Immigration Law -- The Visa Process

By John DiMotto

As we begin 2011 and as I move into my second year as a blogger, I have decided to leave my "comfort zone" -- Wisconsin law -- and look at a more national issue: Immigration Law. My focus in this upcoming series will NOT be on whether the law and procedures are good or bad rather the focus will be on what the law requires and what what must be done to comply with the law. Additionally, I want to look at the law as it pertains to "Alien Relative" immigration as well as "Fiance" immigration. Today, I will discuss "Alien Relative" immigration.

Alien Relative Immigration:

U.S. citizens who want a relative to immigrate to the U.S. and obtain status as a permanent resident have a number of options to pursue. Also, depending on the nature of the relative "relationship," the time it will take to obtain the appropriate visa will be different.

Immediate Relative Immigration:

If the relative seeking a visa to immigrate is an "immediate relative", he/she does not have to wait for a visa number. There are an unlimited number of visa numbers is immediately available to an "immediate relative." An "immediate relative" is a spouse, unmarried children under the age of 21 and parents. The fact that there are an unlimited number of visa numbers for "immediate relatives" does not mean that there is no wait time for the issuance of the "immediate relative" visa. More on this later.

Family Preference Category Immigration:

If the relative seeking a visa to immigrate does not qualify as an "immediate relative" then that relative is placed in the "family preference" category. This relative must wait in line for a visa number to become available for him/her to immigrate because there are a limited number of these visas available each year. Those persons in the "family preference" category include unmarried sons or daughters over the age of 21, married children of any age, brothers and sisters if the U.S. citizen petitioner is over the age of 21.

From the time the Petition for Alien Relative (I-130) is filed in the case of an "immediate relative" or starting from the time a visa number becomes available in the case of a family preference category relative, until the time the visa is actually issued can take between 6 to 10 months. This process entails the U.S. Citizenship and Immigration Services (USCIS) to review the I-130 (4 - 5 months). If approved it is sent to the State Department National Visa Center (NVC) for its review (1 - 3 months). If approved the documents are sent to the U.S. Embassy in the country where the alien relative lives where the staff will review the documents and call the alien relative in for an interview (1 - 2 months) after which it makes a final decision.

Once the alien relative is admitted to the U.S., in order to be granted permanent residence status (issued a green card) another petition (I-485) must ordinarily be filed, reviewed and approved. (There is an exception which I will not discuss today.) Once the "green card" is issued, then the alien relative may obtain employment. (There is a provision in the law whereby the alien resident, while waiting for the "green card" can petition for an employment authorization document [EAD]. I will not discuss this today.) The timeline for approval of the I-485 can be 5 months.

As you can tell by the process, from the time the I-130 is filed and a visa number is available (immediately for an "immediate relative" but with a time delay for those in the "family preference" category) until the "green card" is issued can take up to 15 months. The wheels of government do rotate slowly.

More on these immigration issues in my next blog.