The Nuts and Bolts of A Family Based Green Card Process.
In our last article we wrote about who can be sponsored for a US green card as a family member. A US citizen or lawful permanent resident (green card holder) may file Form I-130 petition for the foreign national relative, with the US Citizenship and Immigration Services (USCIS) to establish a qualifying relationship with the beneficiary (family-based immigrant). In this article we take you through the different stages of the process. Please note that it is now possible to file I-130 petitions online for certain categories.
Although the process for all categories is almost the same, the I-130 processing time will vary widely based on the type of relationship (between the petitioner and the beneficiary), the place of birth of the foreign national, the USCIS’ backlogs, waiting times at the applicable consular post and the accuracy and completeness of the I-130 petition.
I-130 Eligibility
US citizens can file a Form I-130 to petition for the following eligible relatives:
- Spouse
- Unmarried and married children
- Siblings when petitioners are age 21 or older
- Mother or father when petitioners are age 21 or older
Green card (LPR) holders can file a Form I-130 to petition for the following eligible relatives:
- Spouse
- Unmarried child
For family-based immigrant visa applications, having an approved Form I-130 by the USCIS is the first step, i.e. a prerequisite to the immigrant visa application for a green card.
General Steps to Process Family-Based Immigrant Visa I-130 Petition
- File I-130 petition and the USCIS will issue receipt notice
- The USCIS will review the I-130 petition to determine completeness
- The USCIS upon review will either approve the petition or issue a Request for Evidence for any additional/missing documents.
- The USCIS will forward the case to the NVC
- The NVC asks for additional forms, documents and fees and if everything is in order it forwards the case to the appropriate Consular office outside the US
- The US Consular office will schedule an immigrant visa interview after which if approved, the officer will issue an immigrant visa stamp in the passport.
Please note that the process is a little different for relatives who are already in the US in another non-immigrant visa status and can apply to adjust status to immigrant status.
Also, some cases may go through additional steps depending on their circumstances and availability of documents.
Filing I-130 Petition
Form I-130 can either be filed online or via mail.
To file online, an online USCIS account must be created. Online applications make it relatively easier to receive case alerts, check the case status, upload supporting evidence and see all case related correspondence.
I-130 petitions can also be submitted by mail by confirming the USCIS service centre address to which the application must be sent. Depending on the state in which the Petitioner resides and whether the immigrant beneficiary is submitting Form I-485 as well, I-130 petitions are routed to either of the following Lockbox facilities – Dallas, Chicago or Phoenix Lockbox.
From here, it will be processed at any of the USCIS’ five service centres.
I-130 Petition Processing
The USCIS, upon receiving the I-130 application and after determining the completeness of the petition, will issue a receipt notice to the concerned Petitioner and put the case in line for further review. Processing times for an I-130 petition may vary depending on a number of factors, most notably how busy the USCIS service centre is where the petition has been filed.
Wait times of several months/years are typical. Given the COVID-19 restrictions, there has been a significant increase in filings, which has led to extensive delays in receiving receipt notices for properly filed petition with a USCIS lockbox.
The review involves scrutinizing documents to make sure that, that the US citizen’s passport and other supporting documents submitted for the immigrant beneficiary are authentic and contain any official government certifications, if necessary, from the immigrant’s home country. The USCIS is very vigilant about fraud that can take place in such matters.
Once the USCIS completes its checks and scrutiny, and if all looks fine, it will approve the I-130 petition. By way of approval, the USCIS Service Centre will notify the Petitioner, by sending an official I-130 approval notice (with a priority date) and transfer the case file to the appropriate government office. It is important to note that having an approved I-130 does not, by itself, give an immigrant any right to come to, or remain in the United States.
Priority Date
The priority date basically determines each applicant’s place in the immigrant visa waiting line. It is established based on the date that a properly filed I-130 petition is received by the USCIS. The priority date is listed on the I-797 approval notice which is mailed to the Petitioner once the I-130 petition is approved.
The immigrant beneficiary must wait for the priority date to become “current” before he/she can apply for an immigrant visa or adjustment of status. “Current”, in this context, means until the applicant reaches the front of the waiting line or there is no backlog, and a family-based green card is available. Sometimes, an entire subcategory preference can become current if there is no backlog within that category. Such instances are seldom given the current backlogs and wait times.
Immigrant Visa Consular Processing or I-485 Adjustment of Status Filing
Upon approval of the I-130 petition, depending on where the immigrant is and the choice made in the I-130 application, the immigrant beneficiary may choose to apply for the green card through the process known as “Adjustment of Status” (which takes place in the United States) or “Consular Processing” (which takes place through a US Consulate or Embassy abroad).
If the immigrant beneficiary is in the US on a valid non-immigrant visa – such as an L-1, H-1B, F-1 or K-1 they need to “adjust status” from non-immigrant to immigrant, by filing an I-485, Application to Register Permanent Resident or Adjust Status with the USCIS.
The I-485 application must be submitted with relevant documents to prove, lawful status within the US, confirm the qualifying family relationship with the Petitioner, beneficiary’s biographic information etc. The required filing fee for this step will depend on the immigrant beneficiary’s age.
When the immigrant beneficiary is outside the US, he/she will have to go through consular processing at the US Embassy or Consulate abroad, generally in the country or nationality or residence. The National Visa Center (NVC) will notify the immigrant beneficiary and/or the petitioner that they must submit additional documents (including a duly completed form DS-260) and processing fee to the NVC.
The NVC will then inform the beneficiary if the case is “documentarily qualified” or ready and that NVC will send a further notification when the Embassy or Consulate is ready to schedule an interview. During the immigrant visa interview the Consular officer will also review the documents once again and if everything is in order the officer will approve the immigrant visa that is generally valid for 12 months from the date of issue. The officer will retain the passport and return it in a few days with the immigrant visa stamp. The immigrant beneficiary must travel to the US within six months of the issue date on the visa.
Police Clearance Certificate & Medical Examination
When the I-130 application is sent to the NVC, the immigrant beneficiary will need to submit a Police Clearance Certificate (along with other civil documents) from his/her present country of residence and from all countries where he/she may have lived for six months or more since the age of 16. In India, the Police Clearance Certificate must be obtained from the Regional Passport Office. The Police Clearance Certificate is valid for one year from the date of issuance. The applicant will only need to carry a new certificate to the visa interview, if the one submitted to the NVC has expired at the time when the immigrant visa interview date is scheduled.
Additionally, the immigrant beneficiary will also need to undergo a medical exam from one of the Consulate’s panel physicians before the immigrant visa interview. Entering the US on Immigrant Visa
The immigrant beneficiary must enter the United States no later than the visa expiration date printed on the immigrant visa issued. An immigrant visa is usually valid for up to six months from the date of issuance unless the medical examination expires sooner, which may make the visa validity less than six months.
At the port of entry, the US Customs and Border Protection will inspect the immigrant beneficiary and determine whether he/she is admissible or not. If found admissible, they will allow the immigrant beneficiary to enter the United States as a permanent resident. A few weeks upon arrival (usually within 45 days), the USCIS will mail the family-based green card to the immigrant beneficiary.
