There are currently a total of 140,000 annual immigrant visa numbers under the employment-based immigrant categories. The State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant.
If the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available while remaining in the United States (“Adjustment of Status”). If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. consulate office (“Consular Processing”).
Determining the Priority Date for Availability
An adjustment application cannot be filed and an immigrant visa cannot be granted unless the priority date is current. The priority dates by which visas are being granted are listed in the Department of State’s Visa Bulletin, published monthly.
Under INA § 203(f), immigrant visas are available in the order in which the underlying visa petition was filed. The “priority date” determines an alien’s “place in line.” For EB-1 immigrants, the priority date is the date the employer files the Form I-140 with USCIS. For EB-2 and EB-3 immigrants, the priority date is the date the employer applies for the labor certification, if an individual labor certification is required. If an individual labor certification is not required, the priority date is the date the employer files the Form I-140 with USCIS. If the alien is the beneficiary of more than one Form I-140, the priority date for each Form I-140 is the priority date for the earliest Form I-140. For EB-4 Immigrants, Form I-360 is used instead of Form I-140. The priority date is the date of filing the Form I-360.
The Visa Office of the U.S. Department of State publishes for each month a Visa Bulletin, which specifies the priority date for each immigrant visa classification. If an individual’s priority date is earlier than the priority date shown in the Visa Bulletin for the particular immigrant visa classification, then an immigrant visa is available for the individual’s use. If the Visa Bulletin shows the priority date as “C,” then an immigrant visa is available for all approved visa petition beneficiaries in that classification.
Adjustment of Status
“Adjustment of Status” is the process used by a foreign national who is presently in the United States to become a lawful permanent resident (“Green Card” holder). Generally and with few exceptions, to be eligible, the foreign national must be (1) physically present in the United States by admission or parole; (2) have maintained his or her nonimmigrant status; (3) have no instances of unauthorized work in the United States; (4) be free of inadmissibility and deportability; and (5) have resided for the applicable residency period. The applicant may maintain legal status for the entire time the Adjustment of Status application is pending.
An eligible petitioner must first file with the appropriate USCIS office an I-140 (or in some cases, an I-360) for the alien seeking to immigrate. In most cases, the eligible petitioner is the U.S. employer seeking to employ the alien. Under some situations, the alien himself or herself may file the petition.
If the alien has an approved I-140 and is present in the U.S. in a lawful nonimmigrant status, the alien may apply for adjustment of status under INA § 245 by filing Form I-485 with the appropriate USCIS office. If the alien wants to engage in employment while the adjustment application is pending; the alien may also file Form I-765 with the Form I-485. (If the alien’s priority date is current, the alien may file these Forms at the same time as the employer’s filing of the Form I-140). Note: Most Adjustment of Status applicants should not leave the United States without first obtaining advance parole/permission.
Consular Processing
If the alien is abroad, or is not eligible for adjustment of status, the alien may apply for an immigrant visa at a U.S. consulate abroad once the alien’s priority date is current. If the alien obtains the immigrant visa, the alien becomes a permanent resident when the alien travels to the U.S. with the immigrant visa and is admitted by an immigration inspector.
If you have any questions, you should contact Immigration Solutions Group by clicking here for an appointment.
Loading...