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Guide to Adjustment of Status for U.S. Immigration

Have you been living in the U.S. on a temporary visa or without status and seeking to make your stay permanent? You will need to undergo the adjustment of status (AOS) process to get your permanent resident card. Here is an overview of the steps to adjustment of status.

1. Determine Your Eligibility for a Green Card

There are different categories of green card, and each one under its own eligibility criteria. One can think of them as falling into one of three types; there are family-based green cards, employment-based green cards, and green card in some special categories of humanitarian based green cards for refugees, asylees, victims of abuse and other special cases. The category you are applying for will determine your eligibility requirements. You can check your eligibility requirements here.

2. Filing of Immigrant Petition

Most green card categories require someone to file your immigrant petition with the United States Citizenship and Immigration Services (USCIS) on your behalf, while some allow you to file the petition yourself. This is dependent on the eligibility requirements for the category you are applying for. Whether you are being sponsored by someone else or you are self-sponsoring your petition, one of the following immigrant petition forms must be submitted to USCIS, depending on the category:

  1. Family-Based Petition: Form I-130
  2. Employment-Based Petition: Form I-140
  3. Refugee/Asylee Petition: Form I-730
  4. Application for Asylum and for Withholding Removal: Form I-589
  5. Immigrant Entrepreneur Petition: Form I-526
  6. Petition for U Nonimmigrant Status: Form I-918
  7. Petition for Amerasian, Widow(er), or Special Immigrant: Form I-360
  8. Petition for Qualifying Family Member of a U-1 Nonimmigrant: Form I-929

3. Check Immigrant Visa Availability

After submitting their immigrant petition, most green card categories require applicants to queue on the waiting line for the availability of an immigrant visa. For a few categories, however, there is always availability of visas. For instance, if your adjustment of status is sponsored by a lawful permanent resident family member, particularly someone other than a spouse, you will most likely have to queue on the waiting line due to the limited number of visas in that category. On the other hand, if you an immediate relative (child or spouse) of a U.S. citizen, you would not have to wait as with sponsorship through an immediate family relative adjustment of status may take place immediately.

4. File Form I-485

All adjustment of status applicants must file Form I-485 petition during their application process. Unlike the immigrant petition that mostly requires having someone file on your behalf, Form I-485, Adjustment of Status Petition must be submitted by you (the applicant/beneficiary). If you are applying as an immediate family relative of a U.S. citizen, you can submit your I-485 petition concurrently (at the same time) with the immigrant petition or at any time thereafter.However, if there is a limited number of visas in your own category, you must wait until an immigrant visa is available for you before you can submit your Form I-485.

5. Attend Adjustment of Status Appointments and Interview

After receiving the Form I-485 petition, USCIS will send the applicant a mail containing information on how to complete your biometrics. They will also be scheduled for an interview (if applicable). Ensure you attend the appointments and complete all the required procedures.

6. Receive a Decision and Get Your Green Card

USCIS has the prerogative to review an adjustment of status application and after that, decide whether to approve or deny it. You will receive the decision on your petition after completing all the above processes. If the adjustment of status application is approved, the applicant will receive their green card. This is also known as Permanent Resident Card, which will be received little later after the decision.

What happens to my Green Card if my Citizenship Application is denied?

Presently, the average naturalization (citizenship) process can take 12 to 15 months; some USCIS field offices take even longer, depending on volume and staffing levels.

In the last few years, there has been a significant spike in the number of people applying for naturalization. We often hear what will happen to their Green Card if their citizenship application is denied.

Why did my citizenship application get denied, and what does that mean for my green card?

Below are some of the common reasons behind why a citizenship application may get denied:

  • Error or mistruth in the citizenship application
  • Negligence towards tax payment
  • Below average performs in the citizenship interview
  • Failure in the Civic test
  • Poor command in the English Language
  • Expired green card
  • Negligence towards paying child support
  • Having a criminal record
  • The applicant does not fit the edibility criteria.

Not all of these cases will mean that you will lose your green card or your permanent residency, and many applicants get second chances. For example, failing the English proficiency test will not place your Green Card at risk. However, other more severe reasons related to citizenship denial can threaten your permanent resident status. For example, maybe you have an infectious disease that you did not mention while applying. In this case, one was involved in significant criminal activity or acquired permanent residency through fraudulent activity.

Therefore, we can’t stress enough how important it is for the applicant to be honest while filling out their application forms because USCIS will review your file to look for information inconsistent with your immigration file. If USCIS finds any such information about you, then your citizenship application may be denied, and your green card along with lawful permanent residency status can be at risk.

What can I do to minimize the risk of my naturalization application getting denied?

To avoid denial of the application, citizenship applicants need to carry out research. If you are worried about potential inconsistencies, get in front of the issue through consultation with an experienced attorney. After applying (Form N-400), start taking the necessary steps to prepare for the interview. An interviewer will be looking for your ability to comprehend and communicate in English. If you are older than 55 years and have resided in the United States for more than 15 years, you are not subject to the English proficiency requirement. If you think your English requires some improvement, take an English language learning class before the interview. Do not be nervous and stay calm during the interview. Be truthful and ensure your responses in the interview match the written responses in the N-400 form!

U.S. Immigration Options for Canadian Nationals

Options for Canadians to immigrate to or live and work in the United States vary depending on why one is seeking to become a U.S. resident. Some of the most common reasons Canadians move to the United States include education, employment, business opportunities, and the more favorable tax regime in many U.S. jurisdictions, including Puerto Rico.

Employment

Individuals interested in moving to the United States to look for new career opportunities should know that to be eligible, they must be sponsored by an employer or qualify for a National Interest Waiver. Below are a few categories and visa options for individuals interested in acquiring permanent residence in the United States based on their employment skills.

EB1 Category: This category is for (A) individuals with extraordinary skills and abilities in arts, science, education, athletics, or business; (B) tenure track professors and researchers; (C) multinational executives and managers.
EB2 Category: This category is for the advanced degree professionals and extra skilled employees in business, science, or arts. The self-petition option under a National Interest Waiver does not require a US employer sponsor or job offer.
EB3 Category: This field is for skilled workers, professionals, and ineligible workers for the EB1-EB2 categories (usually holding a bachelor’s degree).

TN NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created unique economic and trade relationships for the United States, Canada, and Mexico. The TN nonimmigrant classification permits qualified Canadian citizens to seek temporary entry into the United States to engage in business activities at a professional level.
Among the types of professionals eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:
– You are a citizen of Canada;
– Your profession qualifies under regulations;
– The position in the United States requires a NAFTA professional;
– You have a prearranged full-time or part-time job with a U.S. employer; and
– You have the qualifications to practice in the profession in question.

Investment

E2 Treaty Investment Visa
E2 Visa grants a business investor to enter the United States for the sole purpose of setting up a business. However, this visa does not give you permanent residency, but one advantage of the E2 visa is that it can be continuously extended as long as the business is viable. The investor can either invest in a new or existing company.

EB-5 Visa
The EB-5 visa provides a method of obtaining a green card for foreign nationals who invest in a “new commercial enterprise” in the United States. The EB-5 program “affords foreign nationals and their spouses and unmarried children under age 21 the ability to obtain a U.S. visa based solely upon a minimum investment in a for-profit enterprise that creates or retains a specified number of jobs”. To obtain the visa, individuals must invest $1,000,000 or $1,800,000 after Nov 21, 2019 (or at least $500,000 or $900,000 after November 21, 2019, in a Targeted Employment Area – high unemployment or rural area), creating or preserving at least ten jobs for U.S. workers excluding the investor and their immediate family.

Education

The United States is known for having world-class educational institutions and if you are interested in immigrating to the U.S. for education, then below are two of the visa options one may pursue:

F-1 Student Visa
The F-1 Student visa is ideal for individuals planning to enroll and study in institutions such as elementary or academic high schools, universities, seminaries, accredited colleges, conservatories, or language training programs. Eligibility criteria for the F-1 student Visa are that the program you are enrolled in must culminate in receiving a degree, diploma, or certificate. The Institute must have authorization from the U.S. government to enroll international students.

M-1 Student Visa
The M-1 visa is issued for students planning to attend vocational schools or other non-academic programs. Also, M-1 Visa holders are not allowed to work throughout their education.
Note that if, after completing your graduation, you can remain in the United States to complete “Practical Training” (OPT) and can then remain permanently through an employment-based visa.

Marriage

Below are immigration options for individuals engaged/married to U.S. Citizens and are planning to settle down in the United States.

K-1 fiancé Visa
Individuals who plan to get married in the United States should apply for a K-1 fiancé visa. The K-1 visa will allow you to enter the U.S. for 90 days’ time period and get married. If you get married within 90 days, you will be eligible to apply for lawful permanent residence in the United States.

Immigrant Visa for a Spouse of a US Citizen (IR/CR1 VISA)
The IR1/CR1 Visa is a Family-based green card ideal for Canadians married to U.S. citizens. It permits a U.S. citizen’s spouse to live with their partner in the United States as a permanent resident.

Will Congress Eliminate Per-Country Limits on Employment-Based Visa?

This article addresses some of the latest developments that concern individuals who have lived through a decade-long immigration backlog, especially for individuals born in India and China.

The US immigration system in terms of the employment-based category works by focusing the immigration priority on chargeability, determined by the country of birth. Individuals born in larger countries are subject to a cap limit on the number of visas issued for individuals from that country. Presently the cap is 7.5 percent. This means that one country may only take up 7.5 percent of the visas available. Due to a large number of skilled workers from India and China, you have backlogs in employment-based categories.

Let’s talk about whether this proposed legislation will solve this issue and what this means for you and your family. Within the US, there are two legislative bodies,  the House of Representatives and the Senate. For a proposed bill to become law, both legislative bodies must approve it before being sent to the President; under current rules; the 100 member Senate requires a supermajority, 60 votes to pass a bill.

Zoe Lofgren, along with Republican John Curtis, recently introduced the “Eagle Act.” Unfortunately, immigration laws are challenging to pass, and to become law, any bill must gain the approval of the House of Representatives and receive support from democratic and republican senators. Thus while the “Eagle Act” (proposes an effectively phased-in elimination of country quotas) is being introduced, for it to become a law, it will need at least ten Republican senators to come forward and support the bill without coming up with a carve-out for China. This is because as soon as they craft out restrictions on Chinese immigration, you are going to have a considerable pushback from the House. This is due to historical precedents of discrimination toward Chinese in the United States as there used to be a racist law called the “China Exclusion Act” which is now criticized and considered a mistake.

As of now, 75% of the current employment-based immigration backlog comprises Indian-born applicants. In the current backlog situation, many Indian workers cannot get permanent residence and a green card within their lifetime. With the Eagle Act, per-country caps on employment-based immigration would be effectively removed. Countries with the highest number of applicants, i.e., India and China, will receive the maximum under the law for the first three years of 30% of all employment petitions.

A concerning issue that may stall the proposed legislation is the rising level of anti-China sentiment among lawmakers. This may result in a poison pill within the legislation, where some of the more nationalist Republicans senators, might want to add an amendment in the bill, which may then receive disapproval from the democratic-controlled House of Representatives. Thus, this bill becoming law will likely depend on the ability of lawmakers to craft it in a way that would avoid adding controversial initiatives, such as anti-China language, into the bill.

While introducing this bill early in the legislative term is encouraging, it still has a long march before it becomes law. Even if the bill passes this year, one will be looking at a two-year process for the account to be implemented to the degree that it has practical benefits. Seeking advice from a result-oriented immigration law firm such as Silmi Law can be favorable for you and your family. Silmi Law will help make sure that you are headed in the right direction and considering all available options.

EB1A and EB2 National Interest Waiver for Semiconductor Manufacturing

here are two branches of Immigration law that we deal with regularly, one being family-based Immigration whereas the other is employment-based. However, today our focus is on employment-based Immigration and some recent developments relating to self-petition in the employment-based categories. On increasing demand from people willing to start businesses in the US, we are going to discuss one area that has gained popularity and that the government has shown a need for in the US.  The popular area of interest is semiconductor manufacturing as the US is currently relying on foreign manufacturing of semiconductors. Individuals with knowledge, experience, and expertise in the semiconductor field are eligible for self-petition. The two self-petition categories under the US Immigration law are the EB2 employment-based second category ‘The national Interest waiver’ and the first category EB1A for Individuals of extraordinary ability.

The requirements for EB2 national interest Waiver are that you are required to have a master’s degree along with any major contribution of significance to your field. The qualifications for EB1A require business-related contributions of major significance along with proof of originality and significance to the field of endeavor. Having Publications helps, however, it is not necessary.  Semiconductor manufacturing is the most in-demand field in the US at this moment and if you are qualified to perform any role in the semiconductor manufacturing industry you are very likely to see a positive response in your petition. Moreover, when you submit a petition either in EB1A or EB2, describing and narrowing down your field of endeavor can be beneficial. Moreover, if you belong from any niche relating to Semiconductor manufacturing by narrowing down your field you will be demonstrating to the government that you specialize in an area that is of national interest making your petition stand out and get accepted.

Another thing to keep in mind is that your ability to migrate to the US is impacted by your country of birth, regardless of citizenship. If you are born in India or China, even if you are a citizen of Canada you are subject to a country cap based on country of birth. Thus, if you are interested in migrating to the US swiftly you will have to file a petition in the EB1 category. Also, your spouse’s country of birth will impact what petition you should file. Thus, for people born outside India or China, it is advised to file an EB2 national interest waiver as that is a less complicated requirement to meet. Moreover, when deciding which petition to file it is important to keep in mind that at this moment EB1 ability cases can file premium processing which comes at the cost of two thousand five hundred dollars that is paid to the government in exchange for the decision of your case in 15 business days which without premium processing would take about a year. In regards to EB2 national interest, the waiver will take around 8 months to process and there is no option to file premium processing.

E-2 Business Investor Visa

The E-2 treaty investor visa is a highly advantageous visa that foreign entrepreneurs can use to live and operate their business in the United States. Like most US visas, the E-2 visa involves a series of processes and requirements an applicant must meet. However, with the right information and guidance, you can acquire the visa on time. Here we look at the requirements and benefits of an E-2 visa.

E-2 Visa Requirements

1.National of a Treaty Country

The first requirement is that you must be a national of a country that maintains treaties of commerce and navigation with the United States. There is a long list of countries having this treaty with the United States. Before proceeding with your E-2 visa process, the first thing is to check here to see if your country is one of the treaty countries.

2. Substantial Investment

After confirming your eligibility based on your nationality, the next E-2 visa requirement is to ensure that your intended investment is a “substantial investment.” This requirement can be somewhat murky for many applicants, as there’s no specific benchmark for it. Unlike the EB-5 visa, with its minimum investment amounts clearly stated as $900,000 or $1.8 million, the E-2 visa has no specific investment amount. The rule only states that the investment must be sufficient to ensure the successful operation of the enterprise. So, this means the capital must be relative to the kind of business enterprise you will undertake.

It is viewed on a case-by-case basis. This means some applicants may qualify with some thousands of dollars. In contrast, others might need hundreds of thousands of dollars, depending on the scale of enterprise they are venturing into. For instance, an applicant seeking to acquire an E-2 visa based on his or her investment in a restaurant may not need up to $100,000. We have successfully obtained E-2 visas for many clients with as low as 40,000$ investment amounts or even lower within our practice. Meeting the “substantial investment” amount isn’t really about how much you are investing; it’s more about how you can convincingly present your case. This is why the importance of working with an experienced attorney cannot be overemphasized.

3. The Investment Amount Must Be Irrevocably Committed

Another requirement is that the investment must put your capital at risk, and it is irrevocably committed to the enterprise. And this must happen to acquire the visa. If, for instance, you are investing in an existing business, your capital must have been committed to the business before you’d be issued a visa. Simply depositing the fund in a business account will not qualify for this requirement. Though this may somehow appear risky to many applicants, there is a safe way around it. To ensure the safety of the fund in case of any unforeseen event, we advise our clients to put the fund in an escrow account while the investment and visa applications are being processed. An escrow account is a safe account belonging to a third party, such as an attorney. With an escrow account, if you get the visa, the fund would be transferred into the business, and if you don’t, the fund can be safely returned to you.

 

4. The Business Must Be a Real Operating Enterprise

It is also crucial that the business enterprise is a real operating business. It must be a business establishment that engages with people in the United States. Speculative, idle, fictional, or virtual investment does not qualify.  Also, you must demonstrate that you’re entering the United States to develop and direct the business. In other words, you are going to be active in running the business. This requirement is an integral part of the E-2 visa interview. The consulate officer will ask questions that will help determine whether you have the expertise to run the intended enterprise. This is one of the areas we help our clients by preparing them for the interview so they’d be able to convince the consular officer and acquire the visa without any delay.

Benefits of E-2 Visa

The E-2 visa is highly beneficial because it offers many advantages that many other US visas don’t have. Some of the benefits are:

1. Visa and Work Authorization for Spouse

With an E-2 visa, your spouse and children will become eligible to live in the United States with you. Your spouse will also be eligible to apply for work authorization or work permit, which will allow him or her to work anywhere in the United States. This can be an added advantage to the family income. Your children will also be able to school in the US to any level as long as you continue running the business and maintaining your status requirements.

2. Unlimited Number of Renewal

Another beauty of the EB-2 visa is that you can continuously renew it as long as you keep operating the business enterprise. With this, you can continue living in the United States for as long as you want, just as your spouse and children will keep working and schooling.

K-1 Visa- Petition for a Fiancé of a U.S. Citizen

If you have ever watched the program 90-day fiancé you may know that a K-1 visa is a non-immigrant (temporary) visa that permits the fiancée or fiancé of a U.S. citizen to enter the United States to get married. A K-1 visa is different from a marriage-based immigrant visa. The K-1 visa is an excellent option for a foreign national whose U.S. citizen fiancé(e) wishes to travel to the United States to get married.

K-1 Processing Time

After submitting the I-129F form, known as Petition for Alien Fiancé, it usually takes 6 to 9 months to obtain a K-1 visa. Several factors could contribute to the processing time, especially in terms of the preparedness and compliance of the couple seeking the visa. An ill-prepared I-129F application will undoubtedly increase the waiting time. Errors, omissions, and insufficient evidence can lead to significant delays or even denials.

K-1 Visa Documents Checklist

The following forms and documents must be submitted for the interview:

  • Form DS-160, online visa application for non-immigrants
  • A valid passport to travel to the United States and valid for at least six months.
  • Birth certificate
  • Certificate of divorce or death of any previous spouse, if any.
  • Police certificates from the current country of residence and from all countries where you have lived for more than six months or since the age of 16
  • Medical examination result
  • Proof of financial support may be required.
  • Proof of your relationship with your U.S citizen fiancé(e)

NOTE: It is worth noting that visa application is treated on a case-by-case basis. As such, some case-specific evidence may be required. It is important that you strictly follow the guidelines given by the embassy in charge of your visa application.

 

The Step-By-Step Process for K-1 Visa

1. USCIS Filling

The U.S. citizen sponsor submits the K-1 visa application to the USCIS by submitting the entire I-129F petition and payment to the U.S. Department of Homeland Security.

2. Notice of Action 1 (NOA1)

Two to three weeks after sending your order, you will receive a notice of action, indicating that USCIS has received your order.

3. Notice of Action 2 (NOA2)

Usually, 5 to 7 months after filing the visa, you will receive another notice of action, indicating that USCIS has approved, refused, or requested additional evidence for your application. If approved, do nothing at this stage. In the event that your K-1 visa application is denied or more evidence is required, it is best to contact an immigration lawyer on the best possible way to address the issue.

4. NVC Process

The immigration office that processed your application will then refer your case to the State Department National Visa Center (NVC). This will occur within two weeks of your approval. A security check would be run on the foreign fiancé(e) seeking to enter the U.S.

5. NVC to Embassy

If the check comes back clean, the approved K-1 visa application will be sent to the Consular Affairs Office. The Consular Office will send the file to the U.S. Embassy in your fiancé(e) country via DHL.

6. Letter from the Embassy

After receiving the visa application, the U.S. Embassy (usually in the country of origin) sends the fiancé(e) a letter with instructions to schedule their immigration medical examination and visa interview. The U.S. Embassy will also request that the foreign fiancé(e) submit some documents within a specific timeframe.

7. Medical Examination

The foreign fiancé(e) will undergo a medical examination at a designated center recommended by the embassy. After the examination, a parcel containing the result of the medical examination will be sent to the embassy.

8. K-1 Visa Interview at the Embassy

The foreign fiancé(e) must be present for an interview at the U.S. embassy on the scheduled date and time. The U.S. citizen is not required to participate in the interview. If the interview goes successfully, the visa application would be approved. The actual K-1 visa fiancé(e) visa will be issued on the foreign fiancé’s (e)’s passport.

9. Travel to the United States of America

The foreign fiancé(e) has six months to use the visa to enter the United States. Keep in mind that a visa is only a travel document – it doesn’t guarantee entry into the United States. The foreign fiancé(e) will have to seek entry permission at the border or airport through the officials of the U.S. Customs and Border Protection (CBP).

10. Wedding

The couple must get married within 90 days of the foreign fiancé’s (e)’s entry into the United States. The 90-day clock starts when you enter the United States, which is usually stamped on your passport.

O-1 Visa Processing

The O-1 visa for Individuals with Extraordinary Ability or Achievement is a nonimmigrant work visa in the United States that offers more advantages and flexibilities than other temporary work visas lack. With the complexity of the requirements, working with an immigration attorney who is highly experienced in processing an O-1 visa will improve the likelihood of success.

Types of O-1 Visa

There are two types of O-1 visas. They are O1-A and O-1B.

O-1A: The O-1A visa is for foreign nationals with an extraordinary ability in various fields such as education, business, sciences, or athletics.

O-1B: The O-1B visa is for foreign nationals with extraordinary ability in arts or exceptional achievements in the motion picture or television industry.

Requirements for O-1 Visa

The primary requirement for qualifying for the O-1 visa is for an applicant to demonstrate “extraordinary ability” in their fields. According to USCIS, they must have recorded some level of achievements that is recognized nationally or internationally.

For the O-1A, extraordinary ability indicates that you are one of the small percentages who have gotten to the very top of the field.

For the O-1B, extraordinary ability refers to distinction or a high level of achievement in your own chosen field of art. In order words, you must demonstrate that you possess a degree of recognition and skill above what is ordinarily encountered in the industry.

Evidentiary Criteria for O-1 Visa

To demonstrate they possess “extraordinary ability,” applicants are expected to demonstrate relevant evidentiary criteria. You are expected to have at least 3 of the following evidentiary criteria.

  • A national or international award
  • Published material in a significant or professional media about your work and achievements
  • Have membership of a reputable association in your field
  • Evidence showing that you have participated in judging other people’s work in the field
  • Proof that you have made significant contributions in your area, such as scientific, scholarly, business-related contributions of major significance.
  • Evidence of authorship of scholarly work
  • Evidence of employment in an essential or critical capacity for a reputable organization
  • Evidence that you have commanded a high salary compared to what others earn in your field.

O-1 Visa Supporting Documents

Each category of the O-1 visa has its long list of supporting evidence, including copies of written contracts between beneficiary and petitioner, an itinerary of activities to be carried out, and starting and ending dates of those activities. Your employer will need to submit these along with the O-1 visa petition filed on your behalf.

O-1 Visa Process

Just like other temporary work visas, you will need an employer or agent to file the petition on your behalf. Your ability to use either an employer or an agent will depend on the nature of work you are coming to do in the US with the visa. In any case, however, the following gives a summary of the O-1 visa application process.

  • The employer or agent files Form I-129, Petition for Nonimmigrant Worker, with USCIS.
  • After Form I-129 is approved, you and the petitioner would be notified. Then you can commence the visa application process at a US embassy near you if you are outside the US.
  • If you are in the US and changing from another nonimmigrant status to O-1, you would only wait for the Approval Notice from USCIS. Once the I-129 petition is approved, your status will change to O-1.