|October 12, 2009|
I-130 Approval Is Not Green Card!
The DHS/USCIS Form I-130, “Petition for Alien Relative,” is the immigration form that is among the most common immigration Form filed with Department of Homeland Security (DHS)/United States Citizenship and Immigration services (USCIS) in for family members.
I have been contacted by many clients once they have received an I-130 Approval Notice on a case they began themselves. Frequently, they ask what they do to get their “green cards” right away.
DHS/USCIS approval of the I-130 is only the necessary first step for permanent residence (“green card”) a family member. The I-130 approval is not the grant of permanent resident status (“green card”). The I-130 is the petition for a relative. The beneficiary must apply for permanent residence (“green card”), and s/he is only eligible for permanent residence after a petition has been approved.
The purpose of the I-130 petition is simply to classify the intending immigrant or beneficiary foreign national as a relative of the petitioner. DHS/USCIS approval of the I-130 means DHS has approved that the required qualifying relationship between the petitioner-sponsor and the beneficiary intending immigrant has been established to its satisfaction. In other words, DHS is satisfied that the beneficiary intending immigrant is the spouse, son, daughter or parent of the petitioner-sponsor.
After the I-130 is approved the beneficiary intending immigrant is then eligible for an initial interview when and as an immigrant visa is available, which may not be right away.
The intending immigrant (beneficiary of the petition) must be adjudicated admissible for the immigrant visa before permanent residence (“green card”) is granted by DHS/USCIS (or in some circumstances by the Department of State at a U.S. Consulate). The adjudication takes place at an Initial Interview. But DHS/USCIS only holds the interview when the beneficiary is eligible for permanent residence; and that happens only when an immigrant visa is available.
Family Preference Categories
There are a limited number of immigrant visas available per government fiscal year. The immigrant visas are allocated based on preference categories. The preference categories are based on whether the petitioner is a United States citizen or a permanent resident, and the family relationship of the beneficiary intending immigrant to the petitioner-sponsor.
"Immediate relatives" of U.S. citizens do not have to wait for an immigrant visa number to become available once the visa petition is approved by DHS/USCIS.
Your preference category, priority date, and country of origin determine your place in line for an immigrant visa.
A U.S. Citizen's "Immediate Relative" is exempt from the Preference System.
“Immediate relatives” of U.S. citizens do not have to wait for an immigrant visa number to become available once the I-130 immigrant visa petition filed for them is approved. This is an exception to the preference category wait for an immigrant visa number to become available.
“Immediate relatives of U.S. citizens include parents, spouses and unmarried children under the age of 21. Not all relatives are “immediate relatives”. Immigrant visas are not immediately available for U.S. citizens' relatives who are not “immediate relatives” and spouses and children of permanent residents.
The advantage of qualifying as an immediate relative of a U.S. citizen is that there is no numerical limitation or backlog for sponsorship. DHS/USCIS and the Department of State (DOS) refer to this as the "visa number is immediately available." There is a waiting line for immigrant visas to become available because there are more petitions for immigrant visas than there are numbers of visas available (per year).
The preference category system is basically the waiting time is determined by the petitioner's status (U.S. citizen or permanent resident) and the beneficiary intending immigrant’s family relationship to the petitioner-sponsor. Your preference category, priority date, and country of origin determine your place in line for an immigrant visa.
The wait is administered through preference categories.
Family-Based Preference Categories
1st Preference (Numbers of visas available per year: 23,400)—Unmarried Sons and Daughters of U.S. Citizens
2A (Numbers of visas available per year: Approximately 135,000)—Unmarried Sons and Daughters of LPR (Permanent Residents)
2B (Numbers of visas available per year: Approximately 35,000)—Spouses and Children of LPR-B. Unmarried Sons and Daughters (21 years of age or older) of LPR
3rd Preference (Numbers of visas available per year: 23,400)—Married Sons and Daughters of U.S. Citizens
4th Preference (Numbers of visas available per year: 65,000)—Brothers and Sisters of Adult Citizens
Spouses, children and parents of U.S. citizens are “immediate relatives” and they are not included in the preference categories because the immigrant visas are immediately available for them.
Generally, DHS/USCIS adjudicates the I-130 petition, often approving the petition, within months of the petition being filed. However, the approved petition sits on the shelf as the beneficiary intending immigrant waits in line for the visa to become available.
Generally, unless the beneficiary intending immigrant is an immediate relative of a U.S. citizen, s/he has at least several years to wait even after the I-130 petition is approved.
Visa Bulletin Tracks the Waiting Line
The Department of State (DOS) tracks the visa numbers. DOS publishes a monthly Visa Bulletin that indicates the “priority dates” for approved petitions. The petition priority date is the date the petition was initially filed with DHS/USCIS.
The Visa Bulletin is where the Department of State keeps track of whether a foreign national intending immigrant with an approved family preference petition (I-130) can see whether their “priority date” is current and whether it is now possible to file the I-485 for the “green card” id s/he is physically present in the United States or whether the DOS will proceed to schedule a visa interview at the U.S. Consulate is s/he is not in the United States.
No Immigration Benefits While Waiting for a Visa Number
During the wait after the I-130 was approved generally no immigration benefits are available. If one is present in the United States, but not in lawful status, s/he is subject to removal even though the I-130 was approved, unless the immigrant visa number is available!
An employment authorization document (work permit) is generally not available until one is in a visa lawful status that provides for employment authorization or has filed the I-485, “Application to Adjust Status or Register Permanent Residence”.
Don’t Get Caught in the I-130 “Jackpot”
I have met with many unfortunate clients and their relatives who either handled their I-130’s themselves or worked with a notario or immigration consultant who placed them in a real immigration jackpot—and either ended up in removal or left the United States and went to the consular interview outside the U.S. after the I-130 was approved.
Look, if you are in the U.S. not in lawful status you are very likely subject to removal. Moreover, even if you are an immediate relative of a U.S. citizen, but you did not enter the United States lawfully, when the I-130 is approved the DOS notifies you to an immigrant visa interview at a U.S. consulate.
Anyone who has accrued more than 180 days of unlawful presence in the U.S and departs the U.S. triggers a bar to admissibility that requires an approved waiver before an immigrant visa will be granted. The waiver is not easy to get. You have to remain out of the U.S. until an immigrant visa is granted. You have to remain out of the U.S. for at least 3 years, and maybe as many as 10 years, or be granted a waiver. If you re-enter the U.S. unlawfully before waiting the 3 or 10 years you are subject to a permanent bar to admissibility for which there is not waiver.
When the Immigrant Visa Number Becomes Available
When the visa number becomes available, which is also referred to as the priority date is current, is when the intending immigrant beneficiary can take the next step and apply for permanent residence.
If the beneficiary intending immigrant is in the U.S and entered lawfully, has remaining in status, and has not departed and re-entered unlawfully, s/he can submit the Form I-1485 and apply to adjust status to permanent resident.
If s/he was lawfully admitted but is no longer in lawful status, and has accrued more than 180 days out of status s/he may need a difficult to get waiver before DHS/USCIS will grant permanent residence. If s/he goes ahead and files the I-485, but is denied adjustment of status to permanent resident (“green card”) because of the unlawful presence, or other inadmissibility, s/he may be removed from the U.S.
If the intending immigrant beneficiary is not in the U.S. s/he will have an immigrant visa interview at a U.S. consulate to determine if s/he is admissible and when s/he enters the U.S. s/he usually enters as a permanent resident (with the “green card”).
It’s Good to be an Immediate Relative
The exception to the waiting lines, priority dates are immediate relatives. Immediate relatives are: (1) spouses of U.S. citizens; (2) children under 21 of U.S. citizens; and, (3) parents of U.S. citizens when the citizen is at least 21. There are always visa numbers available for these people in unlimited numbers.
An immediate relative who is physically present in the U.S. and who entered with a lawful entry is allowed to file the I-130 and the I-485 concurrently. S/he can also apply for the employment authorization document or work permit at the same time. DHS/USCIS concurrent processing generally takes less than 5-6 months currently.
Whereas, intending immigrants in the family-preference categories must first wait for an I-130 to be approved, then wait for a visa number to become current, which could take years as described above, before they can file for permanent residence (the “green card”).
Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world because immigration law is a federal law practice not limited attorneys in a particular state.
Gerald Goulder has been a licensed attorney and counselor at law for 30 years. His practice is exclusively immigration, visa and citizenship law. He has broad experience with family sponsored green cards, naturalization and citizenship, employer sponsored green cards, employment and work visas like H-1B visas and other nonimmigrant visas, and I-9 employment eligibility and employer sanctions laws.
His broad professional background includes working as a special state prosecutor, owning and operating a business, serving on boards of non-profit organizations, religious organizations and private corporations, and taking political leadership roles. Mr. Goulder has also worked as an Assistant Attorney General of Ohio, and Ohio Special Prosecutor in law enforcement and prosecution, and he was appointed Special Counsel to the Attorney General of the State of Ohio. Although his private practice initially involved commercial, business, and corporate/commercial real estate matters,
Gerald Goulder, managing partner of Goulder Immigration Law Firm, is a North Carolina immigration lawyer with clients throughout the world, guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Goulder Immigration Law Firm.