Seguritan US Immigration Articles

Prepare for H-1B Filing Now

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

Immigrant Visa Waiting List is Long

123,524 applicants were added last fiscal year to the immigrant visa waiting list in the various preference categories subject to numerical limits.

A report from the National Visa Center (NVC) and submitted to the Department of State shows that as of November 1, 2015, there were 4,455,274 family-based applicants, an increase of 123,524 or 2.9% from last year. The number of employment-based visa applicants was 100,747 up by 9,837 applicants from last year.

The Philippines placed second over-all, with 417,511 registrants. The other countries that round up the top five in terms of number of registrants are: Mexico- 1,344,429; India- 344,208; Vietnam- 282,375; and China- 260,265.

These numbers include not only the principal applicants or petition beneficiaries but also their spouses and children entitled to derivative status. However, they do not include spouses, unmarried children under 21 years of age, and parents of US citizens who are not subject to the numerical limitations.

The figures do not also include the significant number of applicants for adjustment of status. Also excluded are those who failed to respond within one year to the visa application instruction letter sent by the National Visa Center notifying them of visa availability. In such case, the petition is considered inactive and not counted in the waiting list totals.

For fiscal year 2016, or from October 1, 2016 through September 30, 2017, the total number of visas to be issued is 226,000 in family-based preferences and 140,000 for employment-based preferences. The total per-country limit will be 25, 620, which translates to decades-long wait times for applicants in certain categories from countries such as Mexico, India, Vietnam, China and the Philippines.

The numbers of registrants for the family-based preferences (F) are: F1 (adult unmarried sons and daughters of US citizens)- 322,786; F2A (spouses and children of permanent residents)- 276,022; F2B (adult sons and daughters of permanent residents)- 480755; F3 (married sons and daughters of US citizens)- 825,991; and F4 (brothers and sisters of US citizens)- 2,549,718.

The Philippines has the second highest number of family preference registrants with 388,214. The per-country limit on the annual number of family preference visas for FY 2016 is 15,280.

Mexico ranked first in all family-based preferences. The Philippines ranked second in F2B and F3 categories; fourth in the F2A category, and sixth in the F4 category. More cases may be added to the F1 waiting list because of the automatic conversion pending 2B cases into F1 cases upon the naturalization of the petitioner, but this can be avoided by availing of the opt-out provision under the Child Support Protection Act. By opting to remain as an F2B case, a longer wait time under the F1 category is avoided.

For employment-based preferences (EB), the breakdown of registrants is as follows: EB1 workers with extraordinary ability, outstanding professors and researchers, and multinational managers and executives)- 3,474; EB2 (advanced degree professionals and aliens of exceptional ability)- 11,440; EB3 (skilled workers and professionals)- 61,584; EB3 (other workers)- 6,208; EB4 (special immigrants and religious workers)- 379; and EB5 (employment creation)- 17,662.

The Philippines ranked first in the EB3 (skilled workers) category, fourth in the EB2 and third in the EB3 (other workers) categories. Registrants from the Philippines comprise 30% of the total for employment-based preferences at 29,297, of which 96% fall under the EB3 (skilled workers) category for the Philippines. For FY 2016, the per-country limit is only 9,825.

 

 

 

The Long Wait for Employment-Based Green Card

Many people know that the process of becoming a U.S. immigrant through employment begins with the filing of a labor certification application or an immigrant visa petition which assigns a “priority date” to the foreign national. This priority date determines the foreign national’s place in the line for an immigrant visa.

But many people also make the mistake of underestimating the length of time they must wait before a visa number becomes available to them. For example, if an EB3 preference petition is filed for a professional today, he might assume that, based on the latest visa bulletin which shows an August 1, 2007 cut-off date for the Philippines, his priority date will become current in about eight years.

This is not necessarily true. To understand how long one must wait before his/her priority date is reached, it is useful to have an idea of how immigrant visa numbers are allocated and what the actual demand under a visa category is.

The monthly cut-off date is determined by the Visa Office (VO) of the Department of State (DOS). The VO collects information from overseas consular posts as well as the USCIS with regard to immigrant visa requests. It calculates visa number usage and compares the demand with the allotment, separating it by foreign state chargeability and preference.

If the demand does not exceed the allotment, the category is current and no cut-off date is needed. Otherwise, the category is considered oversubscribed and DOS sets a cut-off date which is the priority date of the first applicant who will not receive a visa number.

Employment-based (EB) immigration operates on a preference system which distributes the limited number of immigrant visa numbers available each year into five general categories. These are: EB1 for priority workers; EB2 for advance degree processionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas.

The law sets a worldwide limit of 140,000 EB visas per fiscal year. The EB1, EB2 and EB3 categories each get 28.6% of the total or 40,040 visas per category. The EB4 and EB5 categories each get 7.1% or 9,940 visas.

However, there is also a per-country limitation in the number of visas available per EB category which is 7% of the total annual limit. This means that only 2,803 visas for EB1 through EB3 and about 700 visas for EB4 and EB5 may be initially allocated to any single nationality group per year. Quite obviously, the visa allocation system works to the disadvantage of populous countries such as India, China and the Philippines.

The complex visa allocation system also involves several mechanisms that reallocate unused visa numbers. Unused visa numbers in EB4 and EB5 “fall up” to EB1. Unused numbers “fall down” from EB1 to EB2 to EB3. If an oversubscribed country has a relatively small demand for family-based visas, the excess visa numbers “fall across” to the EB preferences, as long as the total number use is still within the 7% limit for the country. This also works the other way around, i.e. from employment based to family based. However, the Philippines does not benefit from this type of spillover because it is oversubscribed in both employment and family preferences.

EB-3 Cut-off Dates Advance in December

The December 2013 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date will advance by one year from October 1, 2010 in November to October 1, 2011. The Philippines third preference cut-off date will move by three weeks to January 8, 2007.

India’s employment-based second preference will retrogress from June 15, 2008 to November 15, 2004 while its third preference will move back from September 23, 2003 to September 1, 2003. This is the result of the dramatic increase in applicant’s demand for visa numbers in the past few months.

The employment-based second preference (EB-2) will remain current for all countries except China and India. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – November 15, 2006; F-2A – September 8, 2013; F-2B – May 1, 2006; F-3 – March 8, 2003 and F-4 – September 8, 2001.

The Philippines cut-off dates are: F-1 – July 1, 2001; F-2A – September 8, 2013; F-2B – March 22, 2003; F-3 – January 22, 1993 and F-4 – June 1, 1990.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Green Card for Aliens of Extraordinary Ability

Foreign nationals of extraordinary ability are eligible to become lawful permanent residents under the employment-based first preference category (EB-1). They do not need a job offer from a U.S. employer, which means that they can self-petition or file the immigrant petition themselves.

Under the EB-1 category there is also no labor certification requirement. Since there is currently no visa backlog, the foreign national as well as his spouse and children do not have to wait long after the approval of the petition before being able to immigrate or receive their green cards. If they are in the U.S., the I-140 petition and I-485 adjustment application may be concurrently filed.

The demand for a EB-1 visa is comparatively low because of the high standard under this category. This is especially true of individuals who want to qualify as aliens of extraordinary ability. Outstanding professors or researchers and certain multinational executives and managers are also eligible for EB-1 classification.

To be an alien of extraordinary ability, one must demonstrate sustained national or international acclaim and give extensive documentation of his achievements.

Sustained national or international acclaim is best evidenced through a one-time achievement of a major, internationally recognized award, such as the Nobel Prize, an Oscar Award or an Olympic medal. However, it can also be proven by submitting evidence falling under at least three out of the ten regulatory criteria.

These ten criteria are the following: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field that demand outstanding achievement of their members; (3) published material about the alien in profession or major trade publications or other media; (4) evidence that the alien has been asked to judge the work of others, either individually or in a panel; (5) evidence of original contributions of major significance to the field; (6) authorship of scholarly articles; (7) display of the alien’s work at artistic exhibitions or showcases; (8) evidence of performance in a leading or critical role for organizations that have a distinguished reputation; (9) evidence of high remuneration in relation to others in the field; and (10) evidence of commercial success in the performing arts.

The foreign national may submit other comparable evidence if these criteria do not readily apply to his field of expertise.

In adjudicating EB-1 petitions, USCIS officers will take a two-part approach. The adjudicator will first look at the evidence to count how many evidentiary prongs were met. If at least three of the criteria were met, the adjudicator will find that the self-petitioner or the beneficiary has established the minimum eligibility requirement to qualify as an alien of extraordinary ability and proceed to the next step.

The adjudicator will look at the evidence in totality and find out whether the foreign national meets the required level of expertise for the category. The evidence must show that he has the level of expertise of that small percentage of individuals who have risen to the very top of their field of endeavor, and that he has sustained national or international acclaim and his achievements have been recognized in his field of expertise.

Additionally, the foreign national must seek to continue working in the same field of endeavor and that his entry will substantially benefit prospectively the U.S.

Because of its very strict requirements, the EB-1category is certainly not for everyone. But for those who can meet demonstrate eligibility as aliens of extraordinary ability, it offers the one of the fastest routes to permanent residence.

Adjustment of Status Granted Despite Gap In Lawful Status

A foreign national with an approved employment-based immigrant petition whose priority date is current may apply for an immigrant visa through consular processing abroad or apply for adjustment of status if applicant is already in the U.S. Adjustment of status is the more preferred route because the applicant is eligible for work authorization and permission to travel while the application is pending.

To be eligible to adjust status, the applicant must meet the basic requirements, namely, physical presence in the U.S. at the time of filing, having lawfully entered the U.S. through inspection by a U.S. immigration officer or paroled into the U.S., and not being subject to any of the inadmissibility grounds.

Foreign nationals who have incurred “unlawful status” are generally not eligible to adjust status. However, certain employment-based adjustment applicants may still obtain approval of their I-485 adjustment of status applications despite gaps in lawful status. Under Section 245(k), they may adjust status if the total period of their unlawful status is not more than 180 days.

A recent case appealed to the Board of Immigration Appeals (BIA) involved Lorna Maynigo, a Filipino citizen, who entered the United States on June 24, 2001. She changed her status to H-1B which was valid until August 29, 2006. She timely filed a request for extension of her H-1B status on August 28, 2006.

The Citizenship and Immigration Services (CIS) denied Maynigo’s request for extension on March 7, 2007. She subsequently filed an application for adjustment of status on June 29, 2007 based on an approved I-140 employment-based visa petition. The priority date for the visa petition was current. The CIS denied her adjustment of status application and she was placed in removal proceedings before an immigration judge.

The immigration judge (IJ) disagreed with the CIS and found Maynigo to be eligible for adjustment of status under Section 245(k). The IJ clarified that under Section 245(k), an employment-based immigrant may adjust status if (1) the applicant is in the U.S. pursuant to a lawful admission and (2) after being admitted pursuant to a lawful admission, the applicant cannot have exceeded more than 180 days in the aggregate of any of these violations: (a) “failed to maintain continuously” a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of admission.

According to the CIS, Maynigo was “out of status” since the expiration of her H-1B on June 29, 2006. The IJ disagreed, saying that because Maynigo filed a timely application for extension of her H-1B status, she maintained lawful status under the terms of Section 245(k) while that extension application was pending. The IJ further stressed that the only period that Maynigo “failed to maintain” her status was the period between March 2007 when CIS denied the request for extension of her H-1B and June 2007, when she filed for adjustment of status. The period was approximately three-and-a-half months which was less than the 180 days allowed under Section 245(k).

The IJ also noted that if the court denies Maynigo’s adjustment application, she would be forced to apply for immigrant visa through consulate process. She would then be subject to the three or possibly ten-year bar for unlawful presence and would not qualify for waiver of that ground for inadmissibility.

The IJ found the consequences of a denial too harsh for an individual who has done everything in her power to maintain lawful status since coming to the U.S. and would unduly penalize her for the brief period she failed to maintain lawful status. For this reason, the IJ found that she deserved the court’s favorable exercise of discretion and granted her application for adjustment of status.

EB-2 Visa without a Master’s Degree

Professionals can qualify under the employment-based second preference (EB-2) category if they have a master’s degree or higher and if the position requires an advanced degree. This category is appropriate for workers in highly skilled occupations, such as physical therapists, doctors, lawyers, engineers and pharmacists.

An EB-2 classification is desirable primarily because there are no visa backlogs under this category, except for nationals of India and China. In contrast, under the third preference (EB-3) category under which most professionals and skilled workers fall, there are significant waiting times ranging from at least six years to over ten years.

The requirement to obtain labor certification from the Department of Labor (DOL) may also be waived if the EB-2 worker can show that the waiver is in the national interest of the United States. The exemption from labor certification through the national interest waiver (NIW) can further speed up the green card process by about a year.

Even without an advanced degree, however, a professional can qualify under EB-2 if the position offered requires a master’s degree or higher but the employer will accept a bachelor’s degree plus five years of progressively responsible experience, and if the professional possesses the requisite education and experience.

The employer, however, may not simply require a master’s degree or bachelor’s degree with 5 years experience just to make a position qualify under EB-2. For instance, it cannot require a master’s degree in business administration for an accountant position unless the higher educational requirement is related and necessary to the position.

The job requirements should not be greater than those assigned by the DOL in its Standard Occupational Classification system. Otherwise, the employer must explain that the higher requirements are justified by a “business necessity”.

Progressive experience is not defined in the statute or regulations but it entails an increase in the employee’s level of responsibility over time. Good indications of progressive experience include the addition of more complex job duties, payment of higher wages and promotion to different job titles.

The five years of experience generally means full-time work experience. There is no definite standard for full-time employment under the EB-2 category but it is believed that a 35-hour workweek meets the minimum standard for full-time employment.

The experience must also have been gained after graduation from the bachelor’s program. Any experience before the bachelor’s degree will not be counted towards the required five years.

Moreover, the experience and the educational degree must have come before the filing of the labor certification application. If a NIW is sought by the beneficiary, he must fulfill the requirements by the time that the I-140 petition is filed.

For positions that do require an advanced degree, the EB-2 category is an attractive alternative for professionals who have the necessary skills for the job but perhaps chose to forego graduate education to instead gain work experience.

Furthermore, given the rather nebulous progressive experience requirement, it is very important that the professional adequately document his experience and qualifications to help ensure that he meets the standard.

Ease Visa Rules to Avert Physician Shortage

More and more Americans are getting older and requiring more care. It is estimated that by year 2030, one in every five Americans will be at least 65 years old and by year 2020, four out of every ten patient visits will be by baby boomers. The U.S. population is also expected to grow by more than 50 million by year 2025.

In the midst of this growing and graying of the population, studies project a shortage of 125,000 doctors by year 2025. Meanwhile, almost half of the country’s physicians are at least 50 years of age. Since the education and training of a physician takes more than ten years, higher medical school enrolment will not be enough to ensure an adequate supply of doctors.

The U.S. has relied on international medical graduates (IMGs) to help meet its healthcare needs. At present, over a quarter of the nation’s physicians are IMGs who come from127 countries, most of whom were originally from India, the Philippines and Mexico.

To become a U.S. physician, an IMG faces a lengthy and complicated process that is fraught with uncertainty. Aside from having to pass the U.S. Medical Licensing Examinations and be certified by the Educational Commission for Foreign Medical Graduates, the IMG must complete a graduate medical education (GME) program in the U.S.

The IMG must be “matched” to his desired program, which could be very competitive depending on the field of medical specialty. Residency programs usually take anywhere from three to eight years. Furthermore, the IMG must obtain a license from the state medical board of his employing hospital. But before an IMG can join a residency program, unless he is a lawful permanent resident or a U.S. citizen he must be in a visa category that allows employment or training.

The immigration aspect of IMG recruitment carries with it a long history of restrictive regulations. Immigration policy was initially favorable to migration of IMG’s but things later changed and immigration rules were adopted that hampered the recruitment of many talented IMGs. Perhaps, herein lies the key to meeting the looming shortage of doctors.

For instance, the J-1 visa for exchange visitors, which is used widely used by IMGs to join residency programs, requires the IMG to depart the U.S. for two years upon the completion of his GME, or obtain a waiver of the requirement.

Compliance with the 2-year home residence rule is needed before the IMG can apply for permanent residence or change or adjust his status to another work-authorized non-immigrant status such as H-1B. The home residence requirement applies even if the IMG is eligible for an immigrant visa through marriage to a U.S. citizen.

The IMG can try to get a waiver from an interested federal government agency or a state health department or agency under a program which allows 30 waivers to be issued to IMGs annually. This is called the Conrad 30 program and it has come to be the source of 90% of waivers obtained by IMGs.

To be granted a waiver, the IMG generally would be required to work at an underserved geographic area and in a primary care specialty. Even then, given the limitation on the number of waivers under the Conrad 30 program, unless the number of waivers is increased or the home residence requirement is altogether eliminated, thousands of IMGs wishing to practice permanently after their GME will continue to face uncertainty and deal with the possibility of gong back to their home countries after years of valuable U.S. training.

The immigration reform bill now pending in the Senate contains several provisions that would end the current restrictions and make it easier for IMGs to become lawful permanent residents. Hopefully, they will be passed.

Senate Bill Would Clear Employment Visa Backlog

Seeking to attract highly-skilled and highly educated professionals and workers to the United States, the Senate immigration reform bill proposes a number of significant employment-based immigration reforms.

The bill would clear the huge employment-based visa backlog by exempting several groups of immigrants from the annual quota of 140,000, recapturing visa numbers that were authorized from 1992 to 2003 but were never used, eliminating the per country limit, and creating a merit-based category.

Among the groups that would be exempted are the foreign nationals of extraordinary ability, outstanding professors and researchers and multinational executives and managers who are under the current first preference category with an annual allocation of 40,000.

Also, exempted would be those with doctorate degrees in any field; those with U.S. advanced degrees in Science, Technology, Engineering and Mathematics (STEM) earned in the 5 years before filing an immigrant visa petition and have a job offer in a related field; and physicians who have completed their 2 year foreign residency requirement or who have received a J-1 waiver.

Spouses and children of employment-based applicants would not also be subject to the annual numerical limit. These derivative beneficiaries used up more than half of the annual quota in the past so that their noninclusion would free up about 80,000 visas yearly.

The yearly quota would be allocated under the bills as follows: 40% to advanced degree professionals and persons of exceptional ability, 40% to skilled workers, professionals and other workers, 10% to certain special immigrants, and 10% to immigrant investors.

The thousands of recaptured visa numbers that were never used due to bureaucratic and processing delays would be added in fiscal year 2015.

120,000 yearly would also be available during the first 4 years under the new merit-based program of the bill. Immigrant visas will be granted under this program to those who can demonstrate that they have the needed number of points from their education, employment, length of residence in the U.S. and other factors.

As for temporary visas, the H-1B cap would be raised from 65,000 to 110,000 per year and the cap may be adjusted each year up to 10% with a ceiling of 180,000. The advance degree cap exemption will be raised to 25,000 but would be limited to STEM graduates. More stringent rules will apply such as nondisplacement attestations, additional recruitment steps and higher fees for H-1B dependent employers.

For lower-skilled workers, a new nonimmigrant work visa would be created. The W-1 visa will be available to foreign workers who work for a registered employer and will be valid for 3 years with extensions in 3-year increments. 20,000 W-1 visas will be allocated in the first year and this would increase to 75,000 in the fourth year. Further increases would be determined by a market-based formula but the cap would not exceed 200,000.

W-2 and W-3 nonimmigrant visa categories would also be created to replace the current H-2A visa for agricultural workers.

Immigrant Visa Processing at a U.S. Consulate Abroad

Many foreign nationals become lawful permanent residents by applying for an immigrant visa at a U.S. consulate abroad. This pathway to a green card is called “consular processing” and it requires a personal interview before a consular officer before the applicant can obtain an immigrant visa.

Consular processing is available in both family-based and employment-based immigration cases. Generally, petitioners filing I-130 and I-140 petitions will choose whether visa processing will take place in the United States through what is called adjustment of status, or at a U.S. consulate abroad. If consular processing is chosen, the USCIS will forward the approved I-130 or I-140 petition to the National Visa Center.

Each approved immigrant visa petition will be assigned an NVC case number. The first three letters of the case number designate the U.S. consulate, followed by the year the petition was received by the NVC. The case number applies to the entire family but each family member must submit an individual immigrant visa application and civil documents and pay the required fees.

The NVC then sends a fee bill to the visa applicant or to the attorney of record, if any. For family-based cases, there is a separate fee for the review of the Form I-864 Affidavit of Support. Fees may be paid online through electronic fund transfer or by mail with a cashier’s check or money order.

After fees are paid, the NVC will send visa application instructions to the applicant. Documents to be submitted generally include the Form DS-230 Parts I and II, copy of the passport, two passport-style photos, original or certified copy of birth certificate, and an original or certified copy of a police certificate from each country where the applicant resided for 6 months or longer after age 16.

In family-based cases, the applicant must also submit a Form I-864 signed by the sponsor, along with supporting documents such as tax returns, W-2 form and a letter of employment. This requirement ensures that the applicant will not become a public charge. In employment-based cases, the applicant should submit a letter from the petitioning employer confirming the employment.

When all required documents have been submitted, the NVC will schedule the interview and send instructions to the applicant. The instructions will tell the applicant if any documents must be brought to the appointment, which will depend on the type of the application and on the circumstances of the applicant. The notice will also have a list of physicians who may conduct the required physical examination which will screen for relevant medical conditions. After the appointment is scheduled and instructions are sent, the file is transferred from the NVC to the consulate.

Visa applicants must appear personally at the interview. They should be prepared to respond to questions pertaining to their eligibility for the visa, including questions on prior U.S. immigration history and any criminal history. Marriage-based visa applicants should expect to be asked about their marital relationship. Employment-based applicants must be prepared to discuss their work history and answer questions regarding the proposed employment. The types of questions will vary from one applicant to another, especially since consular officers have wide discretion when it comes to questions to be asked.

If the applicant is found to be inadmissible to the U.S. and therefore ineligible for an immigrant visa, he/she may be able to apply for a waiver of the ground/s of inadmissibility. Many visa applicants get denied because of prior unlawful presence, misrepresentation, or criminal convictions.

If the visa application is approved, the consular officer issues the visa and stamps the applicant’s passport. The visa will be valid for travel to the U.S. within 6 months of issuance. The applicant will also be given a sealed envelope which he/she must give the officer at the port of entry. Finally, the new immigrant’s green card will be produced by the USCIS and mailed to the address provided in the visa application.

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