Under the immigrant visa process, an individual must first establish eligibility based on a family or employment relationship, or as a diversity immigrant, and then apply for a visa before a U.S. consul abroad. It is at the time of the consular interview that the grounds of inadmissibility and waivers are considered. Upon approval, the person may travel to the United States and be inspected to ensure compliance. Upon inspection and admission, the person is considered to be a “permanent resident.”
Adjustment of Status
The “adjustment of status” route allows a person to obtain permanent residency without having to proceed overseas to apply for an immigrant visa. To qualify for adjustment, the applicant must have been inspected and admitted or “paroled,” be in lawful status, and not have worked illegally in the United States subsequent to January 1, 1977. There also must be a visa number “immediately available” at the time of the application. This requirement refers to the quota availability and preference category under which the person seeks permanent residency.
The adjustment applicant must be able to overcome any and all grounds of inadmissibility. Even if a person meets these statutory eligibility requirements, his or her application still may be denied as a matter of discretion. The discretionary factors are family ties in the United States, hardship in traveling abroad, length of U.S. residence, previous immigration violations, and preconceived intent (which refers to the intent that a person may have had at the time of his or her last admission prior to pursuing adjustment of status). If a person is seeking adjustment based on an immediate relative petition, preconceived intent, standing alone, is not sufficient to deny the application.
Whether a person is able to become an LPR also will be controlled by whether he or she can satisfy the quota requirements. The statute exempts from the quota “immediate relative” defined as the “children, spouses and parents” of a U.S. citizen; when a child petitions for his or her parent, he or she must be at least 21 years of age. The quota for family immigrants is set at 480,000 less the number of immediate relative visas issued, with a minimum of 226,000 reserved for non-immediate relatives.
The quota for employment-based immigrants is limited to 140,000 visas plus the unused numbers from the family preferences. Immigrant visas under the diversity lottery are at 55,000. Other limits are country-based. No more than 7 percent of the total visas-or 25,600-can be used by nationals of any one country. In addition, no more than 2 percent-or 7,320-can be used by nationals from “dependent” areas.