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Law Summaries and Articles

What to Expect at the Marriage Based Green Card Interview

rings and greencard

This will give you a general idea what to expect at the interview. Please remember, however, that each interview is different.

General

First, at the outset, it should be understood that USCIS interviewers have a very hard, and sometimes tedious or boring job. Many of them are very good at what they do. Most of them are professional, and (reasonably) polite. A handful of them may be rude or intimidating. The best way to deal with interviewers' behavior is to sit back in your chair, relax, and answer the questions as calmly as you are able. Please do not argue with the interviewer, or expect your attorney to do so.

What Documents to Bring

Typically, we advise our clients to bring the ORIGINAL and ONE COPY of:

The Petitioner's (US citizen's):

driver’s license or state i.d. showing current address
US birth certificate, US passport, or US Naturalization Certificate
certificate of marriage to the Beneficiary
divorce judgments/decrees from ex-spouses (if applicable)
past three years' federal income tax returns or tax transcripts (forms 1040 and W-2)
past two months' pay stubs

The Beneficiary's (non-US citizen's):

driver’s license or state i.d showing current address (should show same address as Petitioner)
passport, with visa
I-94
I-20s (if applicable)
divorce judgments/decrees from ex-spouses (if applicable)
Social Security card
birth certificate
employment authorization/advance parole card
certified English-translation of any foreign-language document (if applicable)

The Joint Sponsor's (if applicable):

past three years' federal income tax return or tax transcript (forms 1040 and W-2)
past two months' pay stubs
drivers license (copy only)
naturalization certificate (copy only)

Documentation of Marital Bona Fides (showing that the marriage is genuine and not a "green card marriage"):

joint account statements, showing both parties as joint account holders, for example:
- bank statements
- telephone account statements
- utility statements
- credit card statements o cable television statements, etc.
insurance policies, showing the parties as principal and/or beneficiary, for example:
- health
- life
- automobile, etc.
home documentation, showing both parties as co-tenants or co-owners, etc.
- lease
- deed
- mortgage, etc.
jointly-filed tax returns
retirement account statements
auto registrations, showing both parties as co-owners
photographs of wedding, honeymoon, vacations, etc.
affidavits from friends or family attesting to your marriage

Because this is only a list of documents that are TYPICALLY required, it is very important for you to speak with your attorney and to review the interview notice and document checklist to see exactly what will be required in your case.

Arrival and Waiting

Please plan to arrive at least 30 minutes prior to the scheduled interview time. Traffic and parking are unpredictable, and it is best to plan ahead.

To enter the federal building, you will need to go through a metal detector. You will then proceed to the information counter to show your identification. Tell the guard you are there for an immigration interview, and he/she will instruct you where to go.

Once in the interview waiting room, give your interview notice to the person behind the window or desk. You will then sit down and await your turn. Your attorney will arrive 10-15 minutes prior to the scheduled interview time.

Typically, you will be called within 30 minutes after your scheduled time, although on some occasions the wait time may be longer.

The Interview

You, your spouse, and your attorney will go with the interviewer into an office. The interview will be conducted with you and your spouse in the same room. (Couples sometimes have to go through a re-interview at a later date, in which case the spouses will be separately questioned so the interviewer can compare the answers. These "Stokes" interviews are, fortunately, not very common for couples who are in genuine marriages who have prepared reasonably well.)

You will be asked to remain standing, to raise your right hand, and to swear to tell the truth. Then the interviewer will have you sit down at one of the 2-3 chairs directly in front of the desk, and to display your identification (drivers license and passport).

The interviewer will usually begin asking you questions concerning your biographical information (date of birth, address, date of entry into the U.S., mother's/father's name, date/place of marriage, date of divorce, children, etc.). The number of possible questions is quite large, but the purpose is essentially to determine you are the person who filed the application or petition, and to get a better idea as to your eligibility.

(See our article about "red flags" that USCIS may consider indicators of fraud, for more information).

If you do not understand a question, you may ask the interviewer or your attorney for clarification You should typically not ask your spouse, however. You should also not try to answer a question that was directed to your spouse.

Attorneys are generally not allowed to participate, except to attempt to present solutions to any legal issues that may have arisen, or to advise you if you do not understand a questions.

Questions about the Marriage and Relationship

The next stage of the interview usually involves questions concerning the relationship upon which you are basing your application. For marriage cases, these questions focus on whether or not the marriage is genuine, or simply for immigration purposes. There are a virtually unlimited number of questions.

At this point, the interviewer usually asks "what documents did you bring today to prove the validity of your marriage" or words to that effect. This is your cue to hand over the originals and copies of the bank statements, bills, lease/deed, affidavits, etc. that you have been collecting for the past several months. The interviewer may tell you he/she just wants the copies, or may want to see the originals too.

Questions about the Applicant's Immigration History and Background

Normally, the last part of the interview involves questions concerning any criminal history, prior immigration violations, drug/alcohol dependency, prostitution, practice of bigamy, and the like. These must be answered completely truthfully, by "yes" or "no." The interviewer will most likely already know about any potential problem areas, and may wish to see if you will lie about them. If you do, this will give them another basis to deny your case, so be sure not to give them this excuse.

Conclusion of Interview

At the conclusion of this business, the interviewer will typically either tell you

your case is approved,
your case will be recommended for approval,
you need to submit additional documentation before a decision is made (you will be given a letter and 2-3 months to submit the missing items), or
your name check/fingerprints clearances have not yet been received from the CIA/FBI/State Department, and you need to wait longer before a decision is made.

Unless the case is approved at the interview, you may expect the final decision to be mailed to you. Depending on the cause of the delay, this could take between 2 days up to 6 months or (rarely) longer. If a decision is not made in 3 months, your attorney will submit a case status inquiry, at your request, to see what is going on.

Once the case is approved, you may simply wait for the green card to come by mail. These are taking between 2-6 weeks (as of late-Summer 2006), but processing times may vary widely.

In the mean time, you may get your passport stamped as evidence of permanent residence. To do this, you will need to make an appointment on Infopass (www.uscis.gov), and go back to the federal building with your passport and approval notice.

For More Information:

This category of visa is available to foreign nationals who have worked abroad for at least one out of the three years immediately prior to entry to the United States as a manager, executive, or specialized knowledge employee of a foreign affiliate of a U.S. company and who will be transferred to the U.S. affiliate to work in a similar position.

If someone is eligible for this category, it is probably the best employment visa to use, as the DOL is not brought into the process.

One attractive option frequently used by large companies is the "blanket L-1." This allows the transfer of foreign national managers, executives or specialized knowledge personnel via the filing of a single petition. If approved, the petition allows for an extremely expedited process for obtaining visas for such employees.

FOR MORE INFORMATION:

TN Status

Mexican and Canadian nationals in a number of specific (mostly technical) positions are potentially eligible for this category, one of the benefits of the North American Free Trade Agreement. Canadians TN visa applicants undergo much easier process -- an application is made at the border, whereby the applicant demonstrates Canadian citizenship, a job offer from a U.S. employer for one of the approved positions, proof of an un-relinquished foreign domicile in Canada, and the application fee. Mexican nationals have to comply with H-1B procedures, as explained below.

Valid for 12 months at a time, the TN visa may be renewed indefinitely by making a new application at the border or by filing an application for extension with the INS. Obtaining TN approval largely depends upon the discretion of the individual border officer. Because this is a relatively new visa category, there are not many guidelines, and success is therefore very uncertain.

For More Information:

H-1B Visas for International Professionals

Generally

The H-1B is a nonimmigrant classification that allows temporary employment in the U.S. in a "specialty occupation" or as a fashion model of distinguished merit and ability.

The foreign worker must have the equivalent of a bachelor's degree (based upon education, experience, or a combination of both), and an offer from a US employer to work in a "specialty occupation."

The government defines "specialty occupation" as a position that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

H-1B "Quota"

Currently, H-1B approvals are limited to 65,000 per year for FY2004. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.) This is called the H-1B Quota or H-1B Cap.

The H-1B Quota does not apply to H-1B renewals, and in a few other cases.

Procedure for Obtaining the H-1B Visa

The first step in obtaining an H-1B is for the employer to file a labor condition application (LCA) with the Department of Labor. Currently, LCAs are submitted online via the US Department of Labor's "iCERT Visa Portal" system. Processing time for the LCA is currently about one week.

The second step is for the employer to file Petition for Alien Worker on Form I-129, along with the certified LCA, and sufficient documentation of the foreign employee's eligibility, along with a check for the filing fees. The current processing time for H-1B I-129 varies, but averages around 4-6 months, for standard processing. The most accurate current estimate may be obtained online.

Once that I-129 is approved, if the foreign worker is currently in the U.S., the case is essentially complete -- the I-129 approval serves to change or extend the status of the foreign employee to H-1B without any further action. (This requires the a change or extension of status was requested by the employee).

However, if the foreign worker is abroad, the case proceeds to the third step. The foreign worker must apply for the H-1B visa at a US consulate abroad. Consulate procedures vary, but in many cases, the foreign employee may apply for an H-1B visa with a valid passport, the original approval notice, a copy of the petition package, and an updated employment confirmation letter. Other documentary requirements vary from consulate to consulate.

Maximum Stay in H-1B Status

Under current law, the foreign worker can be in H-1B status for a maximum period of six years at a time. After that time, he/she must remain outside the United States for one year before another H-1B petition can be approved. Certain foreign workers with Defense Department projects may remain in H-1B status for 10 years. In addition, certain foreign workers may obtain an extension of H-1B status beyond the 6-year maximum period, when:

365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an Employment-Based (EB) immigrant, or

365 days or more have passed since the filing of an EB immigrant petition.

Employment Restrictions

The H-1B worker may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B workers may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

Changes to the terms of employment (duties, hours, etc.) may affect the H-1B worker's status. Normally, a mere increase in salary will not, however.

The H-1B worker may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the worker before he or she begins working for the new employer.

Travel While in H-1B Status

H-1B workers may travel outside the U.S. and re-enter in H-1B status, provided that they have obtained an H-1B visa from a U.S. consulate abroad.

An H-1B visa allows the employee holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Processing toward Immigration While in H-1B Status

Unlike holders of many other types of status (e.g.., F-1 student status), an H-1B worker may process towards a "green card" while in H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990.

During the time that the application for green card is pending, the H-1B worker may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission to return to the U.S.

FOR MORE INFORMATION:

F-1 Visas for International Academic Students

There are two main visa categories for people coming from abroad to study in the U.S:

the F-1 category for academic students in colleges, universities, seminaries, conservatories, academic high schools, other academic institutions, and in language training; and
the M-1 category for vocational students.

This articles will discuss the F-1 category. For more information on the M-1 category, please see our article on "Visas for Vocational Students."

F-1 students' attendance at public secondary schools in the U.S. is rather restrictive. Attendance at public high schools for F-1 students is limited to 12 months, and the F-1 student must advance the cost of the education to the local school board. F-1 students are prohibited from attending public elementary schools and publicly-funded adult education programs in the U.S.

Application Procedures -- Applying for a F-1 Visa Abroad

Procedures vary depending upon consulate and change from time to time, so a good source for current information is the consulate where you will be applying for your student visa. The information below will give you a general picture of the process.

In general, students seeking the F-1 visa while abroad must first must apply to study at a USCIS-approved school in the United States.

Not all schools are authorized to accept foreign students, so it is important for applicants to verify this at the outset.

Once the student is accepted, the school will issue to the student a USCIS Form I-20 A-B/ID (Certificate of Eligibility for Nonimmigrant (F-1) Student Status - for Academic and Language Students).

The student must then apply for an F-1 visa at an appropriate U.S. consulate. The student must fill out a non-immigrant visa application form (DS-160), and submit it along with the I-20, and evidence of sufficient financial resources and non-immigrant intent.

If the consulate is satisfied with applicant's eligibility, an F-1 visa will be issued to the student. Dependent family members may also be eligible to receive F-2 visas to accompany the student.

Upon admission into the U.S., the student will be issued a Form I-94 (Arrival-Departure Record) that will include the admission number to the United States. An Immigration inspector will write this admission number on the student's I-20, and will retain a portion of the I-20 (pages 1 and 2) to send to the school as a record of legal admission to the United States. The student must keep the other portion of the I-20 (pages 3 and 4), as evidence of status.

Application Procedures -- Applying for a Change of Status to F-1 While in the U.S.

The first part of the procedure is the same as for those applying for a visa abroad (see above).

However, the difference arises, in that, instead of applying for a visa, the student will apply for a change of status using USCIS Form I-539. Accompanying the I-539 must be the I-20, and evidence of sufficient financial resources and non-immigrant intent.

It is important to note that, if you have been admitted as a B-1 (Temporary Visitor for Business) or B-2 (Temporary Visitor for Pleasure) visa holder, you may not begin your program studies until your application for these studies is approved.

Transferring Schools

Full-time F-1 students who are in good academic standing, may generally transfer schools.

The student must notify his/her current school of an intent to transfer, and request the new school to issue a new I-20. The student must complete his/her portion of the I-20 and give it to the new school's designated school official (DSO) within 15 days of transferring. The DSO should give the student the last two pages, known as Form I-20 ID, and forward a copy of the first two pages, known as Form I-20 A-B, to the USCIS and the old school.

Duration of Status

The F-1 student, and any dependent family members in F-2 status, may stay in the U.S. for as long as the student is enrolled as a full-time student at the school designated in the current I-20, and making normal progress toward completing your course of study. This is termed "duration of status," or "d/s".

The F-1 student also may request to be allowed to stay in the U.S. up to twelve additional months beyond the completion of studies to pursue practical training. This is called Optional Practical training or "OPT."

At the end of studies or practical training, the student has an additional "grace period" of sixty days to prepare to leave the country.