Different Ways to Get a Green Card or Lawful Permanent Resident (LPR)
Fork in the RoadYou know your destination, or where you need to be, but are taking an unfamiliar path to get there. Suddenly you stop. “What now?” you ask yourself as you ponder the fork in the path. “Right or left?” “Will both paths lead to the same endpoint, or do they go in two different directions?” “Which one will take me to where I need to go?”
Similar to the literal “fork in the road” are the two paths that lead to the same treasure of Lawful Permanent Resident (LPR), more commonly known as a Green Card. The path you will travel is predetermined by where you live and your current U.S. immigration status, or lack thereof. What does this mean? Simply put, there are two ways to get a green card, and the path you need to take depends on your circumstance. However, both processes require a petition to be filed on behalf of the immigrant.
The path to a green card starts with a petition being filed for an immigrant. This petition is known as Petition for Alien Relative, USCIS form I-130. The people who are allowed to file this form are restricted but include a relative, such as s spouse, brother or sister. An employer can also petition for a person and obtain a labor certification for them. The petition path is the starting point, and after it is approved, the figurative fork begins. To the left is what is known as the Visa Processing or Consular Process. To the right, is Adjustment of Status.
Visa or Consular Process
The fancy words used to describe this process merely mean that part of the Green Card petition/application is done in the home country of the immigrant at his or her local U.S. embassy or consulate office.
The Visa or Consular Process is generally for a person who lives outside the U.S. and is coming to the United States with a Visa for the first time; although, this process may apply to an undocumented person who lives in the U.S.
As mentioned above, the first step to LPR is that a petition is made on behalf an immigrant. If approved, the petition will be sent to a National Visa Center (NVC). The NVC will then issue a case number and send the petition to the local U.S. embassy or consulate office where the immigrant lives. Upon notification, the immigrant will apply for a visa at a specified U.S. embassy or consulate office. The approved application is followed by an in-person interview. Lastly, upon approval, the individual can come to the U.S. to claim Lawful Permanent Resident status.
Adjustment of Status
If the above does not describe your situation, then you may be eligible for Adjustment of Status. This path to a Green Card generally applies to a person who has valid immigration status and is legally living in the U.S., such as a person who is in the U.S. on a K-1 Visa (fiancé visa). In this case, after a petition is filed for the immigrant and approved, he or she can submit documents for LPR and attend an interview at a USCIS office in the U.S. In other words, the immigrant does not have to leave the U.S. in order to apply for a Green Card; everything can be done the U.S. But what if you are undocumented and in the U.S.? Maybe you have overstayed your visa or entered without inspection. What then?
Undocumented and living in the U.S.
If someone petitions on your behalf, but you are undocumented and living in the U.S., then you will be required to leave the U.S. to obtain your green card. This is not an ideal situation because once you leave, you may not be allowed back into the United States. This is because of what is known as an immigration bar.
If a person unlawfully lives in the U.S. because he or she entered the U.S. with a valid visa, then overstayed or entered without inspection they are referred to as “undocumented.” Undocumented immigrants are subject to a “penalty” that comes in the form of an immigration bar. The bars can be for 3 or 10 years.
A person is subject to a 3-year bar if he or she lived undocumented in the U.S. for six months to one year. A person is subject to a 10-year bar if he or she lived undocumented in the U.S. for one year or more.
For example, Sophia is from Brazil came to the U.S. with a tourist visa (B-2 visa). After arriving, she decided to permanently stay in the U.S. and live with her U.S. citizen mother, Giovanna. Five years later, Giovanna files an I-130 petition for Sophia so she can get LPR. The petition is approved, but Sophia must travel to Brazil to finish the green card process. If Sophia leaves the U.S. to travel to Brazil, she will be subject to a 10-year bar because she remained in the U.S. for more than one year after her expiration date of her I-94 (Form I-94 Arrival/Departure Record).
Even if a person is undocumented, he or she may qualify to file for a waiver that will allow him or her to complete the entire Green Card process in the U.S.
There are different types of immigration waivers. They include, 212d3(A)(i) and 212d3(A)(ii) waiver for nonimmigrant temporary status; I-601 waiver for immigrant status; and I-601A provisional waiver for immigrant status. However, the I-601 waiver is appropriate for undocumented persons. Generally a person applying for this waiver must show extreme hardship not to himself or herself, but to the U.S. petitioner.
Still not sure which path to LPR you qualify for? If so, give us a call and let The Claro Law Firm help you. The Claro Law Firm serves Westchester County including Elmsford, Tarrytown and Yonkers, New York. New York immigration lawyer, Elisa Claro Esq. is waiting to help you with this difficult issue. Contact us today online or by phone at 917-300-3334.