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Immigrant Visas & Lawful Permanent Residency

Introduction
An individual who intends to remain in the United States on a long-term basis is well advised to become a Lawful Permanent Resident (LPR), i.e. a holder of the green card (the Permanent Resident Card - Form I-551). The green card makes its owner legally employable and serves as proof of lawful residence in the United States. The Permanent Resident Card is obtained upon the approval of the immigrant visa or adjustment of status (AOS). The Department of Homeland Security's United States Citizenship and Immigration Services (USCIS) stipulated several years ago that the green card is valid for 10 years and has to be renewed at the end of this period. The categories of immigrants eligible for an immigrant visa and admissible for permanent residence are:

  • Family-Based Immigrants;
  • Employment-Based Immigrants Sponsored by a United States Employer (EB1-EB4);
  • Employment-Based Immigrants Creating Employment in the United States (EB5);
  • Immigrants Entitled to Refugee or Asylum Status;
  • Diversity Immigrants.
The Immigration and Nationality Act (INA) sets annual quotas on immigrant visas. The statute sets the overall cap for the allotment of family-based immigrant visas at 480,000 visas for each fiscal year, and limits the number of family-based immigrants other than "immediate relatives" of a United States citizen to 226,000 for each fiscal year. The overall cap for employment-based visas is set at 140,000 visas for each fiscal year. Each preference category of the first three preference categories (EB1-EB3) of employment-based visas is allocated 40,000 visas for each fiscal year, and the other two categories (EB4-EB5) are allocated 10,000 each for fiscal year. Any unused family-based immigrant visas may be used for employment-based immigrants. The cap for the allocation of diversity immigrant visas is set at 55,000 visas for each fiscal year. Visa prorate provisions apply to the allocation of visas for a foreign nation or dependent area when visa demand exceeds the per-country limit. The per-country limit for preference immigrants is set at 7% of the total annual family-based and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

Immigrant visas are allocated based on their priority date. The priority date is the cut-off date set for the allocation of visas based on the preference category and by the country. Usually the priority date for an alien is based on the date the immigrant visa petition is filed for family-based preferences and some employment-based preferences that do not require labor certification from the Department of Labor (DOL); if labor certification is required, the priority date is based on the date the labor certification petition is filed with the DOL. The priority date becomes vital and determines whether the petitioner will be allotted an immigrant visa when visa numbers are unavailable due to retrogression (the situation where previously current dates on the Visa Bulletin go backwards and become unavailable) or due to per-country limitations. If the Visa Bulletin chart states "C" for a given preference category and country, the numbers are current in that preference category and there is no waiting period for filing a visa petition. If the numbers are backlogged, there will be a cut-off date listed. If the priority date is before the date indicated, the alien is eligible to file a visa application during the particular month when the dates are current. The earlier the priority date of the petition, the earlier an immigrant visa will be allocated if all requirements are met.

The spouse and children (unmarried and under 21 years of age) of the principal alien accompanying or following to join the principal alien are entitled to the same status and order of consideration. No separate immigrant petition is required to be filed on their behalf.

The process of obtaining permanent residency is fraught with bureaucratic obstacles, and can turn into an unnerving ordeal ending with unsatisfactory results if the applicant is guided by generic instructions supplied by government clerks rather than by legal advice of an expert in immigration matters acting in the interests of the client.

Family-Based Immigrants
Family-based immigrants are divided into five categories: nonquota immigrants and immigrants broken into four categories according to preference status associated with a certain annual quota on immigrant visas. Family-based nonquota immigrants are immediate relatives of a United States citizen. An "immediate relative" is defined as the spouse, a child (unmarried and under 21 years of age), or a parent of a United States citizen (in the case of a parent, the citizen must be over 21 years of age), or the spouse or a child (unmarried and under 21 years of age) of the spouse of a deceased United States citizen under certain conditions.
  • Family-based first preference status is accorded to unmarried children (over 21 years of age) of a United States citizen. Adopted children have to meet the statutory definition of an "adopted child".
  • Family-based second preference status is accorded to the spouse and unmarried children of an LPR.
  • Family-based third preference status is assigned to married children of a United States citizen.
  • Family-based fourth preference status is accorded to siblings of an adult citizen of the United States (over 21 years of age). Siblings are required to be the children of a common parent. Stepsiblings and adopted siblings may be also included into this category under certain conditions.
A family-based alien is entitled to receive an immigrant visa if he/she is the beneficiary of an approved immigration petition submitted by the alien or the family sponsor with the USCIS.

Employment-Based Immigrants Sponsored by a United States Employer (EB1-EB4)
There are four categories of employment-based immigrants sponsored by a United States employer (EB1-EB4) reflecting preference status, each category having its own annual quota on immigrant visas.
  • Employment-based first preference immigrants - priority workers (EB1) include aliens with extraordinary ability in the sciences, arts, education, business, or athletics demonstrated by national or international acclaim; outstanding professors or researchers recognized internationally as outstanding in a specific academic area; and multinational executives or managers.
  • Employment-based second preference immigrants (EB2) are professionals holding advanced degrees or aliens of exceptional ability in the sciences, arts, or business.
  • Employment-based third preference immigrants (EB3) include skilled workers capable of performing labor requiring at least 2 years of training or experience, for which qualified workers are not available in the United States; professionals who hold baccalaureate degrees and are members of the professions; and other workers capable of performing unskilled labor, for which qualified workers are not available in the United States (no more than 10,000 visas may be allocated to such "other" workers in any fiscal year).
  • Employment-based fourth preference immigrants - special immigrants (EB4) consist of certain ministers and religious workers, certain United States Government employees abroad, certain foreign medical graduates, minors declared dependent on a juvenile court located in the United States, and certain United States Armed Forces foreign enlistees with honorable active duty records.
Before a United States employer can submit an immigration petition to the USCIS, the employer may have to obtain a labor certification approved by the DOL. The DOL has to certify to the USCIS that there are not sufficient qualified workers available to perform such skilled or unskilled labor as the immigrant offers at his/her intended place of employment in the United States and that said employment will not adversely affect other similar workers in the United States. The labor certification requirement applies to EB2 and EB3 immigrants and is waived for priority workers (EB1) and special immigrants (EB4). EB2 immigrants may seek an exemption from the labor certification requirement if their admission is in the national interest. The National Interest Waiver applies to those who can demonstrate to the USCIS that (a) employment is sought in an "area of substantial intrinsic merit"; (b) the proposed benefit of the work is "national in scope"; and (c) the "significant" benefit derived from the individual's participation in the "National Interest" field of endeavor "considerably" outweighs the "inherent" national interest in protecting United States workers through the labor certification process. Members of the teaching profession, those who have exceptional ability in the sciences or the arts, professional athletes, and foreign medical graduates and health workers are subject to special labor certification requirements. To apply for a labor certification on behalf of the alien, the employer must file a completed Department of Labor Application for Permanent Employment Certification form (ETA Form 9089) with the DOL's Employment and Training Administration (ETA).

As of March 28, 2005, all applications are filed under the Program Electronic Review Management (PERM) system of rules and regulations. PERM requires the employer to engage in certain recruitment efforts before filing the application, to attest to the fact that the employer has been unable to find a qualified United States worker for that position, and to maintain documentation of the recruitment efforts for 5 years. The system is intended to streamline and expedite the process of obtaining an alien employment certification. With online filing, the decision on a labor certification is completed within 45-60 days. The drawback of having to use PERM is that this system is hypersensitive to minor typing errors in dates or checking a wrong "yes"/"no" box when answering numerous detailed questions. In addition to being accurate, one has to pursue the correct strategy in answering these questions.

Employment-Based Immigrants Creating Employment in the United States (EB5)
Employment-based fifth preference immigrants - immigrant investors (EB5) are seeking to enter the United States for the purpose of engaging in a new commercial enterprise in which the alien has invested (after November 29, 1990) capital in an amount not less than $1,000,000 (the amount may be less - only $500,000 - if the investment is made in a rural area with high unemployment - at least 150% of the national average, and may be greater if the investment is made in a metropolitan area with low unemployment). These investors are not subject to the labor certification requirements.

The USCIS allows capital to be in the form of cash, equipment, inventory, other tangible property, cash equivalents, or debt secured by assets owned by the foreign investor, who must also be personally and primarily liable. The capital must not be contributed in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the foreign investor and the new commercial enterprise. The assets of the new commercial enterprise may not be used to secure any of the foreign investor's debt. The capital is estimated at fair market value in United States dollars and should be acquired by lawful means. There may be other investors who have invested in the new commercial enterprise used as the basis for the foreign investor's petition, but as long as the petitioner's individual investment is in the required amount and results in the creation of at least 10 full-time positions (at least 35 hours per week) for qualifying employees (i.e. those lawfully authorized to be employed in the United States), the USCIS requirements are met.

Immigrants Entitled to Refugee or Asylum Status
Refugees are defined as those who are persecuted or have a "well-founded fear of persecution" on account of race, religion, nationality, membership in a particular social group, or political opinion; and who are outside any country of their nationality or, in the case of those having no nationality, are outside any country in which they last habitually resided, and are unable or unwilling to return to that country and to avail themselves of its protection. The labor certification requirement does not apply to individuals seeking refugee status. A person who has been forced to comply with, or persecuted for failure to comply with, or for resistance to, a coercive population control program is deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear of persecution on account of political opinion. The statutory definition of the term "refugee" does not include war refugees or displaced persons who flee areas of armed conflict for reasons other than persecution or a well-founded fear of persecution on one of the enumerated grounds in the statute. The government may also admit any refugee determined to be of "special humanitarian concern" to the United States. Participants in persecution, murderers, and those firmly resettled in a foreign country (i.e. those who have been offered resident status, citizenship, or some form of permanent resettlement by that country) are ineligible for refugee status. The application for refugee status may be filed with the USCIS or with a United States consular office.

Asylum seekers must be physically present in the United States or at a border or port of entry and demonstrate that they qualify as refugees. Asylum involves a two-step process: a finding of statutory eligibility for refugee status, and a discretionary decision whether to grant asylum. Those who persecuted others, have been convicted of a serious crime, are a danger to the security of the United States, or are firmly resettled in a third country may not be granted asylum. Asylum applications may be filed with the USCIS, the asylum office, or the Immigration Court in certain cases.

Diversity Immigrants
Since October 1994, there has been an annual lottery program in place called the Diversity Immigrant Program (commonly known as the Green Card Lottery).

Lottery visas are distributed among six geographical regions: Africa: all continental countries and neighboring islands; Asia: from Israel to North Pacific Islands including Indonesia; Europe: from Greenland to former Soviet Union; North America: the Bahamas; Oceania: Australia, New Zealand, Papua New Guinea, and all countries and islands in the South Pacific; South America: Central America, Mexico, and the Caribbean countries. The natives of India, Pakistan, and North America are viewed as over-represented in the United States and, therefore, are excluded. However, individuals born in Bangladesh (which was part of India) and the Bahamas (which are part of North America) do qualify. Certain other narrow exceptions may also apply. The natives of countries from which the United States has received over 50,000 immigrants during the last 5 years are considered "high admission" and are not eligible for the program. These countries vary from one year's lottery to the next. A greater proportion of visas goes to regions with lower immigration rates in the United States.

Eligible aliens must also have either a high school education or its equivalent, or within the past 5 years have 2 years of work experience in an occupation that requires at least 2 years of training or experience. "High school education or its equivalent" means successful completion of a 12-year course of elementary and secondary education in the United States or successful completion of a comparable formal course of elementary and secondary education in another country. Under the INA, the labor certification requirement is waived for this immigrant category.

Applications are submitted to the Department of State (DOS) and approvals are generated randomly by software. The lottery winners then apply for an immigrant visa or AOS to obtain the green card. An approved diversity immigrant application is valid only within the fiscal year of the selection, and if the USCIS or the consulates are unable to issue an immigrant visa or adjust status to permanent resident status before the end of the fiscal year, the application is automatically revoked.


Boston Immigration Attorneys & Lawyers
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