Immigration Overview

 How to get a Green Card through Family


Immediate Relatives of U.S. Citizen:

  • The spouse of a U.S. citizen;
  • The unmarried child under 21 years of age of a U.S. citizen; or
  • The parent of a U.S. citizen (if the U.S. citizen is 21 years of age or older)

Other relative of a U.S. Citizen or relative of a Lawful Permanent Resident (LPR) (family based preference categories***):

  • Family member of a U.S. citizen, meaning you are the:
    • Unmarried son or daughter of a U.S. citizen and you are 21 years old or older 
    • Married son or daughter of a U.S. citizen 
    • Brother or sister of a U.S. citizen who is at least 21 years old 
  • Family member of a lawful permanent resident, meaning you are the:
    • Spouse of a lawful permanent resident 
    • Unmarried child under the age of 21 of a lawful permanent resident 
    • Unmarried son or daughter of a lawful permanent resident 21 years old or older 

                *** Family Based Preference Categories:

                       · First preference (F1) - unmarried sons and daughters, 21 years of age and older, of U.S.

                         citizens;

                       · Second preference (F2A) - spouses and children (unmarried and under 21 years of age)

                         of lawful permanent residents;

                       · Second preference (F2B) - unmarried sons and daughters, 21 years of age and older, of

                         lawful permanent residents;

                       · Third preference (F3) - married sons and daughters of U.S. citizens; and

                       · Fourth preference (F4) - brothers and sisters of U.S. citizens (if the U.S. citizen is 21

                         years of age and older).


Fiancé(e) of a U.S. Citizen or the Fiancé(e)’s child:

  • Person admitted to the U.S. as a fiancé(e) of a U.S. citizen (K-1 nonimmigrant) 
  • Person admitted to the U.S. as the child of a fiancé(e) of a U.S. citizen (K-2 nonimmigrant) 

Within 90 days after being admitted as a K-1 nonimmigrant, the foreign national must enter into a bona fide marriage with the U.S. citizen who filed the Form I-129F, Petition for Alien Fiancé(e), on his or her behalf. The foreign national spouse can then apply for lawful permanent resident status in the United States (get a Green Card).


V Visa:

The V visa is a nonimmigrant visa created to allow families to stay together while waiting for the processing of immigrant visas.


If you are a permanent resident (Green Card holder), your spouse, child (unmarried and under 21), or the child of your spouse (your step-child) may be eligible for a V visa if:

  • You filed Form I-130, Petition for Alien Relative, for your family member on or before December 21, 2000. This includes children (unmarried and under 21) listed on the petition.  
  • The family member has been waiting at least 3 years since you filed the Form I-130.
  • The immigrant visa is not available on an approved Form I-130 petition OR the application to adjust status is pending OR the petition for an immigrant visa is pending.

Widow(er) of a U.S. Citizen:

Widow or widower of a U.S. citizen and you were married to your U.S. citizen spouse at the time your spouse died. To immigrate as the widow(er) of a citizen, you must prove that you were legally married to the citizen, and that you entered the marriage in good faith, and not solely to obtain an immigration benefit.


VAWA Self-Petitioner – victim of battery or extreme cruelty:

  • Abused spouse of a U.S. citizen or Lawful Permanent Resident 
  • Abused child (unmarried and under 21 years old) of a U.S. citizen or Lawful Permanent Resident (LPR)
  • Abused parent of a U.S. citizen

Under the federal Violence Against Women Act (VAWA), you may be eligible to become a lawful permanent resident (get a Green Card) if you are the victim of battery or extreme cruelty committed by:

  • A U.S. citizen spouse or former spouse; 
  • A U.S. citizen parent; 
  • A U.S. citizen son or daughter; 
  • A Lawful Permanent Resident (LPR) spouse or former spouse; or 
  • An LPR parent. 

Under VAWA, you may file a Petition without your abusive family member’s knowledge or consent. If your self-petition is approved and you meet other eligibility requirements, you may be eligible to apply to become a Lawful Permanent Resident.


How to Change Immigration Status


The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States. The individual must be able to meet all required qualifications for a green card (Lawful Permanent Resident) in a particular category. The common term for a change to permanent status is "adjustment of status".


The INA provides two primary paths to lawful permanent resident status if you are the beneficiary of an approved immigrant petition and an immigrant visa number is immediately available to you. You can (1) “adjust status” or (2) go through consular processing.


Adjustment of status is the process by which an eligible individual already in the United States can get Lawful Permanent Resident status (a Green Card) without having to return to their home country to complete visa processing.


Consular processing is an alternate process for an individual outside the United States or who is in the United States but is ineligible to adjust status to obtain a visa abroad and enter the United States as a permanent resident. For consular processing, the person intending to immigrate to the United States goes to a U.S. Department of State consulate or embassy in his or her home country to complete the application for a U. S. Green Card (Lawful Permanent Resident).


Green Card for Person Born in the United States to a Foreign Diplomat


A person born in the United States to a foreign diplomatic officer accredited to the United States is not subject to the jurisdiction of United States law. Therefore, that person cannot be considered a U.S. citizen at birth under the 14th Amendment to the United States Constitution. This person may, however, be considered a permanent resident at birth and able to receive a green card through creation of record. The parent’s accredited title must be listed in the State Department Diplomatic List (Blue List). The Blue List includes:

  • Ambassadors
  • Ministers
  • Charges d’affaires
  • Counselors
  • Secretaries and attaches of embassies and legations
  • Members of the Delegation of the Commission of the European Communities

It also includes those with comparable diplomatic status and immunities assigned to the United Nations or to the Organization of American States and other persons who have comparable diplomatic status.


Green Card through the Diversity Immigrant Visa Program


The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries to individuals who are from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS).


For an applicant to adjust status under the DV Program, you must establish that you:

  • Have been selected for a diversity visa by DOS’s lottery;
  • Have an immigrant visa immediately available at the time of filing an adjustment application; and
  • Are admissible to the United States.

Green Card through LIFE Act (245(i) Adjustment)


The Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 enable certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain a Green Card (permanent residence) regardless of:

  • The manner they entered the United States
  • Working in the United States without authorization
  • Failing to continuously maintain lawful status since entry

To qualify for this provision, you must be the beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001. In most cases, you must pay an additional $1,000 fee and complete Supplement A to Form I-485, to apply under Section 245(i) provisions with your adjustment of status application (Form I-485).


Citizenship Through Naturalization


Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA). You may qualify for Naturalization if:

  • You have been a permanent resident for at least 5 years and meet all other eligibility requirements.
  • You have been a permanent resident for 3 years or more and meet all eligibility requirements to file as a spouse of a U.S. citizen.
  • You have qualifying service in the U.S. armed forces and meet all other eligibility requirements.
  • Your child may qualify for naturalization if you are a U.S. citizen, the child was born outside the U.S., the child is currently residing outside the U.S., and all other eligibility requirements are met. 

Nonimmigrant Visas


Business (B-1):

  • Consult with business associates
  • Attend a scientific, educational, professional, or business convention or conference
  • Settle an estate
  • Negotiate a contract
  • Personal or domestic employees who are accompanying or following to join an employer in the United States

Tourism (B-2):

  • Tourism
  • Vacation (holiday)
  • Visit with friends or relatives
  • Medical treatment
  • Participation in social events hosted by fraternal, social, or service organizations
  • Participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating
  • Enrollment in a short recreational course of study, not for credit toward a degree (for example, a two-day cooking class while on vacation)

Student (F):

  • University or college
  • High School
  • Private elementary school
  • Seminary 
  • Conservatory 
  • Another academic institution, including a language training program

Student (M):

Vocational or other recognized nonacademic institution, other than a language training program


Exchange Visitors (J-1/J-2):

J-1 Visa is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.


Examples of exchange visitors include, but are not limited to:

  • Professors or scholars
  • Research assistants
  • Students
  • Trainees
  • Teachers
  • Specialists
  • Nannies/Au Pair Program
  • Camp counselors

J-2 Visa is a non-immigrant visa issued by a consular official at a U.S. embassy or consulate for spouses and dependents (unmarried children under the age of 21) of J-1 exchange visitors who accompany or later join the J-1 holder in the United States. Eligibility for a J-2 Visa depends on the specific exchange program being offered to the J-1 non-immigrant by a sponsor organization. Any J-2 Visa with the Employment Authorization Document (EAD) can work for any employer in the United States without sponsorship.


Individuals with Extraordinary Ability or Achievement (O):

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.


The O nonimmigrant classification is commonly referred to as:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).
  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.
  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1.
  • O-3: individuals who are the spouse or children of O-1’s and O-2’s.

How to be Prepared for a Raid or Arrest


Everyone who lives in the U.S. has legal rights, even if they are undocumented. Our legal rights are in the U.S. Constitution, a document that protects us from bad or unfair treatment by law enforcement or the government. To protect yourself, learn about the right to be silent, the right to talk to a lawyer, your rights inside your home or on the street, and more.


To be ready for a raid or arrest:

  • Know your rights: to ask for a lawyer, and when to stay quiet or ask to see a warrant.
  • Have an emergency plan, with phone numbers to call, a lawyer's name  and number, someone to take care of your family, and a safe place at home where you keep important papers and contact information.
  • Do not use or carry a fake I.D. or information. Bad documents or lies can make your situation worse.
  • Note: You do not have to answer calls or text messages from  immigration officers. If you answer the call, you do not have to talk to them. You can tell them you want to talk to your lawyer.

If you are in a raid or arrest:

  • If you are stopped by police or immigration, you can ask if you are "free to leave?" If the officer says "yes," then you can calmly walk or drive away.
  • You do not have to answer questions about your legal status, where you were born, or how you came to the U.S. You can tell the officer that you have a "right to remain silent."
  • You have the right to talk to a lawyer before you answer questions. You can tell the officer that you want to talk to your lawyer first. In some places, you have to give your name if the officer asks.
  • At your home, the police or immigration often need a "warrant" or your permission to come in. A warrant is permission from a judge. It must be signed by the judge. You can ask them to slip the warrant under your door. You can tell them you will not open the door and they cannot come into your home without a warrant.
  • You do not have to sign papers that you do not understand. Wait until you talk to a lawyer. Do not let someone scare or force you into signing any papers.
  • Stay calm and think before you talk or act.

Be Skeptical of Unrealistic Promises

Not even the best attorneys can guarantee success. Ultimately, the outcome of your case is up to an Immigration Judge (IJ), the Department of Homeland Security (DHS) and/or U.S. Citizenship and Immigration Services (USCIS), a component of the United States Department of Homeland Security.

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Disclaimer: General information, such as that provided by the Law Offices of Atonya McClain, PLLC, does not constitute individual legal advice nor is it meant to take the place of the assessment of an expert. However, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.