For Those Who Want to Immigrate to the United States

• If your aim is to move to the United States, to live here, work here, make this place your home, you’re an Immigrant in the making.
• You want a Green Card (so-called).
• How you accomplish your objective depends upon your own peculiar circumstances.
• Thus the various categories of Immigrant Visas.

Immigrants come to the United States legally via the following routes:

  1. As Fiancée or Fiancé to a United States Citizen;
  2. As an Immediate Relative to a United States Citizen;
  3. As Employee of a US business;
  4. As an Investor.

We’ll cover the first couple of these in detail here.

K-1: The Fiancée or Fiancé Visa

It is what it is: A visa available to persons (from elsewhere) engaged to be married to United States citizens. And while, legally speaking, the K-1 is a Non-Immigrant Visa as opposed to an Immigrant Visa (see INA § 101(a)(15)(K)), to us it makes sense to treat the subject here as the K-1 is clearly a path to permanent residency. It is Not available to persons (from elsewhere) engaged to be married to Legal Permanent Residents (Green Card holders) of the US.

USCIS, of course, provides the downloadable Petition, the I-129F, you’ll need to complete in order to get this visa. Detailed Instructions are also on offer: USCIS!
What follows is our own rendering of the applicable law and regulations.

The K-1 Visa Requirements

First: Again, the Petitioner must be a United States citizen.

Here the “Petitioner” is the one who completes the I-129F and files it, along with all the requisite evidence, on behalf of a Fiancée or Fiancé, the “Beneficiary.”Second: Both parties to the marriage-to-be must be free to marry.

This means that, in the first instance, both US Citizen and Fiancé(e) have actually to be old enough to get married. It also means that neither party can be burdened legally by any previous marriage. Annulments, divorces, have to have been finalized. Or the death of a prior spouse must be documented.

Third: But for a couple exceptions, US Citizen and Fiancé(e) must actually have met, In Person, at least once within the two year period preceding the filing of the I-129F.

The exceptions?

They may be found at 8 C.F.R. § 214.2(k)(2) where it states that the Personal Meeting requirement “may” be waived (in other words, it’s waiver is a matter of discretion for the service) if compliance with the requirement a) would result in extreme hardship to the Petitioner (not the Fiancé(e)-Beneficiary); or b) compliance would violate strict and long-standing customs of the Beneficiary’s culture.

And here’s the actual text: “As a matter of discretion, the director may exempt the petitioner from this requirement only if it is established that compliance would result in extreme hardship to the petitioner or that compliance would violate strict and long-established customs of the K-1 beneficiary’s foreign culture or social practice, as where marriages are traditionally arranged by the parents of the contracting parties and the prospective bride and groom are prohibited from meeting subsequent to the arrangement and prior to the wedding day. In addition to establishing that the required meeting would be a violation of custom or practice, the petitioner must also establish that any and all other aspects of the traditional arrangements have been or will be met in accordance with the custom or practice.”

And Finally: US Citizen and Fiancé(e) have to intend to marry within 90 Days of Fiancé(e)’s admission to the US.

That intention has to be proven to be bona fide. And a subsequent failure to marry results in a violation of status that renders the K-1 Beneficiary removable.

These are the positive requirements of the K-1 Visa but it should be understood that, here as with other categories, one might meet the positive requirements and yet still be unable to apply. The reason? Because as a sort of precondition, one must be “otherwise admissible.”

This is a subject we cover thoroughly elsewhere, but for present purposes: If you have a criminal conviction, if you have ever over-stayed in the US, if you have ever lied on a prior petition or application, you May Not Be Eligible to apply for a K or any other US visa!

Waiver(s) may be available to help in overcoming ineligibility, and we cover these two, but anyone up against such concerns should absolutely seek legal counsel.

The chief list of Grounds of Ineligibility is found at INA § 212(a)

What About My Fiancé(e)’s Kids?

If your Fiancé(e) has children, and those children are both Under 21 Years of age and Unmarried, they may apply as derivative beneficiaries for K-2 Visas.

Initially, having Fiancé(e)’s kids considered is a matter only of having the US Citizen Petitioner list them on the I-129F. Once that is approved (and it bears pointing out that an approved 129F is Not itself a Visa, rather it confers upon its Beneficiary only the eligibility to apply for a Visa), foreign Fiancé(e) and family must apply abroad for their visas, and each must make a separate application.

More on the process of obtaining the actual visa below, after we outline the process of filing the Petition for Alien Fiancé(e) with USCIS.

How to Apply for a K-1

It’s a two-step process which begins with a US Citizen filing an 129-F with USCIS.

Regarding this initial Step One: Complete instructions on how to go about it, what is required in the way of evidentiary documentation, the cost of filing, where to file, etc., are available at the USCIS site (go to “Forms,” scroll to I-129F) and it seems unnecessary to reproduce them here. (At least at this point.) Instead, we’ll address specific issues concerning the preparation and filing of this and other CIS Petitions or Applications, perhaps in FAQ style, as readers bring them to us.

Step Two takes place at the United States embassy or consulate in foreign Fiancée or Fiancé’s home country.

Once the Petition is approved, it’s forwarded to the National Visa Center (NVC), which is charged with collecting visa application forms, Affidavit of Support forms, and fee payments for US Embassies and US Consulates. The petitioner must undertake the work of completing the file with the NVC. When finally completed, the US Citizen’s Fiancée or Fiancé abroad is notified that a K-1 Visa has become available and he or she is, apparently, eligible to receive it. Thus for Beneficiary, the process of applying for the actual Visa begins.

With respect to this the needed forms, here the DS-160, Non-Immigrant Visa Application, and official government instructions are also available online (DS-160), but a few comments regarding this effort seem warranted. In particular, we want to explain why Fiancé(e), even with an approved I-129F in hand, is nonetheless at this point still only “apparently eligible” for a visa.

It comes to this: At both steps along the way, the lives of US Citizen and foreign Fiancé(e) are scrutinized. Are they or are they not eligible? Do they meet the legal requirements for this sort of visa? Is their relationship bona fide? Is their evidence adequate? Are their documents authentic? Is Fiancé(e) “otherwise” eligible?

In truth, it’s almost a Given that at some point in the process both US Citizen and Fiancé(e) alike will wonder at the system’s awful repetitiveness.

Thus, at the consul, much of the evidence that had already been provided to USCIS will be required again. And, additionally, the Fiancé(e) will have to obtain a medical examination from an approved provider (for there are health-related grounds of inadmissibility), a certificate from local police (as there are criminal grounds of inadmissibility), must pass a NCIC or National Crime Information Center background check, and in all likely hood will have to provide either an I-134, Affidavit of Support, prepared by US Citizen, or provide proof that he or she has resources-enough to take care of finances for the duration of the visa’s validity (as there are so-called public charge grounds of inadmissibility as well).

All of which supports the following conclusion: The better informed, the better prepared. Sort out the steps, get your documents in order, Before you begin jumping through the many hoops.

The Family Visas

A professed aim of US immigration law is “family unity.” Thus US Citizens (USCs) and Legal Permanent Residents of the US (LPRs) are afforded the lawful means to get qualifying relatives from abroad into the United States.

By design, of course, US law favors the unity of the USC’s family over that of the LPR. (And what nation today doesn’t so favor its own? Such, we all know, is our common state evolution.) But, that said, an LPR should be aware that the path to becoming a USC is neither unreasonably long nor especially hard. Meaning: That in certain cases an LRP can probably get a family member into the US sooner by first becoming a USC. (Also, if an LPR first petitions for a family member and then in the meantime become a USC, his or her petition can be administratively “upgraded.”)

We begin with the categories of “Family.”

Immediate Relatives

A US Citizen can seek a Green Card for Immediate Relatives including:

  1. A Spouse;
  2. Children (provided they are unmarried and under 21 years of age);
  3. Adoptive children; and
  4. Parents (if the USC is over 21 years of age upon petitioning).

The real meaning is given the intention of “family unity” in that the Immediate Relatives of USCs don’t have to wait in any queue. Instead, there are no limits to the number of visas available to them (this isn’t the Lottery). And therefore the wait time between petition and Green Card may be said to be a function purely of a) the Quality of Effort put into preparing the petition, and b) the Pace of Work at USCIS.

Beyond this select group, however, available visas are limited in number. Prospective immigrants are ranked into Preference categories. Wait time for a visa becomes a different matter altogether as each hopeful is given a Priority Date which corresponds to the date of the proper filing of a petition made in his name, and he must wait until that date becomes Current.

The Family Preference Immigrant Visa categories

  1. First Preference (F1): The unmarried, over 21 years of age, children of USCs, and their children’s children, if any.
  2. Second Preference (F2): The spouses and children of LPRs. (With the bulk of available visas going to spouses and minor children, the remainder to unmarried children over 21 years of age.)
  3. Third Preference (F3): The married (with or without kids) children of USCs.
  4. Fourth Preference (F4): The siblings (and their families, if any) of USCs who are at least 21 years of age.

You will have noted, perhaps, that the family US immigration law if chiefly interested in unifying is the nuclear family. Grandparents, aunts, uncles, cousins, in-laws are not able to make any petitions.

And before we get into the mechanics of applying for a family visa, we want to point out that under US law “Spouse” is today defined clearly to include the husbands and wives of gay and lesbian USCs and LPRs; “Child” includes the children of gay and lesbian married couples.

How to Apply for a Family-Based Immigrant Visa

The process begins with either a USC or an LPR filing a petition with USCIS, in this case, the I-130 (called the “Petition for Alien Relative”), on behalf of a qualifying relative.

Regarding this initial Step One: Current forms and complete instructions on how to go about filing, what is required in the way of evidentiary documentation, the cost of filing, where to file, etc., are available at the USCIS site (go to “Forms,” scroll to I-130) and it seems unnecessary to reproduce them here. (At least at this point.) Instead, we’ll address specific issues concerning the preparation and filing of this and other CIS Petitions or Applications, perhaps in FAQ style, as readers bring them to us.

As for Step Two: Once a petition is approved by USCIS, its Beneficiary becomes eligible to apply for an immigrant visa and, ultimately, to obtain the status of Legal Permanent Resident of the US, and to enjoy the rights to live and work here.

Two questions help to clarify the process: First, When can Beneficiary apply? And, second: Where in the world is the Beneficiary?

The first of these questions obviously returns us to the categories of Family addressed above. And, in light of those categories, the answer is: An Immediate Relative with an approved I-130 in hand can apply Immediately! Again, visas for Immediate Relatives are unlimited, always available. But the Family Preference Beneficiary will have to wait for his/her number to come up. How long? Impossible to say, but case by case estimates can be made given a Priority Date and the State Department’s Visa Bulletin.

As for the second question: An answer to it determines where and how Beneficiary will proceed. If the Beneficiary is abroad, it’s Consular Processing. If Beneficiary is already in the US, it’s Adjustment of Status.

We’ll take these in turn.

Consular Processing

Much of what we wrote above regarding the consular processing of Fiancé(e) Visas applies here. In other words, it’s virtually the same drill, and the same level of scrutiny is given both sorts of applicants.

But rather than repeat what appears wrote elsewhere, we’ll try instead to simplify.

Once an I-130 is approved, it’s forwarded to the National Visa Center (NVC). The NVC engages with Petitioner to collect fees and forms, including an Affidavit of Support, on behalf of the US Consulate at which Beneficiary will obtain his or her visa. Here the actual application is the DS-260, Immigrant Visa Application, and this can be made out online: DS-260.

It’s now down to the Beneficiary-Applicant to prove:

First: Admissibility. Or, if Inadmissible, that a Waiver is available to overcome whatever ground of inadmissibility bars entry.

In connection with this concern, the Applicant will have to pass a physical given by an approved provider, maybe get some shots, supply a police certificate, supply records of any prior police contact or convictions and subsequent rehabilitation, supply military records, photos, and perhaps information and documentation of any prior run-ins with US immigration authorities. Also, if required (and it’s almost always required) Petitioner will have to do an Affidavit of Support, an enforceable agreement made with the US government to provide material support to an immigrant family member, thus to overcome the “Public Charge” ground of inadmissibility.

And Second: That the relationship between Petitioner and Beneficiary– in other words, the very thing behind the petition already scrutinized and approved by USCIS!– remains a qualified (and in the case of spouses bona fide) relationship. !
Here as well earlier comments on the apparent redundancy of the effort apply, but make no mistake: At each stage along the way, you’ll want to provide the best, most accurate, most current, and most complete of proofs, because at no point will you be subjected to less than professional bureaucratic scrutiny.

Finally, if a visa is available, it will be issued.

Adjustment of Status

Adjustment of Status is an option for those (from abroad) who are already in the US legally— which is to say: those who have entered as Nonimmigrants with a Proper Visa (or via the Visa Waiver Program) at an Actual Port of Entry where they were Inspected and Admitted— And who meet the requirements of an immigrant category.

An immigrant visa must also be available at the time of filing.

Common example: Man comes to the US as a student. At university, he meets and falls deeply in love with USC Woman. They marry. They want to live together in the States. Well, Man, at this point, is now in violation of the chief condition of his nonimmigrant visa. Why? Because he means to Stay, not to study and return home. So, what’s to be done? The Answer: Adjust Status. For he meets the main criterion: He entered legally, and as the husband of a USC he qualifies for an Immediate Relative visa.

Another common example, referring back to the Fiancé(e) visa: K-1 is a nonimmigrant category for the simple reason that, until actually married, Spouse-To-Be isn’t eligible for an immigrant visa. So Fiancé(e) must first enter lawfully as a nonimmigrant and then get married within the prescribed time in order to qualify to adjust his or her status to that of a Legal Permanent Resident.

Adjustment of Status is also available to those who satisfy the requirements of an Employment-based Immigrant visa category. Again, provided the initial entry was lawful— there’s no need to return home to go through Consular Processing.

So how is it done?

The I-485, Application for Adjustment of Status

First, answer this: Can you immigrate? Do you, in other words, meet the requirements of an immigrant category and are you otherwise eligible to obtain a visa?

If so, the proper Petition must be filed. And in most cases it must also be Approved— your Eligibility Established— before one can apply for Adjustment of Status.

The exception to this general rule? Concurrent Filing, something easily understood if we return to the above examples of the Student and the Fiancé(e).

Concurrent Filing, that is, of course, the simultaneous filing of an Immigrant Petition and an Adjustment Application, is possible for Student in the above example because of Student:

  1. is in the US;
  2. is married to a USC; and
  3. will, therefore, have an immigrant visa immediately available to him once his Petition’s approved.

So Student Does Not Have To Wait. He can prepare and file together— along with all the required fees, required documents and additional proofs— a fairly typical package consisting of the I-130, I-485, I-765, I-864, and often the I-131.

Fiancé(e), on the other hand, is at first a Nonimmigrant. Unmarried at the time of his entry into the US, he does not yet qualify for a family-based immigrant visa. He must first marry. Once that’s done, he can then file the I-485.

In short: If you’re not yet eligible for an immigrant visa and/or if you have to wait for an immigrant visa to become available, then you Cannot Concurrently File. Meantime, you’re either waiting for USCIS to adjudicate your petition, or you’re waiting for your number to come up. If it’s the latter, you’ll want to check the US Department of State’s Visa Bulletin from time to time. Visa Bulletin Your place in line is your Priority Number, the date you properly filed your underlying petition with USCIS.

Either way, once an I-485 is actually filed, the normal course of things goes as follows:

    1. You get a Receipt Notice in the mail, noting the date your Application was accepted as Properly Filed and assigning your file a unique case number. With this case number, you can track the progress of your file through the service.
    2. You’ll get a Notice to Appear for your biometrics appointment. You’ll have to go to an Application Support Center (ASC) at the appointed date and time and get your picture taken, your prints are taken, your signature was taken.
    3. The service may or may not send a Request for Evidence— it depends entirely upon the strength of the file you’ve prepared. If they do send an RFE, of course, you answer it. If not, you wait.
    4. Eventually, you get another Notice in the mail— this one for an Interview. You and your Petitioner (whoever filed one your behalf), perhaps even your kids, attend the interview at USCIS. (Though in some cases no interview is required.)
  • Finally… You get a Decision!

What you’re after is that “Welcome to the United States of America!” with which an approval notice begins.

Self-helpers can find the proper form and the official Instructions on how to file it at the USCIS site. USCIS. Click on “Forms.”