Permanent resident status is obtained either through issuance of an immigrant visa at the U.S. consulate abroad or through an adjustment of status application filed in the U.S. at the USCIS. See INA § 245(i).

Before an application for permanent residence can be made, eligibility for U.S. permanent residence must be demonstrated. An alien is eligible for U.S. permanent residence if:

• The alien is the beneficiary of an approved family or employment based visa petition;
• The alien is a derivative family member (spouses and unmarried children under age 21 of preference aliens);
• The alien qualifies for special immigrant status under INA § 101(a)(27); or
• The alien qualifies for U.S. permanent residence under special legislation such as the Diversity Visa Lottery. See INA § 203(c).

In addition, INA contains other special statutory provisions that permit adjustment of status for aliens physically present in the U.S. Some of these provisions include:

• Sections 202 and 203 of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”).
• Asylees and Refugees physically present for one year in the U.S., based on refugee status. See INA § 209(a).
• Battered Spouses or Children under the Violence Against Women Act of 1994. See INA § 204(a).
• Registry for individuals residing continuously in the U.S. prior to January 1, 1972. See INA § 249.
• Special Immigrant Juvenile provisions for certain abandoned or abused alien juveniles declared dependent on a juvenile court within the U.S. See INA § 101(2)(27)(J).

Consular Processing (“CP”)

In April of 1994,the U.S. Department of State (“DOS”) opened the National Visa Center (“NVC”), http://travel.state.gov/visa/immigrants_types_family4.html , a permanent immigrant visa processing facility in Portsmouth, NH. NVC processes all approved immigrant petitions that it receives from the USCIS. NVC will retain the petitions until the cases are ready for adjudication by a consular officer abroad. When an applicant's case is about to become current, the petition is forwarded to the appropriate U.S. embassy or consulate overseas.

DOS implements a uniform visa processing system, which uses a series of packets that are sent to the visa applicant. These packets contain standardized letters, questionnaires, and information sheets. Packets 1 and 2 are informational and are not discussed here. Packets 3 (was renamed “Instruction Package for Immigrant Visa Applicants” on December 11, 2001) and 4 (was renamed “Appointment Package for Immigrant Visa Applicants”) actually prepare the alien's case for the final interview. Packet 4a is now referred to as the “Follow-Up Instruction Package for Immigrant Visa Applicants.”

Instruction Package for Immigrant Visa Applicants (“Packet 3”)

Where the petition shows that the alien is exempt from numerical requirements or has a current priority date, NVC will send the petition to a consular post for processing and mail Packet 3 to the alien. If the alien has a legal representative, NVC will send Packet 3 to the attorney.

NVC sends beneficiaries of inactive petitions (oversubscribed categories with non-current priority dates) a Packet 3(a), which explains that a visa number is not yet available. Inactive petitions are held at NVC until the case becomes current, at which time NVC mails the alien Packet 3 if she is overseas.

If the alien has a U.S. address on the petition, the NVC will send her a letter informing the alien of the option available to seek Adjustment of Status (“AOS”) or to apply for a visa abroad. The alien is asked to return the form attached to the letter indicating which option she wishes to follow. Packet 3 usually consists of:

• Form OF-169 (recently renamed Form DS-2001) http://www.immihelp.com/forms/ds2001fill.pdf, Visa Document Transmittal Letter (covering letter for Packet 3, which contains a checklist of documents);
• Form OF-167, Evidence Which May Be Presented To Meet the Public Charge Provision of the Law http://www.immihelp.com/forms/of-167.pdf;
• Form OF-230 Part I, Application for Immigrant Visa and Alien Registration, Part I—Biographic Data (one for each applicant) http://travel.state.gov/DS-0230.pdf; and
• Form DSL-1083, Immigrant Visa Supplemental Information Sheet (which discusses the availability of foreign police certificates, the availability of foreign military records, the types of documents that can establish the bona fides of a marriage (in cases where eligibility is based on a marital relationship), and documentation to confirm the continued availability of employment (in cases where eligibility is based on an offer of employment)).

When the alien has gathered all of the listed documents, she should return a photocopy of each item to NVC along with the signed Form DS-2001 and completed Form OF-230 Part I.

In virtually all immediate relative cases and family-based preference cases and in certain employment-based cases (where a relative has a 5 percent or greater ownership interest in the business that filed the petition), NVC will also send Form I-864 http://uscis.gov/graphics/formsfee/forms/i-864.htm, Affidavit of Support, directly to the Petitioner or the Petitioner's legal representative. In such cases, Form I-864 is the only method of satisfying the public charge ground of exclusion. See INA § 212(a)(4).

Appointment Package for Immigrant Visa Applicants (“Packet 4”)

Once NVC receives notice that DOS has allocated an immigrant visa number for the case, it will send Packet 4 to the alien. Packet 4 normally consists of the following:

• Form OF-171, Immigrant Visa Appointment Letter, which gives standard instructions for immigrant visa applicants to make formal application for an immigrant visa;
• Form OF-171 Supplement (local form, gives post-specific information, such as location, time, fees, and special procedures for the visa appointment;
• Form OF-230 Part II, Application for Immigrant Visa and Alien Registration, Part II—Sworn Statement (one for each applicant) http://travel.state.gov/DS-0230.pdf; and
• Instructions for the Medical Examination (local form).

Packet 4 does not assure the immigrant that a visa will be issued, since that determination will be made by the consular officer only after the medical examination is completed, the application and all supporting documents have been reviewed, and the alien has been interviewed. The alien is also cautioned that while every effort will be made to expedite the processing on the day of the appointment, the process will normally take several hours.

Aliens seeking immigrant visas must undergo a medical examination by an approved panel physician to determine whether she is inadmissible. The purpose of the medical examination is to identify:

• communicable diseases of public health significance;
• lack of required vaccinations (see INA § 212(a)(1)(A)(ii);
• physical or mental disorders and behavior associated with the disorder that has passed, or may pose, a threat to the property, safety or welfare of the alien or others; and
• the condition of being a drug abuser or addict.

Every applicant must be interviewed except that the personal appearance of a child under the age of 14 may be waived. During the visa interview, the consular officer examines the documentation and asks any questions that he feels are relevant to the determination of the alien's admissibility. If the alien is eligible for an immigrant visa, Form OF-230 Part II is signed and sworn to before the consul at the time of the interview. The alien must pay the visa application fee and issuance fee.

The visa application (Form OF-230 Parts I and II), the supporting documents, and Form OF-155A (Immigrant Visa and Alien Registration—completed by the consular officer), and the alien's signed photograph, becomes the “immigrant visa”. This package is submitted to the USCIS at the port of entry or pre-flight inspection when the alien applies for admission as a permanent resident. If admitted into the U.S., USCIS will stamp the alien's passport with a temporary Form I-551 (i.e. green card), which will evidence the alien's lawful permanent resident status until his permanent Form I-551 is available.

Pursuant to INA § 221(c), an immigrant visa is valid for a maximum period of six months. If the alien does not use the immigrant visa before it expires, it may be replaced under the original number during the fiscal year in which the original visa was issued if she establishes to the satisfaction of the consular officer that she was unable to use the original immigrant visa during the period of its validity because of reasons beyond her control and for which she was not responsible. If the alien qualifies for a new immigrant visa, it will only be issued after she again pays the statutory fees for an application and an immigrant visa. If the visa application is denied, there is no possibility to review that decision.

Adjustment of Status (“AOS”)

Some aliens physically present in the U.S. can become lawful permanent residents by applying for adjustment of status (“AOS”) in the U.S. instead of going to an American Consulate abroad for an immigrant visa appointment.

Not everyone is eligible to adjust status in the U.S. Requirements for AOS are found at Title II, Chapter V of the INA. Section 245 of the INA provides for AOS for many aliens who have maintained valid non-immigrant status in the U.S. and have not engaged in unauthorized employment. INA § 245 bars adjustment of status for the following individuals:

• Foreign National Crewmen;
• Transits without visas (aliens traveling in transit through the U.S. to a foreign destination);
• Aliens who entered the U.S. under the VWP pursuant to 8 C.F.R. § 212(i) and conditional resident investors under INA § 216A may not adjust status unless they are immediate relative of U.S. citizens;
• Aliens with unauthorized employment on or after January 1, 1977 cannot adjust status (Immediate relatives and special immigrants defined at INA § 101(a)(27)(H), (I), (J) or (K) are exempted from this bar).
• Failure to maintain legal status in the U.S., including violations on prior visits to the U.S., will render most aliens ineligible for adjustment of status under INA § 245.

Applicants for AOS are given the privilege of obtaining open market employment authorization and permission to travel concurrent with the filing of an adjustment of status application. The USCIS will grant employment authorization (“EAD”) in one year increments. Generally, applications for adjustment of status take over one year to process. Applicants must keep track of the expiration date of their EAD and apply for renewals at least 90 days before expiration of the current EAD. Renewal applications are filed at the USCIS office with jurisdiction over the application for AOS.

As previously discussed, advance parole documents allow aliens to travel abroad while their adjustment of status application is pending. Aliens holding valid, unexpired H and L visas who have maintained valid status in the U.S. can travel without an advance parole document. Adjustment of status applicants who travel abroad without an advance parole document or without a valid H or L visa are deemed to have abandoned the adjustment application and will be required to re-apply for adjustment.

Applicants for adjustment of status who have been unlawfully present in the U.S. for 180 days or more should not seek advance parole or travel abroad. Travel outside the U.S. will trigger the three- or ten-year bar of admissibility on reentry pursuant to INA § 212(a)(9)(B)(i)(I) and (II).

An adjustment of status package typically requires the following documentation:

• Form I-485; http://uscis.gov/graphics/formsfee/forms/i-485.htm
• Supplement A to Form I-485 for INA § 245(i) applicants; http://uscis.gov/graphics/formsfee/forms/i-485supa.htm
• Biographic Form G-325A (for applicants 17 and over); http://uscis.gov/graphics/formsfee/forms/g-325a.htm
• Photos with ¾ frontal view;
• Medical Form I-693 and Supplement; http://uscis.gov/graphics/formsfee/forms/i-693.htm
• Notice of petition approval from USCIS. Immediate relatives can file the I-130 http://uscis.gov/graphics/formsfee/forms/i-130.htm petition along with the I-485 application instead of waiting for petition approval;
• Copies of applicant’s passport, Form I-94 and all status documents such as Form I-797, I-20s, IAP-66 where applicable;
• Birth, marriage and divorce certificates;
• Evidence of financial support, such as a letter confirming an offer of permanent employment or affidavit of support, Form I-864; http://uscis.gov/graphics/formsfee/forms/i-864.htm
• Employment authorization Form I-765; http://uscis.gov/graphics/formsfee/forms/i-765.htm
• Advance Parole Application, Form I-131 http://uscis.gov/graphics/formsfee/forms/i-131.htm, with photographs;
• Filing fees.

Some aliens have a choice between using AOS or CP. The main advantage of CP is the timeframe involved in adjudication. CP is generally quicker and usually takes less than one year to complete. For AOS, USCIS processing centers have varying backlogs on § 245 adjustments. In fact, it is not uncommon for an application to take longer than one year to adjudicate and in some cases, as long as three years.