The person who files the petition is known as the petitioner (or sponsor) and must usually be the US citizen or green card holder relative or a US employer. Some applicants, such as priority workers, investors, certain special immigrants and diversity immigrants, can petition on their own behalf.
Family-sponsored immigrants, who believe they’re entitled to immigrant status based on their relationship to a US citizen or resident alien, must ask their relative to file a Petition for Alien Relative (form I-130) with their nearest USCIS service centre in the US. In certain cases where the sponsor is resident abroad, petitions can be filed at a US embassy or consulate, but in those cases, the sponsor must be in the process of moving back to the US themselves with the alien being sponsored.
Sponsors must execute an Affidavit of Support (I-864) in which the sponsor agrees to support the intended immigrant and any dependants and to reimburse any government agency or private entity that provides the sponsored immigrant with federal, state or local public benefits. The sponsor must submit copies of their last three years’ federal income tax returns, so make sure the relative sponsoring you has been filing! The obligation to support the alien relative continues until the immigrant becomes a US citizen, leaves the US permanently or dies.
Employment based immigrants
Employment-based immigrants, who believe that they’re entitled to immigrant status based on proposed employment in the US, require an approved Immigrant Petition for Alien Worker (form I-140) from the USCIS. Some people who qualify as priority workers may petition on their own behalf with the USCIS, while most must have their prospective employer file the petition. Before filing, sponsors of applicants for classification as members of the professions, professionals, skilled and unskilled workers (second and third preference employment-based immigrants), must obtain ‘labour certification’ from the US Department of Labor, a protracted process requiring the employer to prove that there are no qualified American workers available to take the job, e.g. by advertising the job vacancy in newspapers and at his offices for a certain period.
Special immigrants, who qualify for immigration under a special category, must file a petition consisting of various documents, depending on the category. A US embassy or consulate or USCIS service centre will advise you what documents are required. Investors must file an Immigrant Petition by Alien Entrepreneur (form I-526) with the USCIS.
If possible, you or your sponsor should file a petition in person, to be sure that your filing is recorded correctly. When you file in person, any obvious errors or omissions are pointed out on the spot, so you have the opportunity to correct them immediately or resubmit at a later date. When you file by post and errors or omissions are discovered, all forms, papers and documents are returned with a form explaining why, and the application is delayed.
Once a petition has been approved, the applicant is given a ‘priority date’ (or visa number). When this date is reached, the prospective immigrant is invited to submit his application for a visa to enter the US. In certain heavily oversubscribed categories, there’s a waiting period of up to ten years before a priority date is reached.
The filing fee for a petition must be paid with a dollar cashier’s cheque, dollar money order, international bank draft or in cash when filing a petition in person. Be wary of any prospective employer who asks you to reimburse him for the sponsor filing fees, especially before your arrival in the US. If the petition filed on your behalf is approved, the USCIS forwards it to the consular section of your local US embassy or consulate (if you filed abroad), who informs you of the subsequent steps to be taken to apply for the appropriate visa. If your petition is denied, the USCIS notifies you directly.
This article is an extract from Living and Working in America. Click here to get a copy now.