by: kathleen campbell walker and judith g. cooper october 20, 2011
TRANSCRIPT
By: Kathleen Campbell Walker and Judith G. Cooper
October 20, 2011
Permanent Residence
Employment Based Family Based
Petition Process
Adjustment of StatusIn the U.S.
Consular Process
Wait for PD
First – Unmarried Sons and Daughters of Citizens: 23,400 a year.
Second – Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Third – Married Sons and Daughters of Citizens: 23,400.
Fourth – Brothers and Sisters of Adult Citizens: 65,000.
First - (EB-1, priority workers); 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second - (EB-2, worker with advanced degrees or exceptional ability); 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third Preference (EB-3, professionals, skilled workers and other workers); 28.6% of the worldwide employment-based preference level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers.”
Fourth - (EB-4, special workers, such as religious workers); 7.1% of the worldwide level; and
Fifth - (EB-5, employment creation or investor visas). 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area and 3,000 set aside for investors in regional centers by §610 of Pub. L. No. 102-395
On the charts below, the listing of a date for any class indicates that the class is oversubscribed. “C” means current, i.e., numbers are available for all qualified applicants.“U” means unavailable, i.e., no numbers are available.
(NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off dates listed.)
All Areas
CHINA INDIA Mexico PHILIPP-INES
1st 22JUL04 22JUL04 22JUL04 01APR93 08FEB97
2A 15FEB09 15FEB09 15FEB09 01DEC08 15FEB09
2B 01AUG03 01AUG03 01AUG03 22NOV92 15JUL01
3rd 22SEP01 22SEP01 22SEP01 08DEC92 22JUN92
4th 15JUN00 15JUN00 15JUN00 22APR96 22AUG88
DEPARTMENT OF STATE –VISA BULLETIN – www.state.gov November 2011
1. Where is the applicant? 2. How did the applicant enter the U.S.? 3. Is the applicant in the U.S. pursuant to an authorized
period of admission? 4. Is the applicant a U.S. citizen (USC)? 5. Is the applicant already the beneficiary of an immigrant
visa petition and/or labor certification? 6. Has the applicant ever been a U.S. legal permanent
resident? What happened in any prior application for permanent residence?
7. Is the applicant subject to any grounds of removability or inadmissibility?
8. What is the applicant’s country of chargeability for visa purposes? Is cross-chargeability an option?
9. Has the applicant ever violated the terms of his or her stay in the U.S.?
10. Has the applicant ever been refused admission to the U.S.?
11. Review all of the DS-260 and I-485 questions with the applicant in advance.
12. Does the applicant qualify for any waivers? 13. Has the applicant renounced U.S. citizenship? 14. Has the applicant paid required U.S. taxes, if applicable? 15. Has the applicant registered for selective service, if
applicable? 16. Does the applicant have any criminal history? Do you have
the records of the arrest and the statutory information regarding the alleged crime?
17. Triple check the issue of the application of unlawful presence bars under INA §212(a)(9).
18. Did the applicant ever have A, G, or E nonimmigrant status requiring the filing of an I-508 Waiver of Rights, Privileges
and Immunities? 19. Is the applicant subject to the two year foreign residency
requirement of INA §212(e)? 20. Is the applicant eligible for a faster path via employment or
family based alternatives? See 8 CFR §245.7.
An alien physically present in the United States who entered the United States without inspection can adjust their status if they are the beneficiary of:
• (i) a petition for classification under section 204 that was filed with the Attorney General on or before April 30, 2001; or
• (ii) an application for labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date
The status of an alien who was inspected and admitted or paroled into the Unites States (or a VAWA self-petitioner) can be adjusted by the Attorney General if:
• (1) the alien makes an application for adjustment,
• (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
• (3) an immigrant visa is immediately available
Brenda is a citizen of Brazil who entered the U.S. using a B-1/B-2 visa. During her visit to the U.S. she and her U.S. citizen boyfriend, Peter, decided that they no longer wanted to be apart and they got married. Once married, Peter may file Form I-130 on Brenda’s behalf to request that she be classified as an immediate relative (in this case, wife) of a U.S. citizen. Brenda is eligible for adjustment of status because she is in the U.S. pursuant to inspection and admission and is not subject to any grounds of inadmissibility or deportability. Although Brenda worked without authorization while in the U.S. in B-2 status, working without authorization does not make her ineligible for adjustment of status because she is an immediate relative of a U.S. citizen. Therefore, Brenda may simultaneously file Form I-485, the application to adjust her status to that of a lawful permanent resident. She should become a conditional lawful permanent resident (because she and Peter will have been married less than two years at the time her application for adjustment of status is approved) within 5-6 months, depending on the processing time of the USCIS office with jurisdiction over Peter and Brenda’s residence.
If instead Brenda had entered the U.S. without inspection, she would not be eligible for adjustment of status unless she qualified for an exception to this requirement, such as under INA § 245(i). Let’s assume that she is not eligible under any exception. Being an immediate relative of a U.S. citizen does not waive the requirement of inspection and admission to adjust her status in the U.S. Therefore, Peter may file Form I-130 on Brenda’s behalf, but once approved, Brenda will have to apply for an immigrant visa outside the U.S. Whether Brenda will trigger a bar when she departs the U.S. to attend her consular interview will depend on her history of entering the U.S. and how much unlawful presence she has accrued. If Brenda’s departure from the U.S. does trigger a bar, whether she will qualify for a waiver depends on which ground of inadmissibility she is charged under and, if a waivable ground, whether she has a qualifying relative who will be able to meet the extreme hardship requirement for the waiver. It is important to note that the fact that Peter is a U.S. citizen does not mean that an application for a waiver will be approved. Peter must prove that he would suffer extreme hardship if Brenda’s application for a waiver is denied.
Kathleen Campbell Walker
Partner
Cox Smith Matthews Incorporated
221 N. Kansas, Suite 2000
El Paso, Texas 79901
Tel: 915-541-9360
Fax: 915-541-9399
Judith G. Cooper
3040 Post Oak Blvd., Suite 1450
Houston, Texas 77056
Tel: 713-622-7778
Fax: 713-622-8078