Green Card

Application process for family-sponsored visas

Green card holders and families

Green card holders married to non-U.S. citizens are able to legally bring their spouses and minor children to join them in the USA, but only after an extensive multi-year delay, during which time the family is separated. The foreign spouse of a green card holder must wait for approval of an 'immigrant visa' from the State Department before entering the United States.

Due to numerical limitation on the number of these visas, the current wait time for approval is four to five years for all non-retrogressed countries (including Western Europe), and many more for the retrogressed countries. In the interim, the spouse cannot be legally present in the United States (let alone work), unless he/she secures a visa for himself/herself using some other means. However, securing such a visa is usually difficult (and nearly-impossible at US embassies in some countries). This is because the spouse has to overcome presumed immigrant intent in order to qualify for a non-immigrant (or tourist) visa, a position at odds with her or his marriage to a US permanent resident.

Due to the long wait and the immigration intent issues, many green card holder opt to wait to become US citizens (usually 5 years), and only then sponsor their spouses and children (the process is much faster for US Citizens). This, however, imposes a family separation of several years, unique in the immigration laws of industrialized nations.

This puts US green card holders in a uniquely disadvantaged situation:

• visitors and non-immigrants coming to the USA on temporary visas for work, business, or study (including H1, L1, B, J1, and F1 visas) can sponsor their dependent spouses to live with them (but usually not work) in the US;
• U.S. citizens can sponsor their spouses to come to the USA in non-immigrant status; the spouse can then convert to an immigrant status under the Legal Immigration and Family Equity Act of 2000 (the "LIFE Act"). This process is fast (6–12 months) and, unlike with green card holders, the spouse can be present in the US during the process.

The issue of US green card holders separated from their families for years is not a new problem. A mechanism to unite families of LPRs was created by the LIFE Act by the introduction of a 'V visa,' signed into law by President Clinton. It effectively expired and is no longer available. Bills HR1823 and HR4448 were proposed in the 2005–2007 U.S. Congress, but did not pass, and were as such cleared from the books at the end of 2007 Congress session. A similar bill S1085 has been proposed in the US Senate in May 2009, but has since made only little progress.

These proposals for reviving the V visa are based on something that has little controversy—family unity. However, passing such a bill into law is not a small matter, mostly because it is often perceived as a back-door to increasing immigration numbers from heavily retrogressed countries such as China, India, the Philippines and Mexico.

Application process for employment-based visa

Many immigrants opt for this route, which requires an employer to "sponsor" (i.e. to petition before USCIS) the immigrant (known as the alien beneficiary) through a presumed future job. The three-step process outlined above is described here in more detail for employment-based immigration applications. After the process is complete, the alien is expected to take the certified job offered by the employer to substantiate his or her immigrant status, since the application ultimately rests on the alien's employment with that company in that particular position.

Immigrant Petition

The first step includes the pre-requisite labor certification upon which the actual petition will reside.

• Labor Certification – the employer must legally prove that it has a need to hire an alien for a specific position and that there is no minimally qualified U.S. citizen or LPR available to fill that position, hence the reason for hiring the alien. Some of the requirements to prove this situation include: proof of advertising for the specific position; skill requirements particular to the job; verification of the prevailing wage for a position; and the employer's ability to pay. This is currently done through an electronic system known as PERM. The date when the labor certification application is filed becomes the applicant's priority date. In some cases, for highly skilled foreign nationals (EB1 and EB2 National Interest Waiver, e.g. researchers, athletes, artists or business executives) and "Schedule A" labor (nurses and physical therapists), this step is waived. This step is processed by the United States Department of Labor (DOL). The labor certification is valid for 6 months from the time it is approved.
• Immigrant Petition – the employer applies on the alien's behalf to obtain a visa number. The application is form I-140, Immigrant Petition for Alien Worker, and it is processed by the USCIS. There are several EB (employment-based) immigrant categories under which the alien may apply, with progressively stricter requirements, but often shorter waiting times. Many of the applications are processed under the EB3 category. Currently, this process takes up to 6 months. Many of the EB categories allow expedited processing of this stage, known as "premium processing".

Immigrant Visa Availability

When the immigrant petition is approved by the USCIS, the petition is forwarded to the NVC for visa allocation. Currently this step centers around the priority date concept.

Priority date – the visa becomes available when the applicant's priority date is earlier than the cutoff date announced on the DOS's Visa Bulletin or when the immigrant visa category the applicant is assigned to is announced as "current". A "current" designation indicates that visa numbers are available to all applicants in the corresponding immigrant category. Petitions with priority dates earlier than the cutoff date are expected to have visas available, therefore those applicants are eligible for final adjudication. When the NVC determines that a visa number could be available for a particular immigrant petition, a visa is tentatively allocated to the applicant. The NVC will send a letter stating that the applicant may be eligible for adjustment of status, and requiring the applicant to choose either to adjust status with the USCIS directly, or apply at the U.S. consulate abroad. This waiting process determines when the applicant can expect the immigration case to be adjudicated. Due to quotas imposed on EB visa categories, there are more approved immigrant petitions than visas available under INA. High demand for visas has created a backlog of approved but unadjudicated cases. In addition, due to processing inefficiencies throughout DOS and USCIS systems, not all visas available under the quota system in a given year were allocated to applicants by the DOS. Since there is no quota carry-over to the next fiscal year, for several years visa quotas have not been fully used, thus adding to the visa backlog.

Immigrant Visa Adjudication.

When the NVC determines that an immigrant visa is available, the case can be adjudicated. If the alien is already in the USA, that alien has a choice to finalize the green card process via adjustment of status in the USA, or via consular processing abroad. If the alien is outside of the USA he/she can only apply for an immigrant visa at the U.S. consulate. The USCIS does not allow an alien to pursue consular processing and AOS simultaneously. Prior to filing the form I-485 (Adjustment of Status) it is required that the applicant have a medical examination performed by a USCIS-approved civil surgeon. The examination includes a blood test and specific immunizations, unless the applicant provides proof that the required immunizations were already done elsewhere. The civil surgeon hands the applicant a sealed envelope containing a completed form I-693, which must be included unopened with the I-485 application. (The cited reference also states that the February 25, 2010 edition of the Form I-693 reflects that an individual should no longer be tested for HIV infection.)

• Adjustment of Status (AOS) – after the alien has a labor certification and has been provisionally allocated a visa number, the final step is to change his or her status to permanent residency. Adjustment of status is submitted to USCIS via form I-485, Application to Register Permanent Residence or Adjust Status. If an immigrant visa number is available, the USCIS will allow "concurrent filing": it will accept forms I-140 and I-485 submitted in the same package or will accept form I-485 even before the approval of the I-140.
• Consular Processing – this is an alternative to AOS, but still requires the immigrant visa petition to be completed. In the past (pre-2005), this process was somewhat faster than applying for AOS, so was sometimes used to circumvent long backlogs (of over two years in some cases). However, due to recent efficiency improvements by the USCIS, it is not clear whether applying via consular processing is faster than the regular AOS process. Consular processing is also thought to be riskier since there is no or very little recourse for appeal if the officer denies the application.

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