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Immigrant Visa InformationFamily Based To become a Lawful Permanent Resident, (“LPR”), also commonly known as “green card holder”) based on a family relationship, you must go through a multi-step process. To qualify for a Family Based Immigrant Visa, you must have a relative who is a Citizen or a Lawful Permanent Resident of the United States Step One: Your LPR or Citizen family member must file an I-130 petition (Petition for Alien Relative) to confirm that the Citizenship and Immigration Services (CIS) recognizes the legitimacy of the relationship. At the time of filing, you will be asked if you will finish the process inside the United States or abroad. Step Two: NOTE: An Immigrant Visa number, which is assigned by the U.S. Department of State, must be available to you before you can begin Step Two. An Immigrant Visa Number is immediately available to spouses, parents and unmarried children under the age of 21 of U.S. Citizens. Other relatives fall into various categories that are described below and have various waiting periods. Once the I-130 petition is approved, and an Immigrant Visa Number is available, your situation will determine the direction of the next step. If you are already in the United States, you may be eligible for Adjustment of Status. If so, you may file Form I-485 (Application for Adjustment of Status) and await an interview with Citizenship and Immigration Services at their local offices in your city of residence. While your application is pending, you may also apply for Employment Authorization (Form I-765) and Advance Parole to Travel (Form I-131). If you are outside the United States or not eligible for Adjustment of Status, you will need to apply for an Immigrant Visa at a U.S. Consulate or Embassy in your home country or country of residence. This is known as Consular Processing of an Immigrant Visa. These applications are managed by the National Visa Center which will contact you with instructions after your I-130 petition is approved. Who is eligible to file for a relative and what degree of relationship is required?
Affidavit of Support Required: Family based immigration requires the Petitioner to prove his/her income is 125% above the mandated poverty line for the entire family, including the person seeking to immigrate and all other sponsored family members. This is done by filing an Affidavit of Support (Form I-134) with supporting documentation at the time of Adjustment of Status or Consular Processing of the Immigrant Visa. Preference Categories Relatives of U.S. Citizens and LPRs are divided into preference categories and each preference category is allotted a certain number of Immigrant Visa Numbers per year. Most preference categories are oversubscribed and have long waiting periods. Spouses, parents and unmarried children under the age of 21 of U.S. Citizens are considered “Immediate Relatives” and are not subject to preference categories. An Immigrant Visa is immediately available to them upon approval of the I-130 petition. However, they still encounter processing delays due to workload backlogs at U.S. Embassies and Consulates, or in the U.S. workload backlogs at CIS processing offices. All other beneficiaries of approved I-130 applications (Step One) are placed into categories based on a preference system. The relatives in these categories must wait for an Immigrant Visa Number to become available according to the following preferences: First Preference: Unmarried adult sons and daughters of U.S. citizens. Adult means 21 years of age or older. Second Preference: Spouses of Lawful Permanent Residents, their unmarried children (under age 21), and the adult sons and daughters (over age 21) of Lawful Permanent Residents. Third Preference: Married sons and daughters of U.S. citizens. Fourth Preference: Brothers and sisters of adult U.S. citizens. Employment Based Immigrant Visa Categories Employment based Immigrant Visa processing most commonly depends on sponsorship of a foreign worker by a U.S. employer. The foreign worker is not required to be currently employed by the U.S. sponsor prior to completion of the case, although the foreign worker frequently is already in the United States working in a nonimmigrant status. A brief overview of the basic options for obtaining permanent residence through employment or investment is listed below. For more information on how you can obtain permanent residence based on your particular circumstances and needs, please go to the Intake Form on this site, or contact our office by email or telephone. Job Offers and Labor Certification Most Employment Based categories require a specific job offer. However, there are a few exceptions that are noted below. In addition, most categories also require approval of a Labor Certification. This process is now commonly called “PERM” which stands for PROGRAM ELECTRONIC REVIEW MANAGEMENT. A permanent labor certification issued by the Department of Labor (DOL) is the first step in the government’s permission process that will allow an employer to hire a foreign national to work permanently in the United States. During the Labor Certification process the employer must prove to the satisfaction of the U.S. Department of Labor that:
The Employment Based Categories There are five employment-based “preference categories” through which foreign workers may obtain green cards. These are summarized below: First Preference – Priority Workers This category is set aside for “priority workers,” which includes persons of extraordinary ability, outstanding professors and researchers, as well as multinational executives and managers. This first preference category is not subject to the Labor Certification requirement, therefore it is not necessary to show there is a lack of U.S. workers qualified for the position that the foreign worker will fill. Second Preference – Professional Workers The second employment-based preference category is set aside for professionals having an advanced degree or possessing exceptional ability. “Exceptional ability” is a lower standard than that required of aliens of “extraordinary ability” in the First Preference category. Those applying in the Second Preference category must possess a degree of expertise above that ordinarily encountered in his/her field. Third Preference - Skilled Workers, Professionals, Unskilled Workers The Third Employment Preference is a “catch all” category which covers several types of foreign workers with offers of employment in the U.S. Three groups are included:
Fourth Preference - Special Immigrants Special immigrants include: persons trying to reacquire citizenship, returning residents, religious workers seeking admission permanently and overseas employees of the U.S. government. The most common applicants in this category are Religious Workers. To qualify as a Religious Worker, the applicant must be a member of a religious denomination that has an organization in the U.S. and be entering to carry on the vocation as a minister or a similar religious vocation or occupation. Also, the applicant must have been working for at least 2 years in such a vocation. No Labor Certification is required. Fifth Preference - Employment Creation – Immigrant Investors This category is often referred to as the “EB-5” category and is unique because it does not require a U.S. employer to sponsor the foreign applicant or Labor Certification. In order to qualify for an employment-based Immigrant Visa in this category, the foreign national must establish that he or she has made a substantial investment ($500,000 to $1 million depending on the region of the country) and has generated job creation in a qualifying enterprise such as a new enterprise or an established enterprise that is restructured or reorganized so that there is a substantial change in the company’s net worth or number of employees. If the foreign national is able to demonstrate the above factors to the satisfaction of the immigration service, then the investor will be granted resident status on a conditional basis for 2 years. At the end of that period, the investor must demonstrate that the enterprise actually was formed and that the required capital was fully invested. The foreign national also must file an additional petition with the USCIS (U.S. Citizenship and Immigration Services) to have the temporary conditions removed from his/her visa in order to proceed to full permanent residency. Other Routes to Legal Permanent Residency in the United States Visa Lottery Legal Permanent Residence status may also be obtained through the Diversity Visa Lottery Program ("Green Card Lottery"). Those selected in the most recent lottery will be notified by mail between May and July 2006 and will be provided further instructions, including information on fees connected with immigration to the U.S. Persons not selected will NOT receive any notification. Please continue to check the HaydenLAw website for a News Flash on the Home Page where the start date of the next lottery will be announced. Asylum Political Asylum allows a foreign national to stay and work in the U.S. temporarily and to eventually obtain Legal Permanent Residence. An asylum seeker may also ask for Asylee Status for his or her spouse and children under 21 years of age. There is no quota limit on the number of people who may obtain political asylum each year; however, there is an annual limit of 10,000 people who may obtain permanent residency based on political asylum. Applications for political asylum must be based on an actual experience of persecution in the applicant’s home country or fear of persecution based on race, religion or political opinion in the applicant’s home country. If the applicant is in the United States, he or she must apply for asylum within one year of arrival, unless the applicant is able to prove that extraordinary circumstances prevented making the application within that time limit. Applicants also may request political asylum upon arrival in the U.S. Even foreign nationals who are not currently in legal status in the United States may apply for political asylum. It is important to note that applicants who have been granted legal permanent status in some third country prior to their arrival in the U.S. are ineligible for asylum in the U.S. |
