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How to Obtain a Green Card in the USA

The lingering question in most immigrants’ minds is, “How can I become a permanent resident (green card holder) in the USA?” Read Attorney Sarjo Barrow's blog about the steps to obtaining a green card in the U.S.

The lingering question in most immigrants’ minds is, “How can I become a permanent resident (green card holder) in the USA?” The two common ways to obtain permanent residency in the USA are: (1) family-based immigrant petition; and (2) employment-based immigrant petition.

A family-based immigrant petition is a petition filed by a U.S. citizen or Lawful Permanent Resident (LPR) on behalf of an alien (immigrant) (and their family, in certain circumstances), if there is a legal familial relationship.

The Immigration Law in the USA categorized family relationships into two types. There are: (1) immediate family members/relatives (spouses, parents, and children of U.S. citizens) and (2) other family members. The second category is usually made up of adult sons and daughters of U.S. citizens, spouses and children of LPRs (green card holders), and brothers and sisters of U.S. citizens. This second group of family is subject to priority date backlogs. This means you must wait in line before you can get a green card. Also, your classification will determine whether you can stay in the USA to wait for your green card, or if you must return to your native country to wait.

The first stage in obtaining a green card for the alien/foreign national family member involves the U.S. citizen or the LPR filing a Form I-130 on their family member’s behalf. Now, if you are an immediate family member who lawfully entered the USA, you may concurrently file for an adjustment of status (Form I-485). If you are outside of the USA, (even though you may be an immediate family member), you would have to wait for the Form I-130 to be approved by USCIS and the case sent to the National Visa Center for consular processing at your home country.

Immediate Relatives

INA §203, defines an immediate relative as: 

  • Husband or Wife of a U.S. Citizen;
  • Unmarried Child (under age 21) of a U.S. Citizen;
  • Parent of an adult (21 years and older) U.S. Citizen.

Family-Based Preference Categories

INA §203, defines the other family members as follows:

  • Unmarried Sons and Daughters of U.S. Citizens – First Preference Category (F-1)
    • Son and/or Daughter may be of any age
    • Son and/or Daughter may also bring their unmarried children under age 21
  • Spouses and Children, and Unmarried Sons and Daughters of Lawful Permanent Residents – Second Preference Category (F-2)
    • Spouses and Children (F-2A)
      • Children under this category must be unmarried and under age 21
    • Unmarried Sons and Daughters (F-2B)
      • Applicable to unmarried children age 21 or older
      • Son and/or Daughter may also bring their unmarried children under age 21
  • Married Sons and Daughters of U.S. Citizens – Third Preference Category (F-3)
    • Son and/or Daughter may be of any age
    • Son and/or Daughter may also bring their spouse
    • Son and/or Daughter may also bring their unmarried children under age 21
  • Brothers and Sisters of adult U.S. Citizens - Fourth Preference Category (F-4)
    • Brother and/or Sister may be of any age
    • Brother and/or Sister may also bring their spouse
    • Brother and/or Sister may also bring their unmarried children under age 21

Definition of Child

The term “child” is defined under INA §101(b).  Generally, it refers to an unmarried person under 21 years of age. However, whether a foreign national is to be considered a “child” under the INA is dependent upon many factors, including whether the foreign national was born in or out of wedlock, whether a step-parent/step-child relationship existed prior to the foreign national reaching 18 years of age, whether the parent-child relationship exists due to adoption, etc. 

Additionally, a foreign national over the age of 21 may still meet the definition of “child” under the INA because of the Child Status Protection Act (CSPA) in certain circumstances. 

Priority Date

A foreign national’s priority date is the date the immigrant petition was properly filed with USCIS on behalf of the foreign national.  This date can be found on USCIS Form I-979, Notice of Action, or USCIS Receipt Notice as called. 

If the foreign national has a priority date on or before the date listed on the Visa Bulletin Board, then the priority date is current and the person is  eligible for an immigrant visa and may proceed to the second and final stage of the green card process either through adjustment of status (if in USA and still maintaining valid status) or through Immigrant Visa Processing.  

Waiting for Priority Dates to become Current

Due to high demand for immigrant visas, most foreign nationals with approved immigrant petitions must wait in line until their priority date.  This has caused backlogs in several preference categories and thus resulted in a several year waiting period.  Moreover, the priority dates can regenerate and delay the process even further.

The length of time a foreign national must wait “in line” before receiving an immigrant visa or adjusting status depends on:

  1. The demand for and supply of immigrant visa numbers (how many petitions are being filed)
  2. The per country visa limitations (some countries are subject to special “lines” because of the demand stemming from those countries, including India, China, Mexico, and Philippines)
  3. The number of visas allocated for the applicable preference category (which preference category the foreign national belongs to)

Visa Bulletin Board

The Visa Bulletin Board summarizes the availability of immigrant numbers during a given period. For example, “Final Action Dates” and “Dates for Filing Applications.” The Department of States publishes a monthly report on the Visa Bulletin Board. The notice serves as a reference for petitioners, beneficiaries, government agencies, and attorneys to know when to process an application.

Preference Categories May Change

Considering that it may take many years in some situations for a priority date to become current, there is a chance that a foreign national who previously qualified under a certain preference category is no longer eligible for that preference category, but may be eligible for another.  This is true for those preference categories that require the foreign national to be married/unmarried and impose age requirements, if a lawful permanent resident petitioner becomes a U.S. citizen, or if a petitioner passes away. 

Finally, while the priority date is pending, a foreign national may upgrade or downgrade in family-preference categories by either automatically converting to another preference category, requesting that USCIS transfer them to another preference category, or sometimes they may no longer be eligible for a preference category.

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