Immigrant visas & Consular Processing of Immigrants

An experienced New York law firm


Let the law firm of Berd & Klauss, PPLC assist you with immigrant visas. We are also able to help with the consular processing of immigrants. Our team is experienced and dedicated to providing quality service. Please call us to sit down with someone from our office and talk about what you need. We're ready to assist you.

Immigrant Visas

Employment Immigration


An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

The USCIS must approve an immigrant petition (application) that was filed for you, usually by an employer.

In most employment categories (See EB-2 and EB-3 eligibility and filing information below), a U.S. employer must complete a labor certification (ETA Form 9089) on your behalf.This important stage involves advertising for the position. Once the labor certification is approved, your employer can file Form I-140.
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If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. Please see How Do I Get an Immigrant Visa Number? and How Do I Become a Lawful Permanent Resident while in the United States? If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. Consulate to complete the processing for an immigrant visa.
How Do I Get an Immigrant Visa Number? How Do I Become a Lawful Permanent Resident while in the United States?

Labor Certification


In the complex Labor Certification process, a U.S. employer seeks a Labor Certificate from the U.S. Department of Labor for the benefit of a prospective alien employee. A Labor Certificate is a prerequisite for a U.S. employer to file an immigration petition for the alien employee based on EB-2 and EB-3 categories. The Labor Certification requirement is waived for a National Interest Waiver petition under EB-2 and is not required in an EB-1 petition. For information on whether you qualify for the National Interest waiver under EB-2 or EB-1 categories, please consult with our experienced immigration attorneys.
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In Labor Certifications, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Since the Labor Certification is filed on the basis of prospective employment, it does not matter whether the alien works for the sponsoring employer during the application or after it is approved. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency.

EB-1,2,3 Category


EB-1 Category

A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business or sports. There are three (3) types of EB-1 petitions:
  • Alien of Extraordinary Ability EB-1(a)
  • Outstanding Researcher/Outstanding Professor EB-1(b)
  • Managers and Executive Transferees EB-1(c)
The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement.
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EB-2 Category

A Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence reserved for members of the professions holding advanced degree or aliens of exceptional ability. Applicants must have a job offer and labor certification. However, USCIS may waive the job offer and labor certification requirements if it is in the national interest to do so.

EB-3 Category

A Third Preference Immigration Petition (EB-3) is an employment-based petition for permanent residence reserved for skilled workers, professionals and other workers including foreign nationals with less than two years of training and work experience. All applicants in EB-3 category must have a job offer and labor certification.

Family Immigration


Congress, by conferring permanent residence eligibility upon certain family-based groups, has properly emphasized the importance of family unification in American immigration law. The preference system is a method, based on categories (or “preferences”), of distributing the limited number of immigrant visa numbers available each year. 

Obtaining an immigrant visa number is an essential step in the immigration process and it means that an immigrant visa has been assigned to you. The documentation needed for a family-based petition for permanent residence is the same for immediate relative and family preference applicants. In short, the following is required:
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Immediate Relatives:
§201(b) of the Immigration and Nationality Act (”INA”) defines “immediate relatives” to include:
a) Spouses,
b) Children (under the age of 21), and
c) Parents of U.S. citizens (if the citizens are at least 21 years old).

This category is clearly reserved for immediate relatives of U.S. citizens, not permanent residents. There is no limit to the number of immediate relative visas that may be issued in this category in any given year.

Derivative Status for Spouses & Children of Family Based Immigrants


The immediate relative category normally does not confer derivative status on a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. The only exception is for children of a widow or widower of a U.S. citizen. Notwithstanding the unavailability of derivative status, some family members of an immediate relative may be entitled independent immediate relative status.For example, an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary’s marriage to the petitioner will qualify as a stepchild. 
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However, a separate visa petition must be filed for each immediate relative.

In contrast, the spouse or child of a preference immigrant accompanying or following to join him or her, is entitled to the same status and the same order of consideration as the principal immigrant. The derivative classification of such spouse or child attaches immediately upon approval of the principal alien’s classification, and requires no separate visa petition.

The Family-Based Preference Categories


Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of U.S. citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: a) spouses and minor children of permanent residents, and b) unmarried sons or daughters (but not their children) of permanent residents. A married son or daughter of the U.S. citizen falls under the third preference category. The fourth preference category permits U.S. citizens over the age of twenty-one to petition their brothers and sisters for permanent residence.

These preference categories are subject to annual visa limits. This means that there are visa backlogs in some preferences. Available visas are issued to beneficiaries in order of their priority date, which is the date that their petition for permanent residence is filed. 
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Preference categories for relatives of permanent residents have longer backlogs than preference categories for relatives of U.S. citizens. Also, India, Mexico and the Philippines have a higher demand for immigrant visas and are subject to country-specific annual limits. Country of birth is relevant rather than citizenship. Therefore, Canadians originally born in one of these countries will be placed on the longer country-specific waiting lists.

Priority dates do not necessarily progress in real time. For example, although the backlog for the family-based fourth preference may be 10 years, the actual wait is far longer. The rate of progression for priority dates often varies. In fact, as the end of each fiscal year approaches (September 30th), it is not unusual to see a retrogression in priority date. This is done to keep visa issuances within the annual numerical limitation.

Consular Processing of Immigrants

Information


Immigrant visa processing at a U.S. Consulate abroad is one of the two methods of acquiring lawful permanent residence by an alien. The alternative method available to aliens already present in the United States is called adjustment of status (”AOS”). According to 22 CFR §42.61(a), an alien applying for an immigrant visa shall make application at the consular post that has jurisdiction over his or her place of residence.

In certain situations, the alien may be permitted to process with another consular office. However, such situations usually involve hardship. 9 FAM §42.61 N2.2-3 provides the following guidance regarding hardship:

a) Hardship would not usually be considered to exist when an alien does not wish to return to the place of last foreign residence only because of inconvenience or expense.

b) A brief, temporary absence from work would not generally be considered a hardship.

c) Inability of an alien to travel long distances because of physical infirmity or advanced age would be considered to entail hardship.

d) The presence of war, widespread civil disturbance, revolution, or other similar phenomena in an alien’s country of last foreign residence would be evidence that hardship could result if the alien were required to return to that country.
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The timing of an immigrant visa depends on the availability of a visa number. Although immediate relatives and certain special immigrants are not subject to numerical limits, all other visa applicants are so limited.

As a result of these numerical limitations, visa backlogs exist in certain preference categories. The priority dates of cases currently being processed in each category appears in the DOS Visa Bulletin.

Available visa numbers are allocated within each preference based on each alien’s priority date. In family-based cases (I-130) and employment-based preference categories (I-140) where no individual labor certification needs to be filed, the alien’s priority date will be the date that the approved preference petition was filed and received by USCIS. Where an individual labor certification must first be filed, its date of filing and acceptance by the Department of Labor is considered the alien’s priority date. Once a visa application has been properly completed and executed before a consular officer, a visa must be either issued or denied. Where an alien is ineligible under a ground of inadmissibility for which a waiver is available, he or she will need to apply for an immigrant waiver before an immigrant visa can be issued. Immigrant waivers are different from non-immigrant waivers granted under INA §212(d)(3).

Requirements for Consular Processing


To be eligible to receive an immigrant visa through consular processing, you must prove that:

1) You satisfy all the admissibility criteria to enter the U.S. as an immigrant
2) You have an approved immigration petition
3) You plan to engage in the activities that are consistent with your immigrant visa category
4) Your immigration petition’s priority date is current

The following are considerations when an individual may wish to avoid consular processing:
  • Immigration history of having changed status from B-2 to F-1 or H
  • Employment-based labor certification cases where the beneficiary has insufficient English language abilities for the job. – employment-based labor certification cases.
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  • Must be prepared to discuss job and qualifications. Expect “pop quizzes” about the job, especially for computer industry-based jobs.
  • 3 and 10 year bars: if individual has been unlawfully present in the U.S. for over 180/365 days, may be subject to the 3 or 10 year bar. If unsure, should get an advisory opinion in advance.
  • Multinational executives if prior foreign employer and U.S. employer no longer have same qualifying affiliation or have ceased doing business.
  • Applicants relying on “green card portability” of INA section 204(j) to change employers before completion of LPR process.
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