Obtaining Lawful Permanent Residence by Adjustment of Status

As an extension to our article on applying for a green card for your parents or other immediate relatives, this article discusses the ways to obtain lawful permanent residence through a family based petition.

The two alternate ways in a family based petition to obtain lawful permanent resident status are: (i) consular processing which usually takes place in the intending immigrant’s country of residence and (ii) adjustment of status which is processed by the United States Citizenship and Immigration Services (USCIS) in the United States.

Adjustment of status essentially is a provision in the immigration law that allows certain persons to obtain a green-card or a lawful permanent status while being in the United States and without having to go abroad to the consular office in their home country to apply for an immigrant visa.

Adjustment of status applications must be filed when the applicant is in the US and with the USCIS.  Generally, a foreign national applying for a green card as an immediate relative or through a family based preference categories qualifies for an adjustment of status process.  A major advantage for immediate relatives is that an adjustment of status can be filed concurrently with the petition for a green card so that the immediate relative(s) are able to adjust as soon as their green card petitions are approved.

One can apply for an adjustment of status so long as:
• S/he entered the United States legally on a valid visa and were inspected and admitted or paroled.
• Never worked in the United States without valid work authorization. This means never having worked illegally.
• Was in a lawful non-immigrant status at all times when in the United States (there are certain exceptions to this requirement) . This means that the applicant has not overstayed the period of time stamped on his or her I-94.
• Were not a non-immigrant admitted without a visa under the visa waiver program (with certain exceptions).
• Were not admitted on a K visa – unless adjusting based on marriage (must occur within 90 days of entering the United States) to the US citizen spouse who filed the non-immigrant visa petition.
• S/he is not in removal proceedings.

Our office generally recommends adjustment of status where possible as opposed to consular processing since:
• The applicant does not have to return to his/her home country.
• Typically time required for obtaining a green-card is shorter through the adjustment of status route.
• Applicant is eligible to obtain employment authorization.
• Applicant has access to administrative and judicial appeal if his/her application is denied.

USCIS Announces Delay in Delivery of Permanent Resident Cards

United States Citizenship and Immigration Services (USCIS) announced that applicants may experience up to an eight week delay in the delivery of their permanent resident card while they are in the process of upgrading their card production equipment.

USCIS Field Offices will be issuing temporary evidence of permanent residence in the form of an I-551 stamp to applicants approved for permanent residence at the time of their inteview.  USCIS has recommended taking your passport to your appointment. If you do not have a passport, you should bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence.

To Naturalize or Not to Naturalize?

This article provides basic information about the Naturalization process. Whether to naturalize or not is an intensely personal one with many important considerations. For many naturalization is an emotional decision — for some the summit of a successful immigration process and for some the end of the last formal bond with their country of origin.  There are also many practical considerations.  Naturalization may limit ability to own property in their home land and yet others may risk deportation from the United States as result of a naturalization application. The decision, therefore, to acquire naturalization by choice requires careful analysis and consideration and you may want to discuss naturalization with an experienced attorney who can help you decide if naturalization is right for you, and, if necessary, successfully help you through the process.

What is Naturalization?

Naturalization is a process which a lawful permanent resident (a “green card holder”) in the United States is granted US Citizenship and this process culminates into adopting a new homeland and renunciation of your original citizenship.

Who can naturalize?

A person who has become a lawful permanent resident (a “green card” holder) in the United States, and is over 18 years of age, seeking to become a United States citizen can naturalize.  The process is started by filing form N-400.

Whether to Naturalize?

First, assess your own circumstances, and consider whether becoming a US Citizen makes sense and whether it will provide you advantages.  Common privileges include visa-free travel to many countries, including Canada, minor children deriving US Citizenship through you if you naturalize, being able to vote for government officials, right to sit on the jury, rights to sponsor relatives for permanent residence, the ability to apply for federal jobs, and the entitlement to full protection of the US laws. The potential disadvantages are loss of other citizenship(s), and restrictions regarding ownership of property in one’s home country,

Second, research your home country’s citizenship laws to find out whether dual citizenship is allowed or whether it will cause you to lose your current nationality. For instance, India does not allow dual citizenship and you will have to have your Indian passport cancelled after you acquire US citizenship.  You may, however, choose to acquire the  Overseas Citizenship of India (OCI) card or the Persons of Indian Origin (PIO) card that allows certain privileges, including visa-free travel to India, and exemption from registration with local police authority, to name a few.

Basic Requirements for Naturalization:

a. Residence requirement:

In order to apply for naturalization, you normally must have resided in the United States as a legal permanent resident for five year s and have been under the jurisdiction of the USCIS director or state where you file the petition for at least 3 months.  You can apply within 3 years for naturalization if your spouse has been a United States citizen for the last three years, and you lived with your spouse during that time.   Naturalization applications can be sent in up to 90 days before the three or five year mark is reached.  The two primary residence requirements can be very complicated depending on evaluation of your residence in the naturalization context.

b. Good moral character:

To qualify for naturalization, all applicants must demonstrate their good moral character during the three or five year period of residence required for your application. Some of the bars to good moral character, include, criminal convictions, trafficking in controlled substances, false testimony to USCIS, failure to pay child support, failure to pay income tax, fraudulent use of public benefits, etc.

c. Speaking, Reading and Writing English:

Applicants must speak, read, and write English.  Typically during naturalization interviews, an applicant is required to understand the questions asked by USCIS examiner and converse with the examiner, as well as, be able to write out a sentence and read a paragraph.  There are certain exceptions for applicants over fifty years of age or for those who cannot comply due to a physical, developmental, or mental disability.

d. US History and Government Test:

All applicants must demonstrate knowledge of the fundamentals of United States  history and government. The recently revised test places an emphasis on the fundamental concepts of American democracy and the rights and responsibilities of citizenship. For a list of 100 test questions see: http://tinyurl.com/57sarh. If an applicant does not pass at the initial interview, the officer will schedule a second interview within 90 days.

Reproduced from the Indian Society of Worcester’s newsletter where the article written by our attorney , Hanishi T. Ali, was oringally published: http://www.iswonline.org/eSandesh/CommunityOrgs.htm

Study Reveals that Highly-Skilled Foreign Workers have a Positive Impact to the US Economy

A study on “The Budgetary Effects of Highly-Skilled Immigration Reform” released this month by the Technology Policy Institute, based in Washington D.C., finds that admitting highly skilled workers from foreign countries has a positive economic impact to the US economy.

In particular, the paper discusses that the foreign highly-skilled workers contribute significantly towards the federal budget, as they earn more and pay more taxes and are unlikely to receive any federal benefits, such as Medicare, Social Security, Medicaid, or other health or income-related benefits.  Highly skilled workers include those particularly in STEM fields (science, technology, engineering, and mathematics).

The paper finds:

• In the absence of green card and H-1B constraints, roughly 182,000 foreign graduates of U.S. colleges and universities in STEM fields would likely have remained in the United States over the period 2003-2007. They would have earned roughly $13.6 billion in 2008, raised the GDP by that amount, and would have contributed $2.7 to $3.6 billion to the federal treasury.

• In the absence of green card constraints, approximately 300,000 H-1B visa-holders whose temporary work authorizations expired during 2003-2007 would likely have been in the United States labor force in 2008. These workers would have earned roughly $23 billion in 2008, raised the GDP by that amount, and would have contributed $4.5 to $6.2 billion to the federal treasury.

• Similar results are obtained when analyzing legislation considered by Congress during the last few years. For example, under reasonable assumptions, the relaxation of green card constraints proposed in the Comprehensive Immigration Reform Act of 2006 could have increased labor earnings and GDP by approximately $34 billion in the tenth year following enactment and had a net positive effect on the budget of $34 to $47 billion over ten years.

• Relaxation of H-1B caps under the Comprehensive Immigration Reform Act of 2007 could have increased labor earnings and GDP by $60 billion in the tenth year following enactment and improved the federal budget’s bottom line by $64 to $86 billion over ten years.

• The flow of highly skilled immigrants to the United States increases entrepreneurship, economic growth, and productivity.

Green Card Holders Now May be Required to Provide Fingerprints or Other Biometrics

The new rule that came into effect on January 18, 2009, requires that nearly all foreign citizens provide biometrics (e.g., finger scans and photographs).   The categories of foreign citizens include:

·         US lawful permanent residents (LPRs), that is, “green-card holders”
·         Foreign citizens seeking admission on immigrant visas (this includes all family-based immigration and EB-1 to EB-5 categories)
·         Refugees and Asylees
·         Foreign citizens paroled into the United States
·         Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility

For more detailed information – see, our attorney, Hanishi Ali’s  article featured in New England Ethinc News:

http://www.ethnicnewz.org/en/green-card-holders-not-just-tourists-now-may-be-required-provide-fingerprints-or-other-biometrics