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 here are four main ways to obtain U.S. permanent resident status. The easiest is through a close family relationship, usually a U.S. citizen or permanent resident. Employment and investment-based sponsorship is another. The third way is through refugee, asylum, or suspension of deportation. Finally, the Diversity Visa (DV) lottery provides an opportunity for almost all.
Family-Sponsored Immigrants
U.S. immigration law was designed to encourage family reunification. Most immigrant visas are issued to relatives of U.S. citizens or permanent residents.
Immediate relatives of U.S. citizens are exempt from quotas and can generally process their applications quickly. Immediate relatives include spouses and minor children of U.S. citizens and parents of U.S. citizens who are over 21 years of age. Spouses of U.S. citizens are granted a two-year conditional green card, unless the marriage has been in existence for at least two years prior to the visa interview. Conditional permanent residents must apply to remove the conditional nature of the visa during the 90-day window prior to expiration.
There are also five family-sponsored categories which are subject to numerical limits which often create long waiting lines.
The first preference is for unmarried sons and daughters of U.S. citizens regardless of age. There is a waiting line of several years for first preference immigrants.
The second preference includes two sub-categories: one for spouses and minor children of permanent residents; and the other for unmarried adult sons and daughters of permanent residents. The first sub-category presently has a waiting line in excess of five years. There are no benefits granted to applicants waiting for a visa to become available. Because of the very limited number of visas allocated, and the large number of applicants, adult unmarried sons and daughters of permanent residents have to wait even longer to obtain permanent resident status. Caution should be exercised before filing a second preference petition for unmarried adult sons and daughters. They will generally not be able to legally immigrate for at least seven years, and if out of status during this period, new laws could bar their entry to the U.S.
The third preference category is for married sons and daughters of U.S. citizens. This category has a waiting line in excess of three years, and may get even longer.
The fourth preference is for brothers and sisters of U.S. citizens who are 21 years of age or over. This category is backlogged over 10 years and is moving slowly. It is possible that it could take anywhere from 15 to 20 years to immigrate through a citizen sibling.
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Employment/Investment-Based Immigrants
Employment-based immigrant categories provide a variety of options to potential immigrants. There are three main categories, each with a 40,000 annual visa allocation.
To obtain an employment immigrant visa, it is often necessary to obtain a difficult labor certification. This requires the U.S. Department of Labor to state that there are no qualified U.S. workers for the job. For this reason, it is desirable to qualify under a labor certification exempt category. All first, fourth and fifth preference immigrants are exempt, while some second and third preference immigrants are exempt.
The first preference immigrant category is most desirable because it
can be processed quickly. There are three groups: A) persons with extraordinary abilities in the sciences, art, education, business or athletics; B) outstanding professors and researchers; and, C) multinational executives or managers.
A) Persons of extraordinary ability in the sciences, art, education, business or athletics, do not require job offers and can process quickly. This category is available to that small percentage of applicants who have risen to the top of their field.
B) More generous standards are available for outstanding professors and researchers with three years of teaching or research experience. A job offer for a permanent position from a U.S. research or teaching institution is required. Since no certification is required from the Department of Labor, these cases can be processed quickly.
C) Managers and Executives of companies with U.S. affiliates are eligible to obtain permanent residence under the first preference category if their services are required permanently by the U.S. company. They must have been employed by the overseas affiliate company for at least one of the three years immediately preceding their transfer to the United States, in a managerial or executive capacity. The U.S. company must also have been in existence for at least one year.
The second preference visa category is for professionals holding an advanced degree (at least a Master's degree) or a Bachelor's degree plus 5 years of progressively senior work experience. Also, the job must require such qualifications. It is possible for individuals with exceptional abilities in the sciences, arts, or business to qualify under this category. This category usually requires a Department of Labor certification, although it is possible to obtain a waiver, if it can be shown that the employment of the applicant will be in the "national interest", a broadly defined term.
The third preference immigrant visa category usually requires a labor certification except for registered nurses and physical therapists. It is divided into three separate categories: A) one for professionals with Bachelor's degrees; B) another for individuals performing a job which requires at least two years of education, experience or training; and C) one for other workers, including individuals performing jobs which require less than two years of education, training or experience. Persons in this last category are only eligible to compete for 10,000 visas. This has resulted in long waiting periods -
currently in excess of seven years. There is no waiting line for most other employment third preference immigrants but labor certifications routinely take over two years to process.
The fourth preference category includes the generous religious worker
category. These "special immigrants" have a 10,000 annual visa limit. Ordained ministers, as well as other religious workers whose services are required by non-profit religious, or other qualifying, organizations can benefit. This includes ministers, religious professionals, and a broad range of religious workers. These two last groups
will only be eligible until October 1, 2000.
The fifth preference investor category is reserved for immigrants who make large
investments. Ten thousand visas are allocated annually to individuals who invest $1 million and create at least ten new jobs. The law permits the amount to be reduced to $500,000 if the business is located in a rural area, or in an urban area with high unemployment. Many desirable areas have been designated as high unemployment areas which qualify investors to obtain immigrant visas with a $500,000 investment, provided they create 10 jobs. The requirement of ten full-time jobs, excluding independent contractors and immediate family members - is usually the obstacle. It is possible to qualify with investments in troubled businesses which lost at least 20% annually for two successive years prior to filing. Investments in troubled businesses sometimes allow an applicant to show that the ten jobs have been saved rather than created. The immigrant investor category provides for a conditional green card. Twenty-one months after approval, a new petition must be filed to remove the conditional nature of the visa.
The Immigrant Investor Pilot Program allows applicants to make qualifying investments in commercial enterprises in designated regional centers. The Pilot Program does not require the investor to directly hire ten qualified workers. Instead, the qualifying employees may include individuals who provide services or
a job that has been created indirectly by the investment in the new commercial enterprise.
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Refugee and Asylum Benefits
The United States allocates visas to refugees who can prove a well-founded fear of persecution based on political or religious beliefs, or membership in particular social groupings. Applicants already in the United States may also apply for political asylum if they can show a well-founded fear of persecution should they return home. Recent changes require applications to be filed within one year of arrival unless they have been changed country conditions or "extraordinary circumstances".
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Diversity Visas (DV) Lottery
Almost anyone who has completed high school is eligible to enter in this annual program which issues 50,000 "green cards" each year. Once selected in the "drawing", winners must act quickly to be among the first to qualify for their visas.
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Suspension of Deportation / Cancellation of Removal
Suspension of deportation has been replaced with a new form of relief called "cancellation of removal". Persons with ten years of continuous physical presence and good moral character who can show exceptional and extremely unusual hardship to a qualifying U.S. citizen or permanent resident spouse, parent or child - may be eligible to be obtain permanent residence. The process is not easy and requires a hearing before an Immigration Judge.
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Conclusion
Many family-based immigrants including spouses and children of permanent residents, or married children of U.S. citizens - must wait many years before being able to obtain immigrant visas. It is often better to obtain employment-based immigrant visas, especially for multinational managers and individuals with extraordinary abilities. These applicants can often process their green cards quickly. There are many immigrant visa categories for applicants, even those with basic skills. To maximize opportunities, it is worth exploring your eligibility for both immigrant and nonimmigrant visas by having a thorough review of your case.
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