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How to Immigrate to the United States
There are several ways to obtain permanent U.S. residency. For example,
if you conduct scientific or scholarly research and your work makes
a substantial contribution to your field then you may be eligible
for permanent residency under either the extraordinary ability category,
the outstanding researcher category or a national interest waiver.
On the other hand, if you are uniquely qualified for your occupation
to the extent that few U.S. residents could perform your work and
you have a sponsoring employer, you may be eligible to obtain residency
through a labor certification. Certain multinational executives
or managers, investors, or religious workers, and others may also
be eligible to obtain permanent resident status.
If you are married, or are the parent, son, daugther or child of
a U.S. citizen or resident you may be eligible for residency based
on a family-based petition.
Every year the Department of Justice makes 55,000 immigrant visas
available through a lottery system. If you were born in one of the
eligible countries and have a high-school diploma or two years of
training in a skilled occupation, you may eligible to enter the
visa lottery.
However you apply for permanent residency, the process of immigration
involves two steps. First, is the initial petition requesting classification
under one of the several categories summarized above. The second
stage, known as adjustment
of status, is the final process of your permanent residency
application. If the preference category under which you petitioned
for immigration has reached its visa limit for your nationality
group, you must wait until your priority date becomes current before
you can file your adjustment of status.
Based on a recent USCIS regulation, you can now file your initial
petition and application for adjustment of status at the same time.
A major benefit of this regulation is that you do not have to wait
for the petition to be approved before you can file an application
for work authorization permit and travel permit. While the initial
time for approval of an employment based petition can vary, it is
currently taking approximately 2 to 10 months to complete depending
upon which service center the petition is filed with. While your
adjustment of status is pending, you may apply for a work permit
which is usually issued within a few months from when you file for
adjustment of status.
If you reside outside the U.S. when the USCIS approves the employment-based
petition, copies of the approval notice and the visa petition are
sent to the consulate or embassy nearest to your home for visa processing.
If an immigrant visa number is available, your permanet residency
application will begin to be processed immediately and can take
2-4 months to complete. If an immigrant visa in not immediately
available, you can begin visa
processing once your priority date becomes current. Because
processing your adjustment of status from within the U.S. can take
up to two years, while visa processing through a U.S. consulate
is relatively fast, we often recommend that our U.S.-based clients
complete the second stage in their home country, by returning for
their final interview at the consulate or embassy.
The following is a list of the relative advantages of each option
to enable our clients to make an informed choice:
Advantages of Adjustment of Status to Permanent Residence
1. In employment-based cases, there is usually no interview.
There is always an interview on consular cases.
2. Consular cases require travel by the principal applicant
and family members to the U.S. consulate in the country of nationality
or last residence. Adjustment of status does not require any international
travel.
3. Attorneys can be present if an interview does occur on
an adjustment of status application at the USCIS. Clients have no
right to attorney representation at many U.S. consulates.
4. Police certificates from all countries where the foreign
national lived for six months or more since age 16 are required
in consular cases. They are not required in adjustment of status
cases.
5. Employment-based adjustment applicants are not required
to remain employed with their sponsoring employers if the USCIS does
not adjudicate their application within 180 days (which virtually
never occurs). This flexibility -- known as portability -- does
not exist on cases filed only at a U.S. consulate.
6. The adjustment applicant, and his spouse and children
under age 21, can obtain employment authorization documents shortly
after filing for adjustment of status. This eliminates the need
to extend nonimmigrant status during the pendency of the adjustment
application. It is not possible to obtain an employment authorization
document during the pendency of the consular processing of an immigrant
visa application.
7. There are procedures for appealing or renewing a denied
application for adjustment of status. There are no such procedures
for a denied immigrant visa application.
8. If there are USCIS delays in deciding an adjustment application,
the foreign national is able to remain in the United States and
continue working. If there are delays in the consular processing
of an immigrant visa application following the interview, the foreign
national may be stranded outside the United States until the problems
are resolved.
Advantages of Consular Immigrant Visa Processing
1. The biggest advantage is timing. Traditionally, immigrant
visa processing at a U.S. consulate may save 3 to 18 months depending
upon the U.S. consulate and the USCIS office that would have jurisdiction
over the adjustment of status application.
2. Upon the filing of an adjustment of status application,
the foreign national may have restrictions on travel outside of
the United States. With the exception of aliens maintaining H or
L status, adjustment applicants must file for and obtain advance
parole travel permission to leave the U.S. Immigrant visa applicants
are able to travel without restriction assuming that they have valid
visas for travel.
3. An applicant for adjustment of status may need to maintain
valid status during the pendency of the adjustment of status application.
There is no such requirement for the immigrant visa applicant (however,
if the immigrant visa applicant has 180 days of unlawful presence
in the United States, she will be subject to a 3 year bar to returning
to the United States; 10 years if she had one year of unlawful presence).
4. If the family (spouse and children) of the foreign national
are outside of the U.S., it is often advantageous for the entire
family to process their immigrant visa applications together at
the U.S. Consulate.
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