U.S LAWFUL PERMANENT RESIDENT STATUS

There are various ways to qualify and obtain permanent resident (LPR) status in the United States. Lawful permanent resident status allows an alien to live and work in the United States for an indefinite duration, but does not confer the rights and privileges of citizenship, such as the right to vote, to apply for US passport or to run for president. Once a person obtains lawful permanent resident status, it can only be taken away through a judicial system, as aliens have due process rights. The process of taking away a person’s LPR status is called a “Revocation proceeding”. Removal proceeding is a type of revocation because it is intended to take away the alien’s LPR status. There are many reasons a person’s lawful resident status can be taken away. The most common ones are caused by criminal convictions, abandonment, fraud in procuring the status, etc.


How to Get Lawful Permanent Resident Status
Family-based permanent residency under Section 245:
The most common form for qualifying for permanent resident status is through family-based petitions commonly called alien relative petition. Under U.S immigration law, family members of U.S. citizens and lawful permanent residents can obtain legal resident status through their relatives who are citizens or lawful permanent resident of the United States.  There are only six family relationships that an immigrant can derive lawful permanent resident status from, and some relationships have priority and preferences over others.

  1. Immediate Relatives (meaning spouses, children and parents of US citizens). For immigration purposes, a “child” is a person under 21 years of age. Also for immigration purposes a child could be a biological, adopted or step-child of a US citizen. (Note that immigration purposes a step-child relationship occurs if the marriage between the child’s parent and the step parent occurs before the child’s 16th birthday).
  2. First Preference (Unmarried sons and daughters of U.S citizen). In this case a “son” or “daughter” is a person over 21 years of age. (Note that “aging out” where the child turns 21 years of age while alien relative petition is still pending mostly will delay your son’s or daughter’s status for years). However, Child Status Protection Act of 2002 may apply to freeze your son or daughter’s age to prevent him or her from “aging-out”.  Tip. Consult an attorney to verify whether CSPA can freeze your son or daughter’s age to under 21 years until he or she get their green-card as your “child”.
  3. Second Preference (2A) (spouses and unmarried children under the age of 21 of lawful permanent residents). Although 2A preference category has the same family relationship as “Immediate Relatives”, they do not have the same “priority” as the immediate relatives of citizens. Immediate relatives of lawful permanent residents must wait while immediate relatives of citizens go to the head of the line!
  4. Second Preference (2B) (unmarried sons and daughters over the age of 21 of lawful permanent residents.
  5. Third Preference (married sons and daughters of U.S. citizens). Note the category is married “sons” and “daughters”, which means over 21. If your married child is under 21, he or she would qualify as a “child” and therefore would be considered an immediate relative! (Cite)
  6. Fourth Preference (brothers and sisters of U.S. citizens).

As explained above, except for Immediate Relatives, all the other categories are subject to an annual quota. This means that the waiting time varies by category.  The way to stay updated on how fast the categories are moving is by checking the U.S. State Department Visa Bulletin, which provides monthly update on availability of visas.

How to Apply for Family Based Lawful Permanent Resident.
An immigrant can apply for lawful permanent resident with the Department of Homeland Security by filing Form I-485. In the case of an immigrant with qualifying immediate relative (spouse, children or parent of United States citizens), the I-485 may be submitted concurrent (jointly) with the alien relative petition (I-130).  The alien filing a concurrent application must also file an affidavit of support (Form I-864 showing sufficient income and supported by the most recent 1040 tax return of the petitioner). Where the petitioner does not have sufficient income to meet 125% of the income guideline his or her family depending on family size, the petitioner is required to obtain a joint sponsor.  The concurrent applications must be filed with supporting documents that establish the claimed relationship. Examples include marriage certificates, divorce decrees if applicable, birth certificates, naturalization certificates, proof of lawful entry into the U.S (i.e. visa and passport), passport photos of the beneficiary, and appropriate filing fees. This package must be sent to the lock-box for the jurisdiction of your residence.  For information regarding the appropriate address for your adjustment application visit Department of Homeland Security at www.uscis.gov.

Weeks after your application is properly filed, the beneficiary will be requested to appear at USCIS district office to provide biometric information. At this appointment, the immigrant fingerprint is taken and their pupil photographed and stored in the government’s database. This biometric information is used to conduct a “background check” for criminal convictions and for ties to terrorism or national security threat.

After the biometric appointment, the immigrant is scheduled for “adjustment interview” where an immigration adjudicator goes over the immigrant’s application while he or she is under oath. At the adjustment interview, the immigration generally asks questions that go to eligibility. For example in marriage-based adjustment interview, the immigrant has the burden establishing that the marriage is “bona fide” or “entered in good faith”. The officer also asks the alien questions regarding “admissibility or inadmissibility” of the alien. Criminal convictions, membership or participation in some activities, infectious diseases, public charge concerns, illegal entry into the U.S, immigration law violation history may be addressed where present. Although the adjustment of status process is fairly straight forward, we have always advised that the immigrant use the services of an attorney who is familiar with the local USCIS office and officers. If the alien has any criminal history or any other inadmissibility concerns, the alien is greatly advised to consult an attorney before filing any application.

Note in all cases except marriage-based lawful permanent residency, once the petition is approved, it is unconditional. In marriage-based cases, if the alien and citizen spouse have been married for less than 2 years preceding the approval date, the alien is granted a “conditional green-card” and is required to file a petition to remove the condition (Form I-751). For additional information regarding the I-751 process, please visit our I-751 page.