For many, immigrating to the United States is a lifelong dream. However, the United States, as with most first world countries, places limits on the types and numbers of people who can come to permanently reside in the U.S.
There are a number of ways to immigrate to the U.S. Five of the primary ways to become a permanent resident of the United States are explained below. Other ways to immigrate, for which very few people qualify, are listed but not explained. Many people are surprised at how difficult it is to immigrate to the United States. However, if after reading this you feel you are qualified, you should contact an attorney who specializes in Immigration Law or the nearest USCIS office, U.S. Embassy or U.S. Consulate.
480,000 persons a year immigrate to the United States because they have U.S. citizen or permanent resident relatives. There are eight categories of people who can immigrate based on relatives. Under normal circumstances, a U.S. citizen or permanent resident must first file a visa petition for a foreign relative before that relative can start their own immigration paperwork.
Immediate relatives are spouses of U.S. citizens, parents of U.S. citizens, and unmarried minor children of U.S. citizens. There is no cap on the number of visas available each year for immediate relatives.
1. Immediate Relatives - Spouses of U.S. Citizens
Being the spouse of a U.S. citizen is the fastest, easiest way to immigrate to the United States. However, this is the most common source of immigration fraud, that is, foreign nationals marrying United States citizens only for the purpose of obtaining a green card. This is against the law and, if the USCIS finds out, the immigrant will be required to leave the United States with virtually no possibility of ever immigrating again. To prevent such fraud, the law requires that for marriages of less than two years at the time permanent residence is initially granted, both spouses must file a joint petition two years later, proving the marriage is still valid.
2. Immediate Relatives - Parents of United States Citizens
Any United States citizen over the age of 21 can petition for his or her parents. This is the second group in the category known as immediate relatives. This is also a very quick and easy way to immigrate.
3. Immediate Relatives - Children of United States Citizens
An unmarried minor child (under the age of 21) of a U.S. Citizen is also considered an immediate relative. If the U.S. citizen did not pass on citizenship at the time of the child's birth, this procedure can be used. As with the other two immediate relative groups, there is no wait to immigrate. Please note; however, that when a child turns 21, he or she is no longer an immediate relative and will be moved into the category known as "first preference."
4. First Preference - Unmarried Sons and Daughters of United States Citizens
When children of United States citizens turn 21 or marry at any age, they are no longer classified as immediate relatives. Instead, they move into a preference category. As with all the preference categories, a limit is placed on the number of persons who can immigrate to the United States each year. Because more persons are eligible to immigrate than there are numbers available, there is usually a backlog of a year or more in this category. One country, the Philippines, has a considerable First Preference backlog since there is a large number of eligible immigrants from that country who are in this group.
5. Second Preference (A) - Spouses and Minor Children of Permanent Residents
This is also an easy way to immigrate to the United States but it is not fast. The difference between spouses in this category and spouses who are married to United States citizens is a 5-8 year wait after a visa petition is filed and approved, before the spouse can immigrate to the United States. The law does not allow a spouse to come to the United States and live with her husband (or his wife) while waiting the 5-8 years to immigrate. Nor does the law allow a spouse who has an approved visa petition and who may be living in the United States, to continue to remain legally in the United States, until he or she is eligible to immigrate.
6. Second Preference (B) - Unmarried Sons and Daughters of Permanent Residents
This category is for unmarried children over the age of 21 who have a permanent resident parent. The backlog for children under 21 is approximately 5-8 years. The wait for children over 21 is currently estimated as high as 12-15 years. Because there is a substantial backlog, it is advantageous for permanent resident parents to become United States citizens as soon as eligible so that their children can immigrate much quicker under First Preference as sons and daughters of United States citizens. Only for the Philippines, it is faster if a parent remains a permanent resident and does not become a United States citizen. However, a person can opt out of being upgraded when their parent becomes naturalized.
7. Third Preference - Married Sons and Daughters of United States Citizens
If an adult son or daughter of a United States citizen marries, that person drops from First Preference category to Third Preference. Married children of permanent residents cannot be petitioned for. Instead, they must wait for a parent to become a United States citizen.
8. Fourth Preference - Brothers and Sisters of United States Citizens
Brothers and sisters of United States citizens are eligible to immigrate to the United States. The United States citizen must be at least 21 years old. However, the waiting period is 12-22 years (depending on the country of birth). During this time, the brother or sister will normally have to wait outside the United States. If possible, it is important to try to find some other visa category rather than wait for this very long time.
Procedure for Relatives to Immigrate
In order for a relative to immigrate, the United States citizen or permanent resident starts the process by filing a visa petition for the relative. The visa petition is normally filed in the United States whether the beneficiary (the relative who wants to immigrate) is in the United States or not. After the visa petition is approved, the second step of the process is to actually apply for permanent residence. Immediate relatives, who are in the United States, may also apply for their permanent residence at the same time the visa petition is filed. All others will not be allowed to file for permanent residence until after the visa petition is approved AND their priority date becomes current. [For information about priority dates and why some preferences take so long, see "How Long Does It Take to Immigrate to the United States?" by Edward R. Litwin.]
The persons described above are the only ones who can be petitioned by their U.S. Citizen or permanent resident relative. Grandparents, aunts, uncles, or cousins cannot file a visa petition for you.
The law lists five preference categories of people who can immigrate based on employment. Each employment-based preference category is allotted a certain number of visas each year. Two of the categories require a labor certification; three do not.
A Labor Certification is a process where a United States employer proves that there is a shortage of qualified, willing and available United States workers. To prove this, an employer must try to recruit United States workers by placing newspaper advertisements and making other efforts to find qualified United States workers. Only if no such worker can be found may a labor certification be granted.
Employment Not Requiring Labor Certification - There are three employment-based preference categories, which do not require a labor certification:
1. Employment-Based First Preference: Priority Workers
There are three groups in Employment-Based First Preference Category: a) persons of extraordinary ability, b) outstanding researchers and professors, and c) certain multinational managers and executives. A person who falls in one of these groups does not need to prove there is a shortage of U.S. workers. Unfortunately, not very many people are eligible for the first preference category.
2. Employment-Based Fourth Preference: Religious Workers and Other Special Immigrants
Although religious workers must have employers, they do not have to prove there is a shortage of qualified U.S. workers. However, the rules are very specific as to the requirements, which must be met in order to be classified as a religious worker. There are a few other special immigrant categories, but they have very limited application.
3. Employment-Based Fifth Preference: Investors
Certain investors are included in the employment-based preference categories. However, because they create employment and do not take employment away from U.S. workers, they do not have to go through a labor certification process. They must instead, be prepared to invest $1,000,000 ($500,000 under certain conditions) in a new business and employ at least ten U.S. workers (See Millionaire Category below.)
Employment Requiring Labor Certification - There are two preference categories of immigrants, which require labor certifications:
a. Employment-Based Second Preference: Member of Professions Holding Advanced Degrees or Aliens of Exceptional Ability
This group is comprised of persons with advanced degrees or the equivalent who are working in jobs, which require someone with an advanced degree.
b. Employment-Based Third Preference: Skilled Workers, Professionals and Other Workers
There are three groups within this preference category: a) professionals, b) skilled workers performing job duties, which require at least two years of training, education, or experience, and c) other workers in positions that require less than two years of training, education, or experience.
Persons in both second and third preference categories must go through a complete labor certification process. In order to successfully complete this process, an employer must demonstrate that there is a shortage of U.S. workers. To do this, the employer must advertise in a local newspaper and may have to perform other recruitment efforts. This is a complicated process. Most employers or immigrants who make use of this process retain attorneys to assist them. (See "Would You Like to Immigrate to the United States Through Employment?" by Edward R. Litwin, for further information.)
III. Millionaire Category
The law provides that a person who invests one million dollars in a new commercial business may be able to immigrate to the United States. However, the business must also create jobs for at least ten U.S. workers. The one million dollars normally must be a cash investment. Borrowed funds can be used, but only if secured by property other than the business itself.
The investor can also purchase an ongoing business, however, in doing so, the $1 million investment must increase the value of the business by at least 40%. And, the expanded business must employ at least 40% more persons or an additional ten persons, whichever is higher.
An investor may qualify with an investment of only $500,000 if the business is located in an area of high unemployment or a rural area. However, all of the other rules apply, including the need to employ at least ten US workers.
An investor is granted conditional permanent residence for two years. At the end of two years, additional documents must be filed with the USCIS to establish that the business has survived the previous two years, that the required capital was invested, and that the required number of U.S. workers have been employed. If the investor is successful, the condition will be removed and the investor will become a regular permanent resident. (For more information see "Would You Like to Immigrate to the United States Through Investment?" by Edward R. Litwin.)
IV. Refugees/Political Asylum
A person who has been granted refugee or political asylee status is eligible to apply for permanent residence after one year. The number of refugees accepted is determined each year by the President. Approximately 80,000 persons a year are eligible under this category. There is no limit on the number of people who can be granted asylum each year. However, the vast majority of refugees and asylees come from relatively few countries in the world where political conditions allow for the granting of political asylee/refugee status.
V. Diversity Visa Lottery Program
Congress has created a diversity lottery program allowing 55,000 people to immigrate to the United States per year. Under a lottery-type procedure, nationals from countries with low rates of immigration to the U.S. may apply. Applicants must have at least a high school education or have worked at least two years in an occupation that requires at least two years of training and experience to be eligible to apply. Countries with low rates of immigration to the U.S. are countries from which less than 50,000 people have immigrated within the last five years. This excludes natives of the following countries: Brazil, Canada, China (Mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, the United Kingdom (except Northern Ireland) and Vietnam.
Delays in Immigrating
Only approximately 700,000 people are allowed to immigrate to the United States in any given year. However, there are currently many more people who are eligible to immigrate to the United States. Therefore, some people will have to wait until future years to immigrate. The United States government maintains an orderly immigration process by assigning priority dates to those who are eligible to immigrate to the United States based on relatives or employment. Within the overall worldwide numbers that are available, there are certain limitations. For example, only 65,000 brothers and sisters of United States citizens may immigrate to the United States each year. Since there are currently over 1.5 million persons who have been petitioned by their United States citizen brothers and sisters, the wait in that category is very long, estimated at between 12-22 years. While most other categories have much shorter waits, delays of many years are not uncommon. (See "How Long Does It Take to Immigrate to the United States?" by Edward R. Litwin, for more information.)
Other Ways to Immigrate
For a very few number of people, there are other ways to immigrate to the United States. These include:
1. Cancellation of Deportation. This is available to persons who have been in the United States for more than ten years. However, in order to apply, you must be in deportation proceedings before an Immigration Judge. In addition, you must prove that there would be an exceptional and extremely unusual hardship on a U.S. citizen or permanent resident spouse, parent or child if you were required by the Judge to leave the U.S. Such hardship is difficult to prove. However, if you convince the Judge, you will be allowed to stay in the United States as a permanent resident. If you do not, the Judge will order you to leave the United States.
2. Registry. This is available to people who have been in the United States since before 1972 but have never filed papers to immigrate to the United States.
3. Persons who have worked with or for the Central Intelligence Agency.
4. Certain Panama Canal Zone employees.
5. Persons who have worked for fifteen years for the United States government abroad.
6. Persons who have had or will have twelve years of active duty in the United States military.
This article answers many of the most of the frequently asked questions, which we receive in our office about how to immigrate to the United States. If after reading this you still have questions about immigrating to the United States or any other immigration matter, you may call Litwin & Smith and arrange for an appointment at our San Francisco, South San Francisco, or Santa Clara office. There is an initial consultation fee for the first half-hour. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of the information provided.