PERMANENT RESIDENT STATUS – IMMIGRANT VISAS
Immigrant visas are issued to foreign nationals who enter the U.S. for permanent residence. Immigrant visas are normally based on a qualified family relationship, employment relationship or the diversity program. Foreign nationals with immigrant visas are automatically authorized to work in the U.S., and they receive alien registration cards (“Green Cards”) after they enter the U.S.
I. Family Immigration
Immigrant visas based on family relationships consist of two groups: immigrant visas subject to numerical limitations and those that are not.
A. Immediate Relatives: Visas without numerical limitations are issued to immediate relatives of U.S. citizens, including parents, children and spouses of U.S. citizens. To qualify as a “child” of a U.S. citizen, the person must be unmarried, under the age of 21 years old, and either a legitimate child, stepchild, illegitimate child, adopted child, an orphan adopted abroad, or an orphan coming to the U.S. for adoption. To apply for a parent, the U.S. citizen child must be 21 years or older. To qualify as a spouse of a U.S. citizen, the person must have a valid marriage recognized by the INA.
B. Preference Categories: Visas subject to numerical limitations are issued to foreign nationals who qualify for preference family visas. Based on various family relationships, there are four family-based preferences: (1) unmarried sons and daughters of U.S. citizens; (2) spouses, children, and unmarried sons and daughters of permanent residents; (3) married sons and daughters of U.S. citizens and their spouses and children; and (4) brothers and sisters of U.S. citizens.
II. Employment Immigration
In addition to family relationships, U.S. immigration may be based on an offer of employment by a U.S. company or on employment creation resulting from investments in business enterprises in the U.S. There are five employment-based preferences subject to numerical quotas as follows.
A. First Employment-Based Preference (EB-1): EB-1 is available to persons of “extraordinary ability,” “outstanding professors and researchers,” and certain “executives” and “managers” of multinational organizations.
1. Extraordinary Ability: “Extraordinary ability” is defined to mean “a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor.” No offer of employment is required. However, the applicant must demonstrate that he will continue to work in the field after immigration. This requirement is usually met by submitting a letter from a prospective employer or a statement by the foreign national describing his or her intended work in the U. S.
2. Outstanding Researchers and Professors: Applications for EB-1 outstanding researchers and professors are limited to academic fields. No labor certification is required, but an offer of employment from a university or similar institution of higher learning is mandatory.
3. Multinational Executives and Managers: Certain executives and managers of multinational organizations may apply for permanent resident status in the U.S. An offer of employment by a U.S. company is required, but there is no requirement for labor certification. A qualifying multinational organization includes an office of the same foreign company or its parent, subsidiary, or affiliate with common owners. The petitioning U.S. company must also have been doing business in the U. S. for one year before filing the petition.
B. Second Employment-Based Preference (EB-2): Foreign nationals with advanced degrees or of exceptional ability whose work is in the national interest qualify for permanent resident status in the U.S. For EB-2 preference, a labor certification is usually required unless pre-certified pursuant to Schedule A or national-interest waiver is requested.
1. Professionals with Advance Degree: Professionals with advanced degrees must have a degree above a bachelor’s or, in the alternative, a bachelor’s degree plus five years of “progressive” post-baccalaureate work experience in a profession.
2. Exceptional Ability: Applicants must demonstrate that they, because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States. They must have an offer of employment and must be granted a labor certification. Alternatively, one may request a waiver of the labor certification by showing that the applicant’s admission is in the national interest.
C. Third Employment-Based Preference (EB-3): This category includes (1) professionals, (2) skilled workers, and (3) other workers. And offer of employment from a U.S. employer is required for this preference, so is Labor certification. There is generally a long wait for EB-3 visas due to the low quantity of visa numbers set aside under this category.
1. Professionals: The applicants must hold a U.S. bachelor degree or a foreign equivalent degree and is a member of a particular profession. To show that a foreign national is a member of the profession, the employer must submit evidence demonstrating that the minimum of a bachelor degree is required for entry into the offered employment.
2. Skilled Workers: A foreign national who is capable of performing skilled labor that requires at least two years of training or experience, that is not of a temporary or seasonal nature, and for which qualified workers are not available in the U. S.
3. Other Workers: For EB-3 “other” or “unskilled workers”, the job positions require less than two years of training, work experience, or college education.
D. Fourth Employment-Based Preference (EB-4): Religious workers may apply for permanent residence in the U.S. Religious workers who qualify for immigration under this category include ministers and those working in a religious occupation or in a religious vocation. The foreign nationals must have been a member of the denomination and working as a qualifying religious worker for two years immediately preceding the filing of the petition and be coming solely to work for a bona fide nonprofit religious organization of the same denomination in the U.S.
E. Fifth Employment-Based Preference (EB-5): Foreign investors who seek to enter to invest in an enterprise that creates 10 full-time jobs are eligible to apply for permanent resident status. To qualify for this category, the new enterprise must: (1) be one in which the person has invested (or is in the process of investing) at least $1 million or at least $500,000 if investment is made in a “targeted employment area”; (2) benefit the U.S. economy; and (3) create full-time employment for at least 10 U.S. workers.
III. Diversity Immigration
U.S. permanent residence may be gained through the diversity immigration program. Under this program, 55,000 immigrant visas are available annually to people who are natives of low-admission countries. A person is eligible for a diversity visa if she has at least a high school education or its equivalent, or within the preceding five years, two years work experience in an occupation that requires at least two years training or experience. To participate in the program, the person must be from a low-admission country and register her name with the U.S. Department of State during the designated registration period usually between October and November each year.
IV. Application Process
The visa application process is a multi-step one. For family-based applications, the relative who is a U.S. citizen or lawful permanent resident must first file with the U.S. CIS a petition with the required supporting documentation. After the petition is approved, the State Department must determine whether a visa number is immediately available to the foreign national. If the foreign national is already in the U.S., and eligible for adjustment of status, she must apply for adjustment of status when the visa number has become available. If she is outside the U.S., she must apply at the U.S. consulate for an immigrant visa when a visa number has become available. The employer sponsored visa application goes through a similar multi-step process with the added requirement that the employer file a labor certification application and its approval is the prerequisite for filing the immigrant petition in certain categories. The diversity based visa application requires first participating in and winning a visa number through what is commonly known as the “visa lottery” and then moving through similar steps as outlined above.