How A Foreign National In The United States May Request A Change Of Status To Become A Permanent Resident

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Most people become eligible to immigrate and become lawful permanent residents of the United States in one of two ways:

1. By being sponsored by a close family member who is a United States citizen or permanent resident;

2. Based upon employment or occupation.

The first step in establishing eligibility for either type of classification is the filing of a visa petition. A United States citizen or lawful permanent resident must file Form I-130, "Petition for Alien Relative", to show that a family member is eligible for an immediate relative or family sponsored visa classification. The law limits the total number of immigrant visas which may be issued each year in most visa categories.The law also limits the total number of immigrant visas which can be issued to aliens born in any single country.

If a visa cannot be immediately issued because the demand is greater than the number of visas allowed by law in that year, the relative of employee's name will be placed on a waiting list.

The place on the waiting list is determined by the date the visa petition is properly filed. In some cases a relative or employee may have to wait a year or more until their name is reached on the waiting list. Therefore, it is important to have the visa petition filed as early as possible. The relative or employee may not apply to become a lawful permanent resident until a visa number is immediately available or considered "current".

Certain close family members of United States citizens are considered immediate relatives and exempt from many restrictions that apply to other immigrants. Visas are considered immediately available or current for all immediate relatives and there is no waiting list for them. The four types of immediate relatives are:

1. Spouses of United States citizens;

2. Widows or Widowers of United States citizens who died within the past two years, if they had been married to the citizen for two or more years and have not since remarried;

3. Children of United States citizens, if the child is unmarried and under the age of twenty-one;

4. Parents of United States citizens, if the citizen is twenty one years old or older.

The family sponsored preference immigrant classification is divided into four categories. There may be a waiting list for visas in some or all of these categories.

The first category includes the unmarried sons and daughters of United States citizens, if the son or daughter is over the age of twenty-one.

The second category is divided into two sub-categories. Sub-category A includes all spouses of lawful permanent residents and any unmarried children of lawful permanent residents if the child is under the age of twenty-one.

Sub-category B includes unmarried sons and daughters of lawful permanent residents, if the son or daughter is twenty one years of age or older.

The third category includes all married sons and daughters of United States citizens, regardless of age.

The fourth category includes brothers and sisters of United States citizens, regardless of age. The employment-based immigrants classification is divided into five categories. There may be a waiting list for some or all of these categories.

The first employment-based preference is divided into three sub-categories:

A. is for persons with extraordinary ability;

B. includes outstanding professors and researchers;

C. is for certain multinational executives and managers.

The second employment-based category is divided into two sub-categories:

A. includes members of the professions holding advanced degrees;

B. is for aliens of exceptional ability.

The third employment based category is divided into three sub-categories:

A. includes skilled workers;

B. is for professionals;

C. includes other or unskilled workers.

Further information about visa number availability may be obtained by directly contacting the Department of State at (202) 663-1541.

Most immigrants obtain immigrant visas at United States consulates or embassies abroad. However, some relatives or employees temporarily in the United States may be able to become lawful permanent residents without having to leave the country through a procedure called adjustment of status.

A visa number must be current or immediately available before a relative or employee may apply for adjustment of status. Only persons who have been inspected by an immigration officer at the time of entry into the United States and were admitted or paroled into the country may apply for adjustment of status.

Certain other requirements must also be met. All persons who:

1. Were last admitted as crew members of vessels or aircraft;

2. Were last admitted under the transit without visa category;

3. Were last admitted to Guam under the Guam visa waiver program;

4. Are subject to the two year foreign residence requirement because they currently have or have had a "J" exchange visitor nonimmigrant visa classification may not apply for adjustment of status.

The following three restrictions do not apply to immediate relatives of United States citizens. Family-sponsored and employment-based preference immigrants may not apply for adjustment of status:

1. If they were employed it the United States without immigration authorization any time after January 1,1977;

2. If they stayed in United States after their permission to remain expired or if they otherwise violated nonimmigrant regulations at any time after November 6,1986;

3. If they were last admitted to the United States without a visa under the visa waiver pilot program.

Adjustment of status applicants must file form 1-485 entitled, "Application for Status as Permanent Resident", with the immigration office having jurisdiction over their place of residence in the United States. All employment-based immigrants must show that a visa petition was previously approved for them. Family-sponsored immigrants who have visa numbers that are immediately available or current and all immediate relatives may either submit their relative's visa petition with the Form I-485 application or show that it was previously approved.

All adjustment of status applicants will be notified of when to appear for the required personal interview before an immigration officer. If photocopies of documents were provided with either the visa petition or the adjustment of status application, the applicant must bring the original copies to the interview.

Applicants must also bring their passports and Form I-94, entitled "Arrival-Departure Record", to the interview. The Form I-94 is the small white immigration form which is normally stapled in the passport by the immigration officer during inspection at the airport or border.

Certain other persons who are in the United States and for whom visas are immediately available may also be able to become lawful permanent residents without being required to leave the country. The adjustment of status requirements may vary, depending upon the immigrant classification.

Additional information about special requirements is provided on the instructions with the Form I-485 application.


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