How Do I Become a Lawful Permanent Resident While in the United States?

Background

An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States. You must go through a multi-step process to become an immigrant.

First, the USCIS must approve an immigrant petition for you, usually filed by an employer or relative.

Second, the State Department must give you an immigrant visa number, even if you are already in the United States.

Third, if you are already in the United States, you may apply for Adjustment of Status to permanent resident status. (If you are outside the United States, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.)

Important information regarding employment-based Green Card: An undated memorandum from USCIS' William Yates rescinds a March 3, 2004 memo on concurrent adjudication of I-140s/I-485s, although concurrent filing continues. Previously, the Form I-485 could not be filed until the Form I-140 was approved, thus delaying the many benefits associated with the Form I-485 filing. As has always been the case, the Form I-485 cannot be filed until an immigrant visa number is available.

How does concurrent filing affect the filing for work authorization and advance parole?

Under the rule, immigrant visa applicants and their spouses, can also seek employment authorization and/or advance parole simultaneously with their concurrent Form I-140 and Form I-485 filing.

Who is eligible to file concurrently?

The interim rule applies to employment-based immigrant petitions under the First, Second and Third Preference categories (Section 203(b)(1),(2), and (3) of the Immigration and Nationality Act). Applicants with pending labor certification applications must await approval of the application by the Department of Labor to benefit from this provision. The following is a list of the types of Form I-140 immigrant petitions which benefit from this new rule:

• Individuals of Extraordinary Ability;
• Outstanding Researchers;
• Multinational Managers and Executives; · National Interest Waiver candidates (who hold an advanced degree or are of exceptional ability);
• Advanced Degree Professionals with an underlying approved labor certification from their sponsoring employer;
• Professionals holding Bachelor's degree with an underlying approved labor certification from their sponsoring employer;
• Skilled Workers - i.e. are being offered a job that requires at least two years experience, with an underlying approved labor certification from their sponsoring employer;
• Other workers (unskilled labor- and who have an underlying approved labor certification from their sponsoring employer).

When is an immigrant visa petition and adjustment application considered to be concurrently filed?

There are three instances in which an immigrant visa petition (Form I-140) and adjustment of status application (Form I-485) will be considered concurrently filed:

1) Where the Form I-140 and Form I-485 are submitted simultaneously*, which is defined as:

• filed at the same time and mailed to the same Service Center;
• enclosed within the same single mailing envelope; submitted with the correct filings fees;
• and received on the same day (at the same Service Center).

(*This requires the applicant to have an immigrant visa available).

2) Where a Form I-485 application is to join up with a currently pending Form I-140 petition, provided that -

• a visa number is available;
• the correct filing fee is enclosed;
• there is proof of the proper receipt of the Form I-140 filing receipt (Form I-797, Notice of Action); and
• it is filed at the same Service Center as the Form I-140 petition.

3) Where an applicant is in deportation or removal proceedings before the Immigration Court or has an appeal pending before the Board of Immigration Appeals. In the above instance, the same rules as in #2 above apply except that the filing of the I-485 must be made with the Immigration Court or Board of Immigration Appeals, depending upon which body has jurisdiction over the case.

What Does the Law Say?

The Immigration and Nationality Act is a law that governs immigration in the United States. For the part of the law concerning permanent resident status, please see INA § 245. The specific eligibility requirements and procedures for adjusting to permanent residence status are included in the Code of Federal Regulations [CFR] at 8 CFR § 245.

Who is Eligible?

To find out who may apply for permanent residence in the United States, please see eligibility information under the for Work Visa and Family Based Visa sections on this web site. (Please note, your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence.