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In many cases where a noncitizen is applying for legal permanent resident status also known as a green card through either a family based green card petition or employment based green card petition, the noncitizen may need to complete the application by applying for an immigrant visa through the Department of State. This application process is called consular processing. However, there are cases where the noncitizen is present in the United States in lawful immigration status or who may qualify for an exception to the rule of applying from a consulate to allow application of the green card through adjustment of status with the United States Citizenship and Immigration Service also known as USCIS. We have discussed the circumstances that can qualify a noncitizen to apply for a green card through the adjustment of status process here.
First Step in applying for a Green Card through Adjustment of Status-Filing an Immigrant Petition or Department of Labor, Labor Certification Application.
The first step in applying for a green card through adjustment of status is to have the qualifying petitioner submit the initial green card petition with USCIS. For green cards based on a family relationship, the petition to be processed by USCIS is known as the I-130 petition, while the employment-based petition is known as an I-140 petition.
All family based green card green card through adjustment of status cases require a qualifying family member to file an I-130 petition. For family-based cases, qualifying petitioners include U.S. Citizen or Legal Permanent Resident Spouses, U.S. Citizen or Legal Permanent Resident Parents, U.S. Citizen Siblings and U.S. Citizen sons or daughters aged 21 years or older.
In employment-based green card through adjustment of status cases, a petitioner can be any employer, but the main requirement for most employment-based cases is for an employer to demonstrate that there are not enough qualifying employees for the position that the noncitizen is expected to fill. Therefore, before an employer files the employment-based petition form, I-140 with USCIS, most employment categories will require the employer to undergo a recruiting process to be able to obtain what is known as a labor certification from the Department of Labor.
Note that there are employment-based categories for related employment positions that will not require this recruitment process or even a petitioning employer where the noncitizen can self-petition. These cases exist under the EB-2 National Interest Waiver category where the noncitizen can demonstrate possessing an advanced degree or expertise significantly above the ordinary in the fields of science, art or business, or the EB-1 category where noncitizens can demonstrate an extraordinary ability in the sciences, arts, education, business, or athletics through national or international acclaim or recognition.
It is important to understand that although agencies such as USCIS, the Department of Labor and the Department of State are agencies within the U.S. government that work with each other in processing a green card application, they are still different agencies which require separate applications with each agency to eventually complete the goal of the noncitizen receiving the eventual green card.
Second Step in Applying for a Green Card through Adjustment of Status-Submitting form I-485 before USCIS
Upon processing and approval of the initial immigration petition with USCIS, the beneficiary can now consider submitting the form I-485 before USCIS which is the last application required to complete the filing of the green card through adjustment of status. However, for the I-485 to be accepted by USCIS, the filing date also known as the priority date on the initial immigration petition must be current where USCIS is processing I-485 applications with immigration petitions or labor certifications filed on or before the priority date published by the Department of State in what is called the Visa Bulletin. We discuss priority dates and the visa bulletin here. Additionally, when the initial immigration petition, form I-130, I-140 or Labor Certification has a priority date that is current or where the petitioning family member of an I-130 is an immediate family member, the immigration petition and form I-485 can be filed concurrently where both applications will be processed at the same time.
Civil documents in support of the application are also filed with the application which consist of biographical type documents such as birth certificates, marriage certificates and passports as well as required documents proving that a relationship is real in marriage-based family cases.
In all family-based cases, the petitioning family member must also provide USCIS form I-864 which reports the number of family members supported for a green card and the financial income of the petitioner or of a financial co-sponsor.
Finally, a medical exam must also be submitted with the application which is performed by an authorized physician in the United States.
Almost all green card through Adjustment of Status applications will also allow for the noncitizen to apply for work authorization also known as an employment authorization document, by submitting form I-765 and an application for a travel authorization document, by submitting form I-131 with the adjustment of status application. The travel authorization and work authorization are intended to be issued while the form I-485 is being processed.
After all USCIS forms and supporting documents are submitted, the case will be transferred to a local USCIS field office where the case will be scheduled for fingerprinting of the beneficiary. After fingerprinting, a USCIS officer will be reviewing the application and performing a background check to then determine if any other information or documents are required, or if an interview is required.
Final Step in Obtaining a Green Card through Adjustment of Status - USCIS Interview
At the interview, the beneficiary is expected to bring original versions of the civil documents, the appointment notice and in marriage cases the most recent documents demonstrating that the couple is living together and sharing financial obligations and benefits.
The officer will then interview the beneficiary and decide whether to approve or deny the application. In family-based cases, the petitioner will be required to attend the interview with the beneficiary especially in marriage-based cases where the officer may question about the circumstances surrounding the establishment of the relationship and question about certain personal aspects related to the marriage.
If an officer determines that the noncitizen is ineligible for the green card through adjustment of status, the noncitizen should seek assistance of an immigration attorney to determine how the noncitizen may be ineligible and if it is possible to overcome the ineligibility. In most cases, if the officer determines a noncitizen is ineligible, but the ineligibility may be overcome, the officer will indicate to the noncitizen the possibility of overcoming the ineligibility and allow the noncitizen opportunity to overcome the ineligibility issue. Regardless, an attorney should be consulted before or after the interview to understand the ineligibility and plan for presenting a case to overcome the ineligibility.
Some cases may require further review known as administrative processing which could be based on many different reasons but is most typically caused by a security concern in the noncitizen’s background that requires more thorough security checks.
If the green card through adjustment of status case is approved, the officer will send a notice confirming approval of the green card through adjustment of status through the mail, followed by the actual green card.
Once the beneficiary receives the green card, there are no further steps, other than to wait for the necessary period of time to consider applying for naturalization.