Engaging with the U.S. immigration system every day, it can be easy to take for granted concepts and terms of art which may not be entirely intuitive to non-practitioners. The following terms and concepts come up frequently when discussing U.S. immigration and understanding what they mean can equip you with the fundamental knowledge to discuss the topic with your potential clients.
Nonimmigrant visas allow the individual to temporarily enter the United States for a specific purpose. There are many categories of nonimmigrant visas for a number of different purposes, including the B visa, for individuals entering temporarily as visitors for either business or pleasure, the H visa, which provides temporary authorization to work for an employer in the United States, or the K visa, which allows the fiancé of a U.S. citizen to enter the country for the purpose of getting married. When the individual’s authorized period of stay expires they must leave the country and, while inside the country, should only engage in activities allowed by the specific visa status the individual holds. For example, visitors on a B visa are not allowed to accept employment in the U.S.
Immigrant visas, sometimes informally referred to as green cards, grant the individual status as a U.S. permanent resident. The immigrant visa gives the bearer the unrestricted ability to enter the United States and reside on a permanent basis for as long as the individual desires. Additionally, the individual can accept or engage in any legal employment in the United States without the need for the employer to sponsor any immigration related filings. Some immigrant visas are granted on a conditional basis, such as those given to the newly sponsored spouse of a U.S. citizen who must then demonstrate the marriage two years later to have the conditions removed and those given to EB-5 applicants who must demonstrate the maintenance of their investment, but these conditional visas provide the same travel and employment benefits for as long as they are facially valid.
When an individual files a petition for an immigrant visa they are assigned a priority date. The priority date can be thought of conceptually as the day on which the government first received formal notification the individual wished to become a permanent resident. The priority date will either be the day the government received the individual’s immigrant visa petition or, if the person is pursuing permanent residency through a pathway which requires a PERM Labor Certification, the day the labor certification was filed. The U.S. government issues a finite number of immigrant visas per fiscal year and they are allocated proportionally to a number of different categories on a country by country basis. If more individuals from a particular country file in a particular category than there are visas available for the year a waiting line forms. In lay terms, the individual’s priority date is effectively their spot in the line for a green card. Some country/category combinations have no line, some have a short line, and in extreme instances some have lines requiring a wait of 10-20+ years because they have so many more applicants than available visas. Country/Category combinations with no waiting line are called Priority Date Current.
Adjustment of Status
Adjustment of status is the process through which an individual physically present in the United States in a nonimmigrant status can apply to become a permanent resident. It is filed on Form I-485 and the application can be submitted either at the same time as the individual’s immigrant visa petition if the individual is filing in a Priority Date Current category for their country or after the immigrant visa petition has been approved and the waiting line has advanced far enough for the individual’s priority date to become eligible for filing. Adjustment of status applicants are eligible for several interim benefits while waiting for the application to be approved. These include an Advance Parole document allowing them to leave the United States while the petition is pending and an Employment Authorization Document allowing them to accept employment. In all but a few specific circumstances exiting the United States without an Advance Parole document while the Adjustment of Status is pending results in the abandonment of the Adjustment of Status application.
Consular processing is the process through which an individual outside the United States applies to receive an immigrant visa from a U.S. consulate abroad. The individual still needs to file an immigrant visa petition and receive approval from USCIS, the consular process then takes place as an alternative to the Adjustment of Status application discussed above. The individual must wait for a Consulate appointment to become available, attend an interview, and undergo medical exams. If approved by the Consulate the person can then travel to the United States and become a permanent resident upon arrival without the need to possess any type of nonimmigrant visa.