INS Approves Substitutions of Immigrant Petitions for the Same Greencard Application

The process for obtaining a greencard normally involves several steps. First, the individual must establish eligibility for the greencard through an Immigrant Petition or other document. This can be done in a number of ways including an application or petition for registry, asylum, family, employment, amnesty, etc. Second, the individual must wait for a visa number to become available based on the priority date attached to the Immigrant Petition. Depending on the basis for eligibility and backlogs, a visa number may be immediately available, or may involve a wait of twenty years or more. Third, the person files an application for a greencard.

What happens in a situation where an alien files for a greencard based on employment, and then the employer goes out of business before the alien has been issued a greencard? Traditionally, the employment-based immigrant petition would be revoked, and the greencard application denied. The same result would occur in a situation where an alien is petitioned by a U.S. citizen brother. Assume the U.S. citizen passes away after the alien files a greencard application. The alien’s greencard application could then be denied, short of extenuating humanitarian considerations. The alien would then have to begin the process all over again by finding another avenue to establish eligibility for and file another greencard application. This situation can result in long delays and uncertainty.

There are many advantages to the filing of a greencard application in addition to ultimately receiving of a greencard:

(1) Tolling of unlawful presence

(2) Permitting people to remain in the U.S. without triggering the 3- or 10- year bars for unlawful presence accrued before filing;

(3) Applying for a work authorization document;

(4) The ability to travel in and out of the U.S. with an Advance Parole.

A denial of a greencard application results in the disappearance of these benefits.

On May 9, 2000, the INS issued a memo to address issues related to greencard issues. Specifically, the memo answers the question of whether a second family- or employment-based petition filed after the submission of a greencard application. In other words, can the same greencard application be used to support a new petition/application that was approved after the greencard application was filed? The memo answers this question affirmatively. Where an individual has a newly approved immigrant petition, the individual may then transfer the greencard application to that new petition. This is true even if the priority date of the subsequent petition does not become current after the date that the greencard application was originally filed.

For example, the alien spouse of a Permanent Resident files a greencard application based upon a F-2A family preference. While the application is pending with the INS, the alien’s adult U.S. citizen son subsequently files a petition for his father as an immediate relative and receives an approval. The greencard application through the spouse can be transferred to the visa petition for the son.

There are also some restrictions in the memo. The right to transfer of greencard applications to the new immigrant petition is not absolute. Only an experienced attorney with a specialization in immigration can assist you to determine which course to pursue. Attorneys who practice everything from bankruptcy to family law, and from civil litigation to tax law, lack the experience and knowledge to properly advise you on sophisticated greencard issues. Trust your case with a firm whose practice is devoted exclusively to U.S. immigration law.