1. Family Based Immigration and
Adjustment of Status
Charina P. Garcia and Melissa Harms

2. Permanent Residency Flowchart: 4 Steps
File I-130 Immigrant Visa Petition
Wait for Visa
Availability
Adjustment
of Status Consular
Processing
(I-485)
Interview Scheduled at U.S.
EAD/AP
Consulate/Embassy
© 2012 CPG Immigration Law Group

3. Immigrant Visa Preference System
 Immediate Relatives: Spouse, parent and minor unmarried children (under
21) of U.S. citizen – no visa wait
 Preference Categories: Visa wait
Preference Categories Definitions
1st Preference Unmarried Sons and Daughters of U.S.
Citizens
2nd Preference A Spouses and Children of Permanent
Residents
2nd Preference B Unmarried Sons and Daughters (21 years of
age or older) of Permanent Residents
3rd Preference Married Sons and Daughters of U.S. Citizens
4th Preference Brothers and Sisters of Adult U.S. Citizens
© 2012 CPG Immigration Law Group

4. Family Visa Processing
THREE steps to the process—
1. File Immigrant Relative Petition (I-130) to establish
relationship
2. Wait for Visa Availability based on Priority Dates
3. Interview
© 2012 CPG Immigration Law Group

5. I-130 Petition
 Form I-130 is preliminary step to obtaining Lawful Permanent Residency
(LPR) status
 Filing Form I-130 does not grant the beneficiary “status”
 Must maintain valid status (i.e. F-1) while waiting for visa to become
available
 I-130 is where USC or LPR relative sponsors the beneficiary for immigrant
visa
 Beneficiary must have a sponsor unless eligible for self-petition (spouses of
deceased citizens and battered spouses and children)
 Once found qualified in a preference category, sponsored relative can apply
for LPR status either through adjustment of status (AOS) or consular
© 2012 CPG Immigration Law Group
processing

6. Immigrant Visa Quota
 Published monthly by the Department of State (www.travel.state.gov)
 Annual limit of 226,000 per INA §201 with no more than 2802 per country,
per category
 Chargeability: Determined by country of birth for applicant or spouse
 Each month Department of State determines how many immigrant visas
were used worldwide and publishes a “cut-off date” in the Visa Bulletin
 Backlogs occur when the number of immigrant visas filed exceeds the
number of immigrant visas available
 Previously current dates on the Visa Bulletin may go backwards, or
categories may become “Unavailable”
© 2012 CPG Immigration Law Group

7. November 2012 Visa Bulletin
Family-Based All Other China India Mexico Philippines
Chargeability
Areas Except
Those Listed
1st 01NOV05 01NOV05 01NOV05 22JUN93 01JUL97
2nd A 15JUL10 15JUL10 15JUL10 22JUN10 15JUL10
2nd B 08OCT04 08OCT04 08OCT04 15OCT92 15FEB02
3rd 01JUN02 01JUN02 01JUN02 15FEB93 22JUL92
4th 22MAR01 15MAR01 22MAR01 08JUL96 01MAR89
 Priority Date is the date I-130 was filed with the USCIS
 Country of Chargeability is applicant or spouse’s country of birth
© 2012 CPG Immigration Law Group

8. I-485 or Consular Processing
 Beneficiaries can file for AOS or Consular processing only when a visa is available
– When preference category and country of chargeability in Visa Bulletin is “Current,” or
– When cut-off date in Visa Bulletin for preference category and country of chargeability is on or
before the Priority Date
CONSULAR PROCESSING
 If consular processing, National Visa Center will issue documents needed for immigrant visa
interview overseas
 Once Priority Date is current, U.S. consulate will schedule interview
ADJUSTMENT OF STATUS (I-485)
 Once Priority Date is current, submit I-485 with USCIS: Note: Immediate Relatives do not have to
worry about Priority Date so can file I-130 and I-485 concurrently
 Apply for work permit and travel permit for spouse and children under 21 – work permit valid for 1
year
 Can be approved in 4 – 6 months if visa available current
© 2012 CPG Immigration Law Group

9. I-485: Adjustment of Status
 Changing from non-immigrant status or undocumented status to LPR in the
United States
 Requires application on Form I-485 with USCIS
 Must be physically present in the U.S. at the time of filing and have been
“inspected and admitted” or “paroled”
 The “Priority Date” of the underlying visa petition (I-130) must be current
 Can file I-130 and I-485 concurrently if Immediate Relative
© 2012 CPG Immigration Law Group

10. Persons Precluded From Adjustment of Status
 Unlawfully employed (except immediate relatives)
 Violated status (except immediate relatives)
 Visa waiver entry (with exception for political asylum and immediate
relatives)
 Crewmen or aliens in transit
 K-1 fiancé/fiancées who did not marry petitioner within 90 days of entry
© 2012 CPG Immigration Law Group

11. Adjustment of Status Benefits: Employment and Travel
 Employment authorization (EAD) and advance parole (travel authorization)
are available for pending adjustment applicants
 EAD: Issued in 60 – 90 days; interim available if > 90 day processing
 H-1B, H-4, L-1 or L-2 are not required to obtain advance parole prior to
travel
 3 and 10 year bars: 3 year bar triggered if overstay 6 months and depart
US; 10 year bar triggered if overstay 1 year and depart US
 Advance parole travel document must be obtained prior to departure: 60 –
90 days for processing
© 2012 CPG Immigration Law Group

12. Affidavit of Support: Form I-864
 Contract between the Petitioner and Joint Sponsors with the government to
ensure repayment of public benefit (i.e. welfare)
 If the Beneficiary is applying for Adjustment of Status, the I-864 is submitted
with Form I-485
 If the Beneficiary is Consular Processing, the I-864 is submitted to the
National Visa Center with application
 All Petitioners must file an Affidavit of Support, even if they have no income.
© 2012 CPG Immigration Law Group

13. Fees for Adjustment of Status
 Form I-130: $420
 Form I-485: $1070 - includes I-485, I-765 (work permit), I-131 (travel
permit), and biometrics
 Attorney Fees: range from $2,500-$3,500 for immediate relative adjustment
of status case and usually include representation at interview.
© 2012 CPG Immigration Law Group

14. Adjustment of Status Timeline
 File I-485 and accompanying applications (I-765, I-131, I-864) with National
Benefits Center (immediate relative can also file Form I-130)
 Attends biometrics appointment 4-6 weeks after filing
 EAD and Advanced Parole generally 60-90 days
 Interview scheduled within 4 months of filing
 Green card arrives 2-4 weeks later via mail
© 2012 CPG Immigration Law Group

15. Role of the Attorney in the Process
 Review immigration history at outset to determine eligibility, filing deadlines
 Prepare all forms, assemble supporting documents and files application
 Track processing of application
 Prepare client for interview and attend interview with client
 Follow up with USCIS officer regarding outstanding issues, if any, after
interview
 Ensure client receives green card timely
© 2012 CPG Immigration Law Group

16. What to Expect at the Adjustment of Status Interview
 For marriage based cases, must prove the marriage is bona fide (joint
ownership of home, assets, pictures together and with family, children, etc.)
 Investigate other ground of inadmissibility
 Past immigration violations
 Lawful entry
 View original marriage, birth documents for authenticity
 Review affidavit of support documents for sufficiency
© 2012 CPG Immigration Law Group

17. Consular Processing: Who Uses It?
 Beneficiaries residing overseas
 Petitioners residing overseas
 Those who have failed to maintain valid nonimmigrant status and are not
eligible for adjustment of status
© 2012 CPG Immigration Law Group

18. Consular Processing: How It Works
 USCIS approves the Form I-130 and sends file to the National Visa Center
(NVC)
 NVC will send Petitioner (or attorney) first packet when priority date is
almost current
 NVC processes documents and then schedules interview and forwards
application to the US Embassy/Consulate
 Interview
 Immigrant visa issued in passport with six month validity
 Enter U.S. and green card mailed within 2 – 4 weeks
© 2012 CPG Immigration Law Group

19. Marriage Petitions
 Must prove bona fides of marriage — Applicant’s burden
 Marriage fraud bars approval of ANY future petition for alien
 Apply law of place of marriage/divorce
 If marriage less than 2 years when green card issued, green card is
conditional for 2 years
© 2012 CPG Immigration Law Group

20. Conditional Residence
 If married less than two years at time of entry/adjustment, spouses (&
certain stepchildren) awarded Conditional Permanent Residence (CPR)
 Same as “regular” LPR but expires 2 years after green card granted (not 2
year wedding anniversary)
 Must file Form I-751 petition to “remove conditions” on or before expiration
of status
 Status automatically extended until decision is made on I-751 application
 Late filing OK, but must state reasons at time of filing, or will be rejected
 If marriage deteriorates before 2 years, can still keep green card if can show
marriage was bona fide and qualify for waiver
© 2012 CPG Immigration Law Group

21. F-1/M-1/J-1 and the Permanent Residency Process
 F-1/J-1 require strict non-immigrant intent: Filing I-130 establishes
immigrant intent
 DSOs should not terminate SEVIS record if student maintaining F-1 status
 Recommend maintaining F-1 status while AOS is pending
 No travel after I-130 filed unless using advance parole
 Timing of AOS filing is very important: Recommend 60 days after F-1 entry
to avoid presumption of immigrant intent
 J-1 two year return requirement: Marriage to a US citizen does not excuse
two year return requirement and must obtain necessary waivers
© 2012 CPG Immigration Law Group

22. Citizenship Overview
 LPR for 5 years and physical presence in the US for at least one-half of the
5 year period
 Continuous residence in the US from the date of filing the naturalization
application to the date of approval
 Residence within the state where the application is filed for at least 3
months
 Good moral character for the 5 year period
 Registration for the draft if a male LPR between the ages of 18 and 26
 Knowledge of US history and civics and fluency in English
© 2012 CPG Immigration Law Group

23. Citizenship for Spouses of US Citizens
 If married to, and living with a US citizen for 3 years may file for citizenship
after 3 years as a LPR instead of 5
 Must prove physical presence for one-half of 3 years (18 months)
 Must prove continuous residence for one half of 3 years (18 months)
 Must prove good moral character for the past 3 years
© 2012 CPG Immigration Law Group

24. Citizenship Process
 File N-400 with USCIS
 Biometrics scheduled
 Interview scheduled within 4 – 6 months
 Oath taking ceremony scheduled within 30 – 60 days of initial interview
 Apply for U.S. passport
© 2012 CPG Immigration Law Group

25. Questions or Comments?
Melissa Harms Charina P. Garcia
mharms@harms-law.com charina@cpglawgroup.com
700 Larkspur Landing Circle, Suite 199
Larkspur, California 94939
415.945.9600 (Phone)
415.651.9602 (Fax)
415.