How Can Asylees/Refugees, Immigrant And Non-Immigrant Aliens--Family-Based Or Employment-Based Visa Petitions--Become Legal Permanent Residents (Green Card Holders) While Living In The United States?

Asylees are those aliens who have been granted Permanent Resident or Asylum status during proceedings before an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and received proper documentation issued by the local USCIS office establishing such status (e.g., Form I-94, Nonimmigrant Arrival/Departure Record).  But an Immigrant is a foreign national who has been granted the privilege to live and work permanently in the United States through approved USCIS immigrant visa petition based on Form I-140, Employment-Based Visa Petition filed by an U.S. employer or I-130, Petition for Alien Relative filed by a relative who is a U.S. citizen, or a lawful permanent resident alien or I-129F, K-1/K-2 admitted Fiance(e)/Dependent Child/ren and later K-3/K-4 Spouse/Dependent Child/ren of a U.S. citizen.

These admitted refugees with permanent resident status must file their Form I-485, Petition to Register Permanent Resident or Adjust of Status (AOS) with the appropriate USCIS Service Center or local field office within one year of arrival into U.S.  The Asylees must file their I-485 AOS within one year of being granted asylum by the IJ or the BIA.  In most employment-based categories such as EB-2, alien workers with advanced degrees or exceptional ability and EB-3, alien professionals, skilled workers, and other workers, a U.S. employer must complete a labor certification request under the Department of Labor’s Employment and Training Administration (“ETA” 9035, formerly, 750) for the alien.  Also, the State Department must have an immigrant visa number available for the alien who is already in the United States.  Hence, those who are already in the United States must apply to adjust to Lawful Permanent Resident (LPR) status with the USCIS Service Center when such a visa number is made available to him/her.  But, those who are outside the United States when an immigrant visa number becomes available will be notified to go to the local U.S. consulate in their country to complete the processing for an immigrant visa.

The Asylees/Refugees who have been physically present in the U.S. FOR one year period after being granted immigration relief during proceedings before an IJ or the BIA; Immigrant Aliens with approved or concurrently filed Family-Based Visa Petition based on Form I-130s, Petition for Alien Relative; or Employment-Based Visa Petition based on concurrently filed, pending, or approved Form I-140, Immigrant Petition For Alien Worker(s) and have immigrant visa numbers available for them (and their spouse or children); Family-Based Visa Petition K-1 admitted Fiance(e) of U.S. Citizen based on Form I-129F who subsequently married to that citizen within 90 days of entry and/or his/her K-2 dependent child/ren and became K-3/K-4 Spouse/Dependent Child/ren; Special Immigrant Class--Active Duty Service Member(s) of U.S. Armed Forces (including Widows/Widowers) with approved or concurrently filed Form I-360, Special Immigrant Juvenile with pending or concurrently filed Form I-360, Special Immigrant Physician, Afghan and Iraqi Translators, International Organization Employees Or Eligible Family Member(s), Religious Worker(s) Or Minister(s) with approved or pending Form I-360; and Immigrant Investors with approved Form I-526, Immigrant Petition By Alien Entrepreneur must complete and file their I-485, AOS petitions with all required applicable supporting evidence.

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with Sections, INA § 245 dealing with most types of Permanent Resident Status.  The Code of Federal Regulations (CFR) at 8 CFR § 245 deal with the specific eligibility requirements and procedures for adjusting to permanent residence status (AOS).

How Can U.S. Citizens and Legal Permanent Residents  Bring Their Aliens Spouses (Husband or Wife) to Live In The United States?

Because U.S. Citizens' spouses are usually considered as immediate relatives, thus they are immediately eligible for immigrant Visas if their petitions for Alien Relative, Form I-130 are approved by the USCIS.  However, as United States Citizens, once you-the petitioner filed the Form I-130, Petition for Alien Relative, you can bring your spouse to legally live and work in the U.S. by applying for a Nonimmigrant K-3 Visa while the Form I-130, Petition for Alien Relative is pending with the USCIS. 

Furthermore, if a lawful permanent resident (LPR) (who did not gain his/her LPR status as an immediate relative through parent, spouse, or unmarried child under 21 years of age of a U.S. citizen, but through any of the followings: “a diversity immigrant visa, or an employment-based immigrant visa, or an immigrant visa based on his/her relationship to his/her U.S. citizen sibling, or an immigrant visa based on his/her relationship to his/her U.S. citizen parent when he/she was already married”) got married to his/her spouses before he/she became a Lawful Permanent Resident, then, his/her spouses may be eligible to receive “following-to-join” benefits provided that their “relationship still exists.” When such is the case and one of these categories applies, the petitioning LPR must then submit the following information to the U. S. Citizenship and Immigration Services (USCIS):

1. Form I-824, Application for Action on an Approved Application or Petition;
2. A copy of the original application or petition that was used to apply for your immigrant status;
3. A copy of the I-797, Notice of Action, for your original application or petition; and
4. A copy of your alien registration receipt card or I-551 at the USCIS office that took the most recent action on your case. 

Once the I-824 is approved, the USCIS and/or the petitioning LPR would simply notify a U.S. consulate that he/she is indeed a lawful permanent resident so that his/her spouse can apply for “a following-to-join immigrant visa.”  This means that the petitioning LPR would not have to submit a separate Form I-130, Petition for Alien Relative, for his/her spouse, and the spouse would not have to wait any extra time for an immigrant visa to become available.  It must be noted that it is the responsibility of the petitioning LPR’s spouse to contact the local U.S. consulate abroad to complete the immigrant visa processing.   

However, if the petitioning LPR’s 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.”  But if the petitioning LPR’s spouse is inside the U.S. illegally as of the time the Form I-130, Alien Relative Petition was filed on or before 04/30/01 and approved on his/her behalf, then, he or she may be “eligible to benefit for adjustment of status under section 245(i).”  Furthermore, if a Lawful Permanent Resident (LPR) has filed Form I-130 for his/her spouse and/or minor children on or before 12/21/2000, but more than three years have passed since the I-130 was filed without action on that case, then his/her spouse and/or children may be eligible for the “‘V’ visa classification under the 09/07/2001 INS Implements of ‘V’ Nonimmigrant Provision of the LIFE Act.”

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with INA (Sections) § 201, INA § 203, INA § 204 dealing with immigrant visas for Spouse. The Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, 8 CFR § 204.3, and 8 CFR § 245 deal with the specific eligibility requirements and procedures for U.S. Citizens and Legal Permanent Residents’ relatives to qualify for immigrant visas.

NOTE: Married Spouses of U.S. Citizens And Lawful Permanent Resident Aliens Must Remove Conditions on Permanent Residence Card, 90 Days Before The Anniversary of Their Marriage?

For those who have been married less than two years when their spouses are granted lawful permanent resident status, their spouse will receive permanent resident status on a conditional basis. It must be noted that both spouses (husband and wife or vise versa) must apply together to remove the conditions on residence.  Such applications must be made at the appropriate government agency to remove conditional status within 90 days before the 2-year anniversary of the award date of the spouse’s conditional legal permanent resident status.  Failure to file such petition during this time would result in beneficiary spouse being considered out of status as of the 2-year anniversary, and may be subject to removal from the U.S.  Nevertheless, if you are a U.S. Citizen, once you file Form I-130, your spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. The Form to file for this benefit is Form I-129F.  Using a K-3 visa method is the quickest way for your spouse (him or her) to come to the U.S.

See the Law: The part of the Immigration and Nationality Act (INA) which deals with conditional resident status based on marriage is INA § 216 and the specific eligibility requirements and procedures for removing conditions on permanent resident status are coded in Code of Federal Regulations [CFR] at 8 CFR § 216.

How Can U.S. Citizens and Legal Permanent Residents Bring Their Aliens Child/ren, Or Sons, Or Daughters to Live In The United States?

The U.S. Citizens and Lawful Permanent Residents who wish to bring their minor child/ren, or Sons, or Daughters to live permanently in the U.S. should file a form I-130, Petition for Alien Relative on their behalf with the United States Citizenship and Immigration Services (USCIS).  Before doing so, it is imperative for the U.S. Citizens and/or Lawful Permanent Residents to understand the USCIS legal definition of “Child/ren,” Son(s), or Daughter(s)” for immigration purposes only.  The Immigration and Nationality Act (INA), the law that governs the admissions of all immigrants to the U.S. defines minor “child/ren” as unmarried persons under the age of 21 regardless of whether he is born in wedlock or out of wedlock by both parents, adopted, or orphaned.  An “unmarried sons or daughters” are persons of 21 years of age or over, but “married sons or daughters” are persons of any age who are married. 

The U.S. Citizen’s “minor child/ren” who are “unmarried” and “under 21 years old” are considered immediate relatives, and do not need to wait for visa numbers to become available before coming to the U.S., thus, they are eligible to receive immigrant visa immediately.  Also, the “unmarried, minor child/ren” of U.S. Citizens, who were admitted or paroled into the U.S., may file Form I-485, Application to Register for Permanent Residence or Adjust Status (AOS) at the time they file Form I-130, Petition for Alien Relative.  However, the fact that U.S. Citizen’s “sons and daughters” are “unmarried and 21 years old or over,” or “married at any age,” they are not immediate relative and would have to file for and obtain USCIS approval of immigrant visa petitions on I-130s and wait for visa numbers to become available and their priority date being listed on the Department of State’s Visa Bulletin before coming to the U.S.

On the other hand, Legal Permanent Residents can only bring their unmarried child/ren, sons or daughters (but not married sons and daughter).  To do so, they must first file Form I-130, Petition for Alien Relative and obtain USCIS approval of such immigrant visa petitions for their child/ren, sons or daughters; and secondly, have immigrant visa numbers available from the U.S. State Department for their child/ren, sons or daughters irrespective of whether they are already here in the U.S. or abroad.  If the child/ren or sons or daughters are legally in the U.S. when immigrant visa numbers become available, they may apply to adjust status to that of a lawful permanent resident using the Form I-485.  But if these child/ren, sons or daughters are outside the United States, they will be notified to go to the local U.S. consulate to complete the processing for immigrant visa numbers when they become available.

When a U.S. Citizen’s parent, brother or sister petitions for his/her alien relative on Form I-130, Petition for Alien Relative, and it happens that the alien relative is married with children, the alien relative’s spouse and/or children do not require a separate visa petition; they should be included in the same visa petition the relative is filing for him/her. The same rule applies to those relatives who are unmarried, 21 years of age or older and have children born out of wedlock; those children do not require a separate visa petition. 

But if aliens who are unmarried and under 21 years of age and had children who did not physically accompany them to the United States before they became lawful permanent residents want these children to join them in the United States after obtaining Lawful Permanent Resident (LPR) status, then, they will have to file a “following-to-Join Benefits” petition for their children.  This means that these new LPR aliens do not have to submit a separate Form I-130, Petition for Alien Relative, for their children, and their children will not have to wait any extra time for a visa number to become available to them before coming to the U.S.  The LPR would have to simply notify a U.S. consulate abroad that they are lawful permanent resident so that their children can apply for immigrant visas there.

NOTE: For the LPR’s child/ren to be eligible for following-to-join benefits, they must be unmarried and under 21 years of age and have been child/ren, or a stepchild from a marriage of theirs which must have existed at the time the LPR was admitted into the U.S. or legally adopted and otherwise qualify as adopted child/ren under the immigration law prior to the LPR’s admission to the U.S.  In any of these cases, the LPR must submit the following documents to the USCIS that took the most recent action on his/her case:

(i).  Form I-824, Application for Action on an Approved Application or Petition;

(ii).  A copy of the original application or petition that you used to apply for your immigrant status;

(iii).  A copy of the I-797 Notice of Action for your original application or petition;

(iv).  A copy of your alien registration receipt card or I-551; and

(v).  Any other relevant proof that the child meets the appropriate criteria for Following-to-Join Benefits.

The petitioning U.S. Citizens, or Legal Permanent Residents and their beneficiaries (Child/ren, or Sons, or Daughters) must complete and file their I-130s, Petition for Alien Relative with all required applicable supporting evidence.

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with INA (Sections) INA § 202, INA § 203 and INA § 204 dealing with the immigrant status for children, sons, and daughters. The Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, 8 CFR § 204.3, and 8 CFR § 245 deal with the specific eligibility requirements and procedures for U.S. Citizens and Legal Permanent Residents’ relatives to qualify for immigrant visas.

How Can U.S. Citizens Bring Their Alien Parents (Fathers and Mothers) to Live Permanently In The United States?

The United States Citizens who are at least 21 years old are eligible to bring their alien parents to live and work permanently in the U.S.  But the Lawful Permanent Residents may not petition to bring their alien parents to live permanently in the U.S.  In order for a U.S. Citizen to bring their alien parents to live and work permanently in the U.S., he/she must complete an immigrant visa petition on Form I-130, Petition for Alien Relative, on behalf of his/her alien parent(s) and file it with the United States Citizenship and Immigration Services (USCIS).  If such immigrant visa petition is approved by the USCIS and the alien parent(s) is outside the United States, then, he/she will be notified to go to the local U.S. consulate to complete the processing for the immigrant visa.  But if the alien parent(s) is legally inside the U.S., then, she/he may apply to adjust his/her status to that of a lawful permanent resident using the Form I-485, application to register permanent residence and/or adjust status.  NOTE: U.S. Citizens who were legally adopted may not petition for their birth parents.

The petitioning U.S. Citizens and their Alien Parents must complete and file their I-130s, Petition for Alien Relative with all required applicable supporting evidence.

See the Law: The Immigration and Nationality Act (INA) governs the admissions of all immigrants to the U.S. with INA (Sections) INA§ 201, INA § 204 dealing with immigrant visas for Parents. The Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, and 8 CFR § 245 deal with the specific eligibility requirements and procedures for U.S. Citizens and Legal Permanent Residents’ relatives to qualify for immigrant visas.

How Can Asylees Help Their Alien Spouses (Husband or Wife) And Child/ren (Daughters and Sons) Get Derivative Asylum Status In The United States?

According to the immigration law, Asylum seekers may include their spouse or any unmarried child/ren under the age of 21 who are in the United States in their own asylum.  But Asylum seekers whose asylum application have been granted asylum (and are now Asylees) and whose spouse and/or child/ren are outside the United States may apply for derivative asylum benefits for their spouse or minor child/ren based on the Asylee’s own asylum status within two years of granting such status.  As for the Asylees whose spouse and child/ren are already in the United States may be eligible for derivative asylum benefits regardless of whether they are in the country legally or illegally provided that the relationship between the Asylees and their spouse and child/ren must have existed when they were granted asylum and continue to exist when they file Form I-730, Refugee/Asylee Relative Petition and when their spouse and children are admitted to the United States as derivative Asylees.  Meaning that the Asylee’s children must be under 21 years of age and unmarried, and the spouse must remain married to the Asylee.  Also, child/ren who were already conceived by an Asylum seeker’s spouse who is outside the country, but were not yet born on the day an Asylum seeker was granted asylum status are qualified for derivative asylum status.  

Again, derivative asylum benefit may be applied for a step-child as long as the marriage between Asylee and the child/ren’s parent took place before the child/ren’s 18th birthday.  Moreover, derivative asylum status may be applied for adopted child/ren as far as the adoption took place before the child/ren’s 16th birthday and the child/ren have been in Asylee’s legal custody for at least two years.  The United States Citizenship and Immigration Services (USCIS) may require parentage testing or blood testing or DNA testing after initial and secondary forms of evidence have failed to establish parentage link.   Such test which must be conducted by an accredited laboratory, the American Association of Blood Banks (“AABB”) must be at the expense of the petitioning Asylee(s).  The admitted spouse and child/ren, 14 years and older may be permitted to work after proper documents are issued to them following filing of Form I-765, Application for Employment Authorization Document.  NOTE: After Asylee’s spouse or child/ren are admitted to the United States as derivative Asylees, they must be granted special permission to travel abroad until they adjust to lawful permanent resident status, otherwise they will not be readmitted into U.S. upon a return from a trip abroad.

See the Law: The part of Immigration and Nationality Act (INA) which deals with Asylum is INA Section 208.  The Code of Federal Regulations (CFR) at 8CFR Section 208 deals with the specific eligibility requirements and procedures for Asylees applying to bring their spouse or child/ren to the U.S.

Whether It Is OK for Legal Permanent Residents to Travel Abroad And How Long Should They Stay Away?

Yes, it is OK for the Legal Permanent Resident (LPR) to travel abroad, anywhere, and any place as far as she/he doesn’t have criminal conviction(s) hanging around her/his neck that would prevent her/him from being admitted into the U.S upon reentering the country from oversea visit.  Again, if an LPR plans to travel abroad  for a visit that would entail a stay more than one year abroad, then he/she is required to file and obtain a “Re-entry Permit” that would allow him/her as an LPR to travel and reenter the U.S.  Indeed, with a Re-entry Permit document, an LPR may stay outside the United States for up to two (2) years.  But to avoid breaking the continuity of the required continuous residence in the United States which counts toward his/her naturalization for citizenship, she/he must file “Form N-470, Application to Preserve Residence” for Naturalization purposes.  However, if she/he plans to stay abroad for a visit less than one (1) year, he/she is not required to apply for Re-entry Permit.  She/he may reenter the U.S. on her/his own Permanent Resident Card, Form I-551 and valid passport.

What Is H-1B Visa And Who qualifies for It?

Alien workers are eligible to come to the U.S. in a specialty occupation under nonimmigrant visa category known as H-1B.  The fact that specialty occupations (which include positions in the Arts, Business, Education, Engineering, Law, Medicine, Architecture, Accounting, Mathematics, Physics, Biology, Chemistry, Social Sciences, Computers and Information Technology, and theology) require a specialized knowledge of a certain body of theoretical and practical material makes it imperative for such foreign workers to possess a baccalaureate degree as a minimum requirement for entry into the U.S. labor force.

 Is There An Annual Cap on H-1B Visas?

Yes, there is a limit on the number of H-1B visas that can be issued each fiscal year, which begins in October every year, and it is 65,000 with additional 20,000 for those with Graduate (Masters) degrees and no limit for  nonprofit Organizations, Universities and Colleges, and Government Research Laboratory Agencies.  As a result, petitioner/applicants should endeavor to complete and file their applications with relevant government agency as soon as the required documents are assembled.

How Can Foreign Nationals Show That They Qualify For H-1B Visas?

Foreign applicants must show that they have earned the equivalent of a U.S. bachelor’s degree, and that they have an offer of employment from a qualified U.S. employer willing to act as an H-1B sponsor.

Who Qualifies As U.S. Employer?

U.S. immigration law defines an employer as “a person or entity who engages the services or labor of an employee to be performed in the United States for wages or other remuneration.”

What Are The Obligations Of A U.S. Employer Sponsoring An H-1B Alien Worker?

The U.S. sponsor must make a written commitment in a Labor Condition Application (LCA) to:

• Pay the H-1B employee the prevailing wage for the position being offered;
• Provide the same working conditions for H-1B employees as for other workers;
• If Dependent Employer, recruit and not displace U.S. workers by hiring foreign nationals with H-1B visas; and
• Agree to abide by DOL regulations or be subject to payment of back wages, penalties, and exclusion from immigration programs.

What Is The Process For Applying For An H-1B Visa?

The sponsoring U.S. employer must submit a Labor Condition Application (LCA) with the United States Department of Labor (DOL) confirming that the employee will be paid the prevailing wage for that position and be offered certain working conditions, among other items. The DOL certifies the LCA and returns it to the employer, who then files form I-129 with the United States Citizenship and Immigration Services of the Department of Homeland Security.

What Documents Are Required For H-1B Visa? 

Applying for an H-1B visa requires the following documents:

1. The LCA, which is signed by the sponsoring employer;
2. The H-1B petition itself (Form I-129 with H supplement), also signed by the employer;
3. A letter from the sponsoring employer describing the nature of its business and the duties of the position being offered; and
4. Copies of the alien’s resume, diplomas, certificates relevant to the alien’s training, and letters from previous employers indicating the time employed and the nature of whatever duties were performed.

What Is A Premium Processing For H-1B And How Long Is It Valid?

The Premium Processing Service offered by U.S. immigration authorities offers American employers faster processing of their petitions for H1-B visas and certain other forms of immigration status. The U.S. employer pays a premium with a guarantee from the U.S. immigration authorities that if the petition is not processed within 15 calendar days, the premium will be refunded.  The initial petition for an H-1B visa is approved for a maximum of three years, a period that begins when the foreign national arrives in the U.S. The visa may be extended for an additional three years, for a total maximum of six years. The person must leave the U.S. for one year following that six-year period but then may re-enter the U.S. on a new H-1B visa.

What Is The Role Of An Immigration Service Agency In Applying For An H-1B Visa?

Jimed Johnson Immigration Services, LLC takes the following steps to obtain H-1B visas for clients (employers):

• Analyze the job being offered, the applicant’s education, and work experience to determine if the specialist/professional criteria are met;
• Gather documents and data to support the employer’s (petitioner’s) petition;
• Evaluate and document the prevailing wage for the job being offered by the petitioner;
• Document the employer’s actual wage;
• Prepare the LCA for the employer;
• File the LCA with the Department of Labor;
• Obtain an evaluation of the employee’s college education, if it was obtained outside the U.S., to show that it is equivalent to a U.S. degree;
• Prepare an H-1B petition and company-supporting letter, and send them to the employer for review and signature; and
• File the LCA and H-1B petition with U.S. immigration authorities once the Department of Labor approves the LCA.

In sum, H-1B visa approvals are usually issued within two to three months from the date of filing with the relevant United States government agency. However, the process differs somewhat for an employee who is overseas or has a valid H-1B visa from a previous employer and seek to change/extend his/her status.

See the Law: The Immigration and Nationality Act (INA) is the legal basis for getting approval to hire temporary or permanent alien worker(s) within or abroad. Specifically, employment-based immigrants are addressed in the INA § 201, INA § 202, INA § 203 and INA § 204.  Besides, the Federal Register publishes Rules on specific criteria that clarify the eligibility requirements for individuals petitioning for employment-based immigration and these rules are subsequently codified in the Code of Federal Regulations [CFR] at 8 CFR § 204.5.