouse would not have to wait any extra time for an immigrant visa to become available. Conditional Residence If you have been married less than two years when your spouse is granted lawful permanent resident status, your spouse will receive permanent resident status on a conditional basis. You and your spouse must apply together to remove the conditions on residence. Please note - you must apply to remove conditional status within 90 days before the 2-year anniversary of the award date of your spouse's conditional legal permanent resident status. If you fail to file during this time, your spouse will be considered out of status as of the 2-year anniversary, and may be subject to removal from the U.S. Employment-based immigration An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment. 1) The INS must approve an immigrant petition (application) that was filed for you, usually by an employer. 2) In most employment categories, a U.S. employer must complete a labor certification request (ETA 750) for you from the Department of Labor's Employment and Training Administration. 3) The State Department must give you an immigrant visa number, even if you are already in the United States. 4) If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. Can a man file a self-petition under the Violence Against Women Act? Answer: Although the self-petitioning provisions for victims of domestic
violence are contained in the Violence Against Women Act, they apply
equally to victims of either sex. Must the self-petitioner remain married to the abusive spouse until the self-petition is approved? Answer: The regulations only require that the self-petitioning spouse be married at the time of filing. After the self-petition has been filed, legal termination of the marriage will not usually affect the self-petition, but you may want to seek advice from an immigration attorney or legal advocate. Can a divorced spouse seek relief through self-petitioning? Answer: A self-petition will be denied if the marriage ends in death, divorce or annulment before the self-petition is filed. A battered spouse who is divorced from the US citizen or LPR spouse may be eligible for cancellation of removal. This is provided for under Section 240A(b)(2) of the INA. To qualify he/she must meet the other requirements that would be necessary for approval of a self-petition and must have been physically present in the U.S. for 3 years immediately preceding the filing of the application for cancellation of removal. A self-petition will also be denied if the self-petitioner re-marries before filing or after filing and before the self-petition is approved. Remarriage after the self-petition has been approved but before adjustment of status or entry into the U.S. with an immigrant visa will result in revocation of the approved I-360 self-petition.
Will My Child Get a Work Permit? Answer: Applicants, who are lawfully present in the United States and have filed INS Form I-485, Application to Register Permanent Residence or Adjust Status, are eligible to apply for a work permit while their case is pending. If your child is over the age of 14 and wants to work, then your child should use Form I-765 to apply for a work permit. Your child does not need to apply for a work permit once they arrive with an immigrant visa or adjust to permanent resident status. As a lawful permanent resident, your child should receive an alien registration card. This card will prove that your child has a right to live and work in the United States permanently. If your child is now outside the United States, your child will receive a passport stamp upon arrival in the United States. This stamp will prove that your child is allowed to work until an alien registration card is created. I am an L-1 visa holder and recently married a green card holder. If I want to change jobs, do I need the new company to sponsor an H-1, or is there another way of doing it because I'm married to a green card holder? Answer: Your marriage to a green card holder is not likely to provide any immediate effect unless you were married before your spouse got the green card. The backlog for green cards for spouses of permanent residents is several years and you are not entitled to remain in the US while it is pending unless you are maintaining a non-immigrant visa. Once your wife becomes a citizen, things will change and then you can apply for adjustment status and get an employer authorization document. I'm presuming you have not applied yet for the green card, but if you have, then obviously things may be faster. |
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