Obtaining Permanent Residence
By: Samuel N. Omwenga, Esq.
A question is often asked, “what can I do to get a ‘green card?’” This article attempts to summarize the different ways one can obtain the coveted “green card,” a status that often leads to citizenship for those desiring more than just the privilege of working and remaining permanently in the United States. Before discussing the various ways one can become a United States permanent resident, it is worth noting that the modern trend in the U.S. has been severely limiting not only eligibility to permanent resident status, but the privileges of that status as well. For example, the title “permanent resident” is itself misleading, especially given the passage of the 1996 law because there is nothing “permanent” about a permanent resident who gets in trouble with the law in a serious way or is found to be using his or her green card merely as a convenient visa to travel back into the US with after long absences.
Be as it may be, however, the green card is a must have for many but before a foreign national can apply for admission into the U.S. as an immigrant (if outside the U.S.) or to have their status adjusted to permanent residence (if inside the U.S.), he/she must first be approved as eligible under one of the authorized immigrant categories established by Congress. The immigrant categories are divided below into four groups. It should be noted that most of the immigrant categories are subject to annual numerical limitations established by statute and it is common for significant eligibility backlogs to develop when there are more eligible applicants in a given year than there are visas available. No exceptions are made for these annual limits; once the number is reached, that’s it for the fiscal year (October 1 through September 31).
Eligibility within an immigrant category is usually sought by a petitioner (e.g., a family member or prospective employer) who petitions the Immigration & Naturalization Service on behalf of a beneficiary (the prospective immigrant). Once the petition is approved and there is a number immediately available within the particular immigrant category, the foreign national may apply for permanent resident status. In some instances, the application for permanent residence may be made with the INS (Department of Justice) if the applicant is within the U.S. Otherwise, the application is filed overseas at the U.S. Consulate (Department of State) having jurisdiction over the applicant's place of residence.
A. Permanent Residence Based Upon a Qualifying Family Relationship
1. Immediate Relatives
This family?sponsored category includes the spouse and minor, unmarried child of United States citizen and the parents of United States citizens who are over the age of 21. To determine eligibility based on a familial relationship, it is advised to consult an immigration lawyer who in turn must consider various bodies of relevant law to determine relationships, including such issues as who is a "child," what is marriage, divorce, etc. These terms, as is the case with a number of legal “terms of art,” have a meaning far different from that ordinary associated with them and in many cases mean different things even within the immigration law itself. Once a legal relationship is established that satisfies the eligibility requirements for permanent immigration, then one may be as well be on the way to becoming a permanent resident but eligibility alone is no guarantee that one becomes a permanent resident.
A typical relationship through which many obtain permanent resident is being married to a U.S. citizens. Spouses of U.S. citizens are granted conditional permanent residence if the marriage is less than two years old but adjustment applications under this category are not subject to the annual per-country quota or annual limits. Two years after obtaining conditional residence, the couple must apply to have the conditional basis of their resident status removed or conditional resident status is automatically revoked. However, it is possible to get a waiver of the joint appearance to remove the condition, even in cases where the spouses have divorced, separated or are otherwise no longer together.
2. Family?Sponsored Preferences
All family?sponsored immigrant categories other than immediate relatives of U.S. citizens are structured in a preference system which allocates an annual number of immigrant visas based upon a preference hierarchy among the categories and upon per?country maximum quotas.
a. First Preference: Unmarried adult sons and daughters of U.S. citizens.
b. Second Preference: This category is divided into two subcategories: Part 2A is comprised of spouses and minor children of permanent residents. Part 2B consists of unmarried adult sons and daughters of permanent residents.
c. Third Preference: Married sons and daughters of U.S. citizens.
d. Fourth Preference: Brothers and sisters of adult U.S. citizens.
There are different waiting times that get worse the higher up the list you go, ranging from one year for first preference to more than 30 years for those in the last preference category.
B. Permanent Residence Based Upon Employment
There are six immigrant categories available through a qualifying business or employment relationship. As in the immigrant categories based upon family sponsorship, employment?based categories are subject to annual numerical limits. The descriptions below are not intended to be exhaustive and do not detail all of the specific requirements for a given category.
1. Priority Workers (EB?1)
This is the top priority worker for first preference, employment based. In this category, unlike other employment based categories, there is no prerequisite of a Department of Labor finding that no U.S. workers are available or qualified to do the job offered (known as the Alien Labor Certification). There are three subsets in this category:
a. Aliens of extraordinary ability in the sciences, arts, education, business, or athletics
Federal regulations define extraordinary ability as a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. An extraordinary ability petition may be filed by a prospective employer, but may also be filed by the alien herself. In addition, unlike most employment?based classifications, approval requires no specific offer of employment.
b. Outstanding professors or researchers
In general, this category is available to professors and researchers with a demonstrated record of excellence in the field and who have been offered a tenure?track position with a U.S. institution of higher education or a similar position at a research institution or established research division of a corporation.
c. Certain multinational executives and managers
This category is intended to facilitate the transfer of key managerial and executive personnel within a multinational corporation. The classification is generally available to an individual who has been employed abroad in managerial or executive capacity by a branch, subsidiary, affiliate or parent of a U.S. company for at least one year and who is being transferred to the U.S. company.
2. Professionals with Advanced Degrees and Aliens of Exceptional Ability (EB-2)
The second preference employment based category normally requires the Alien Labor Certification. This category generally requires either a minimum of a masters degree or equivalent or a finding of "exceptional" which is to be distinguished from extraordinary (although not always easily.) A waiver of the required offer of employment and of foreign national labor certification can be sought by establishing that the beneficiary's presence in the United States is in the national interest. What passes as being “in the national interest” is beyond the scope of this article but a good immigration lawyer can break it down for you.
a. Professionals with Advanced Degrees
Qualification in this category requires demonstration that the beneficiary holds a minimum of a masters degree in the field and that the position offered to the beneficiary requires an individual with an advanced degree. Equivalency may be established with a bachelor's degree and five years of progressively responsible work experience in the field.
b. Aliens of Exceptional Ability
This classification is available to individuals demonstrating exceptional ability in the sciences, arts or business. Federal regulations define exceptional ability as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
3. Professionals and Skilled Workers (EB?3)
All third preference, employment?based applications must include an Alien Labor Certification. The category permits immigration to professionals with a Bachelor's degree and skilled workers in occupations which require at least two years of experience, training and/or education.
4. Other Workers
This group includes unskilled workers in occupations that require less than two years of, experience, training and/or education. It is technically a part of the EB?3 category, but since it is subject to separate, severe limitations on annual availability. There is usually a significant backlog in this category. This classification also requires Alien Labor Certification.
5. Special Immigrant Religious Workers
This category is available to certain qualified ministers and religious workers coming to the United States to practice their vocation. Alien Labor Certification is not required in this category.
An alien investing a specified amount of capital at?risk in a commercial enterprise may be eligible in this category. The enterprise must generate full?time employment for U.S. workers and permanent residence is granted conditionally. After two years, the investor must demonstrate that the investment was established and in continuous operation during the two year period.
7. Alien Labor Certification
Alien Labor Certification is a determination by the U.S. Department of Labor that there are no qualified U.S. workers available for a specified position. Alien Labor Certification is a daunting and often very exhausting process which can sometimes take several years to complete. It requires proof that the employer has engaged in active recruitment to fill the position with an American worker and that none of the applicants were minimally qualified to perform in the position. A labor certification is required in employment?based immigrant petition for beneficiaries in the EB?2 (2d preference) category, unless the foreign national's work is found to be in the national interest. It is also required in all of the EB?3 (3rd preference) categories. Faster processing is possible under the Reduction in Recruitment method but only in limited cases.
C. Permanent Residence based on Diversity: The Lottery
Applications are accepted annually from foreign nationals born in countries historically underrepresented under the U.S. immigration system. The Department of State determines the countries of origin annually, and only persons from countries designated may apply for a diversity visa. Applicants take visa numbers on a first come, first serve basis. Generally, to be granted permanent residence, individuals selected must have a high school education.
D. Other Avenues to Permanent Residence
The above?described categories constitute the affirmative immigration applications available to foreign nationals seeking to come to the U.S. Other people are able to qualify for permanent residence either because they are refugees or because they have qualified under the various legalization programs which have been enacted in the past. For example, a foreign national who can establish that he/she has a reasonable fear of persecution on the basis of race, religion, political opinion, membership in a social group or nationality may be accorded refugee status or political asylum. Asylum is generally granted to persons making the claim within the U.S. while refugee status is accorded to persons making the application outside the U.S. Political asylum is a two?step process, requiring the grantee of political asylum to apply for permanent residence after at least one year. A refugee is admitted to the U.S. as a permanent resident. There are numerical limitations on refugees which change annually depending on political conditions.
As noted above, the foregoing has been merely a summary of the various ways one can become a U.S. permanent resident. If you need specific information or assistance in obtaining your green card, contact our office and we shall see to it that you get the best possible advice on how to proceed.