The Permanent Resident Timeline Tightrope
The University of Texas School of Law
36th Annual Conference on Immigration and Nationality Law
Austin, Texas
By: Kathleen Campbell Walker
November 8, 2012
THE IMMIGRANT PROCESS
Permanent Residence
Employment Based
Family Based
Petition Process
Wait for
PD
Adjustment of Status
In the U.S.
Consular Process
Family Based Preferences
 First – Unmarried Sons and Daughters of Citizens:
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23,400 a year.
Second – Spouses and Children, and Unmarried Sons
and Daughters of Permanent Residents: 114,200
A. Spouses and Children: 77% of the overall second
preference limitation, of which 75% are exempt from the
per country limit;
B. Unmarried Sons and Daughters (21 years of age or
older): 23% of the overall second preference limitation.
Third – Married Sons and Daughters of Citizens: 23,400.
Fourth – Brothers and Sisters of Adult Citizens: 65,000.
Employment Based Preferences
 First - (EB-1, priority workers); 28.6% of the worldwide employment-
based preference level, plus any numbers not required for fourth and
fifth preferences.
 Second - (EB-2, worker with advanced degrees or exceptional ability);
28.6% of the worldwide employment-based preference level, plus any
numbers not required by first preference.
 Third Preference (EB-3, professionals, skilled workers and other
workers); 28.6% of the worldwide employment-based preference level,
plus any numbers not required by first and second preferences, not
more than 10,000 of which to “Other Workers.”
 Fourth - (EB-4, special workers, such as religious workers); 7.1% of
the worldwide level; and
 Fifth - (EB-5, employment creation or investor visas). 7.1% of the
worldwide level, not less than 3,000 of which reserved for investors in a
targeted rural or high-unemployment area and 3,000 set aside for
investors in regional centers by §610 of Pub. L. No. 102-395
Reading the Visa Bulletin
On the charts below, the listing of a date for any
class indicates that the class is oversubscribed.
 “C” means current, i.e., numbers are available
for all qualified applicants.
 “U” means unavailable, i.e., no numbers are
available.
(NOTE: Numbers are available only for applicants
whose priority date is earlier than the cut-off dates
listed.)
FAMILY BASED WAIT TIMES
DEPARTMENT OF STATE –VISA BULLETIN – www.travelstate.gov
November 2012
EMPLOYMENT BASED WAIT TIMES
DEPARTMENT OF STATE –VISA BULLETIN – www.travel.state.gov
November 2012
NFAP Report – EB Wait Times
NFAP Report – FB Wait Times
Intake Questions
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 9.
 10.
Where is the applicant?
How did the applicant enter the U.S.?
Is the applicant in the U.S. pursuant to an authorized period of
admission?
Is the applicant a U.S. citizen (USC)? Is the petitioner a USC?
Is the applicant already the beneficiary of an immigrant visa
petition and/or labor certification?
Has the applicant ever been a U.S. legal permanent resident?
What happened in any prior application for permanent residence?
Is the applicant subject to any grounds of removability or
inadmissibility?
What is the applicant’s country of chargeability for visa purposes?
Is cross-chargeability an option?
Has the applicant ever violated the terms of his or her stay in
the U.S.?
Has the applicant ever been refused admission to the U.S.?
Intake Questions – cont’d
 11.
 12.
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 14.
 15.
 16.
 17.
 18.
 19.
 20.
 21.
Review all of the DS-260 and I-485 questions with the applicant
in advance.
Does the applicant qualify for any waivers?
Has the applicant renounced U.S. citizenship?
Has the applicant paid required U.S. taxes, if applicable?
Has the applicant registered for selective service, if applicable?
Does the applicant have any criminal history? Do you have the
records of the arrest and the statutory information regarding
the alleged crime?
Triple check the issue of the application of unlawful presence
bars under INA §212(a)(9).
Did the applicant ever have A, G, or E nonimmigrant status
requiring the filing of an I-508 Waiver of Rights, Privileges and
Immunities?
Is the applicant subject to the two year foreign residency
requirement of INA §212(e)?
Is the applicant eligible for a faster path via employment or
family based alternatives? See 8 CFR §245.7.
Address Potential Conflict Concerns.
INA § 245(a)
The status of an alien who was inspected and
admitted or paroled into the United States (or a
VAWA self-petitioner) can be adjusted by the
Attorney General if:
• (1) the alien makes an application for
adjustment,
• (2) the alien is eligible to receive an immigrant
visa and is admissible to the United States for
permanent residence, and
• (3) an immigrant visa is immediately available
Pardonable Sins and IRs
Adjustment – INA § 245(a) and (c)
 Immediate Relative Defined INA §201(b) –
children, spouses, and parents of USCs
(parents must be 21)
 Not applied to IRs under 8 CFR §245.1(b)
– work without authorization
-- overstay
-- not in lawful status
-- violated status
INA § 245(i)
An alien physically present in the United States who
entered the United States without inspection can
adjust their status if they are the beneficiary of:
• (i) a petition for classification under section
204 that was filed with the Attorney General on
or before April 30, 2001; or
• (ii) an application for labor certification under
section 212(a)(5)(A) that was filed pursuant to
the regulations of the Secretary of Labor on or
before such date
Fact Pattern
Brenda is a citizen of Brazil who entered the U.S. using a B-1/B-2 visa.
During her visit to the U.S. she and her U.S. citizen boyfriend, Peter,
decided that they no longer wanted to be apart and they got married.
Once married, Peter may file Form I-130 on Brenda’s behalf to request
that she be classified as an immediate relative (in this case, wife) of a U.S.
citizen.
Brenda is eligible for adjustment of status because she is in the U.S.
pursuant to inspection and admission and is not subject to any grounds of
inadmissibility or deportability.
Although Brenda worked without authorization while in the U.S. in B-2
status, working without authorization does not make her ineligible for
adjustment of status because she is an immediate relative of a U.S.
citizen.
 Therefore, Brenda may simultaneously file Form I-485, the application to
adjust her status to that of a lawful permanent resident. She should
become a conditional lawful permanent resident (because she and Peter
will have been married less than two years at the time her application for
adjustment of status is approved) within 5-6 months, depending on the
processing time of the USCIS office with jurisdiction over Peter and
Brenda’s residence.
The INA §214(b) Poltergeist at Entry
Client is a U.S. citizen is a university professor, who
wishes to immigrate his Mexican citizen parents to the
United States as soon as possible due to the violence
in Ciudad Juarez where they have lived for over 50
years. Client has heard that if his parents possess
laser visas (i.e., B-1/B-2/BCC), they can apply for
admission to the United States using their laser visa
for no more than a 30-day visit within a 25-mile
perimeter of the border (i.e., Texas not Arizona) and
then apply for adjustment of status within the 30 days
based on their U.S. citizen son’s I-130 petition. 8
CFR §235.1(h)(1) They ask if there are any risks to
this strategy that they heard about recently from a
friend, who successfully used it.
The INA §214(b) Poltergeist at Entry –
Issues
INA §214(b)—This section of the INA provides that all applicants for
admission to the United States are presumed to be immigrants until they
establish to the satisfaction of the consular officer, at the time of
application for a visa, and the immigration officers, at the time of
application for admission, that he or she is entitled to a nonimmigrant
status under INA §101(a)(15). The foreign residence requirement is
fairly consistent among nonimmigrant visa categories. The INA,
however, has a specific exception to this requirement for H-1B, L-1, and
O-1 nonimmigrants. [ INA §214(h) (codifying the concept known as “dual
intent”); INA §214(b), (describing immigrant presumption but providing
an exception for aliens admissible in the H and L categories); INA
§101(a)(15)(O)(i), 8 USC §1101(a)(15)(O)(i) (defining alien of
extraordinary ability, but including no requirement that the alien’s stay be
temporary)]
 Expedited Removal—Under INA §235(b)(1)(A)(i), a foreign national who
is arriving in the United States and who is determined to be inadmissible
under INA §212(a)(6)(C) or §212(a)(7) (except an alien for whom
documentary requirements are waived under 8 CFR §211.1(b)(3) or
§212.1) shall be ordered removed from the United States.

The INA §214(b) Poltergeist at Entry –
Issues
INA §274(a)—Any person who encourages or induces an alien to come
to, enter, or reside in the United States, knowing or in reckless disregard
of the fact that such coming to, entry, or residence is or will be in
violation of law shall be subject to a fine or imprisonment for 10 years or
both for each alien if done for commercial advantage or private financial
gain. [INA §274(a)(1)(B)(i). If not done for commercial advantage or
private financial gain, then the prison term is five years. ]
 Overstay and INA §222(g)—INA §222(g)(1) states that if a foreign
national is admitted to the United States based on a nonimmigrant visa
and then remains in the United States beyond the authorized period of
stay, the visa is voided at the conclusion of the period of stay
authorized. So, what happens to a laser visa holder with no I-94 on the
31st day? Is there really a period of authorized stay as with a typical I94 documented admission triggering INA §222(g) consequences of visa
voidance or is the period of authorized stay in this instance more like a
duration of status (D/S) admission granted in F-1 student visa cases?
Take a look at the April 1, 1999, letter written by then Acting Assistant
Commissioner, Michael J. Hrinyak, indicating that those entering on a
laser visa without an I-94, should be treated the same as a D/S
admission.

The INA §214(b) Poltergeist at Entry –
Issues
Misrepresentation/Fraud at Entry—An alien who engages in fraud or willful
misrepresentation of a material fact in order to procure a visa is inadmissible. [:
INA §212(a)(6)(C).] The Department of State (DOS) instructs in the Foreign
Affairs Manual that a misrepresentation requires “an affirmative act,” rather than
“the failure to volunteer information.” [9 FAM §40.63, N4–4.2. Cf. INA §274C(f),
which notes that for determining document fraud penalties, a falsely made
document includes one that “fails to state a fact which is material to the purposes
for which it was submitted.” Under N4.2, “Silence or the failure to volunteer
information does not in itself constitute a misrepresentation for the purposes of
INA §212(a)(6)(C)(i).”] To determine whether an alien has made a
misrepresentation to obtain a visa, DOS instructs consular officers to apply the
“30-/60–day rule.” [9 FAM §40.63, N4.7.] This rule provides that if within 30 days
of B-2 visa issuance or entry, the alien:
§
Actively seeks unauthorized employment and, subsequently,
becomes engaged in such employment;
§
Enrolls in a program of academic study without the benefit of the
appropriate change of status;
§
Marries and takes up permanent residence; or
§
Undertakes any other activity for which a change of status or an
adjustment of status would be required, without the benefit of such a
change or adjustment;
then the alien is presumed to have misrepresented his or her intent at entry. [ 9
FAM §40.63, N4.72.] After 60 days, DOS does not consider the alien’s activities
to constitute the basis for a finding of ineligibility. [ 9 FAM §40.63, N4.7-3.]
What to do?
Is the attorney subject to potential criminal penalty under INA
§274A described above?
 What if the attorney suggests that the parents enter without an I94 admission and just wait until the 61st day to file for
adjustment of status? INA §245(c)(2) provides that for immediate
relatives, unlike preference cases for immigrant status, working
without authorization or being in unlawful status or violating
nonimmigrant status is not a bar to adjustment. How can the
attorney explain the decision to file on the 61st or the 90th day?
Even with such a filing date, intent at entry as well as the
circumstances for admission are still relevant queries. Review
Matter of Cavazos, 17 I & N Dec. 215 (1980)
From “How toWalk the Ethical Line – Being Less Stressed Out” by Cyrus D. Mehta, Sam
Myers, and Kathleen CampbellWalker - presented at AILA Annual Conference 2011

Presenter
Kathleen Campbell Walker
Shareholder
Cox Smith Matthews Incorporated
221 N. Kansas, Suite 2000
El Paso, Texas 79901
Tel: 915-541-9360
Fax: 915-541-9399
kwalker@coxsmith.com