Would You Like to Immigrate to the United States?
We want you to be informed, and therefore, our certified specialist in immigration and nationality law, Edward Litwin, has written several articles, including the article below, designed to inform you and answer some of your questions. If you have any questions regarding the content below, or any other immigration questions, please contact one of our experienced California immigration lawyers.
We have helped hundreds of individuals and businesses with their immigration needs, and we want to help you.
WOULD YOU LIKE TO IMMIGRATE
TO THE UNITED STATES?
Introduction
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 actually come to reside permanently. Five 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 closest Immigration Service office, U.S. Embassy or U.S. Consulate.
Approximately 500,000 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 an overseas relative before that relative can start their own immigration paperwork.
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, people marrying United States citizens solely for the purpose of obtaining permanent residence. This is against the law and, if the Immigration Service finds out, the immigrant will be required to leave the United States with virtually no possibility of ever immigrating again. To try to control this fraud, the law requires that where the marriage is 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. If a person has a United States citizen child over the age of 21, it is very quick and easy to immigrate.
3. Immediate Relatives - Children of United States Citizens A child of a United States citizen under the age of 21 is also considered an immediate relative. As with the other two immediate relative groups, there is no wait to immigrate. When a child turns 21, he or she is moved into a category known as "first preference."
OTHER RELATIVES
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 for 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 - Spouses of Permanent Residents This is also an easy way to immigrate to the United States but it is not fast. The difference between this category and those who are married to United States citizens is an 8-10 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 8-10 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 - Sons and Daughters of Permanent Residents There are two such classes in this category: children of permanent residents under the age of 21 (classified as 2A), and children over the age of 21 (classified as 2B). The backlog for children under 21 is approximately 8-10 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 so that their children can immigrate much more quickly under First Preference as sons and daughters of United States citizens. For only the Philippines, it is faster if a parent remains a permanent resident and does not become a United States citizen.
7. Third Preference - Married Sons and Daughters of United States Citizens When a son or daughter of a United States citizen marries, that person drops from First Preference 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 15-20 years. In the meantime, 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 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 or not the beneficiary (the relative who wants to immigrate) is currently in the United States. 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 until 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 petition for their relatives. Grandparents, aunts, uncles, or cousins cannot file a visa petition for you.
II. Employment
The law lists five categories of people who can immigrate based on employment. Two categories require a labor certification; three do not. A Labor Certification is a process whereby a United States employer proves that a shortage of qualified and available United States workers exists. 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 categories that do not require a labor certification:
1. Employment First Preference There are three groups in Employment First Preference:
a. persons of extraordinary ability
b. outstanding researchers and professors
c. certain multinational managers and executives
A person who falls in one of these groups does not need to go through a recruitment process to prove a shortage of U.S. workers. Unfortunately, not very many people are eligible for first preference.
2. Religious Workers and Other Special Immigrants Although religious workers must have employers, they do not have to go through a recruitment process to prove 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. Investors Investors are included in the employment-based 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.)
There are two categories of immigrants which require labor certifications:
- EB-2 (Second Preference) This group is comprised of persons with advanced degrees or equivalent who are working in jobs which require someone with an advanced degree.
- EB-3 (Third Preference) There are three groups within this category:
a. professionals
b. skilled workers performing job duties which require at least two years of training, education, or experience
c. other workers
Persons in both EB-2 and EB-3 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 or national journal. The employer must list the job duties, the minimum job requirements, and the salary being offered. This is a lengthy and 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 $1 million 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 $1 million 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 hire at least ten U.S. workers. An investor is granted conditional permanent residence for two years. At the end of two years, additional documents must be filed with the Immigration Service 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 has 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 for one year is eligible to apply for permanent residence. Although approximately 80,000 persons per year are eligible under this category, the vast majority come from relatively few countries of the world where political conditions allow for the granting of political asylee/refugee status in the first place.
V. Diversity
Congress has created a diversity program allowing 55,000 people to immigrate to the United States per year. Using a lottery type procedure, nationals of low admission countries who 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 are eligible to apply. Low admission countries are countries from which less than 50,000 people have immigrated within the last five years. This excludes natives of countries of Mexico, Canada, Columbia, Philippines, England, Dominican Republic, El Salvador, India, Jamaica, Korea, Poland, China, (Including Taiwan), 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 more than that 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 thirteen to twenty years. While most other categories are much shorter, 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 it 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 return home. Such hardship is difficult to prove. 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
Disclaimer : Nothing on this or associated pages should be taken as legal advice for any individual case or situation. the information is intended to be general and should not be relied upon for any specific situation.
© 2001 All Rights Reserved
Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. He and his firm have helped thousands of people immigrate to the United States. He is available for consultation by appointment.
If after reading this you have questions about immigrating to the United States through employment, or any other immigration matters, you may call the office of Litwin & Associates and arrange an appointment at either our South San Francisco, San Francisco, or Sunnyvale office. There is an initial consultation fee of $50 for the first half hour.
Copyright ©2001 Edward R. Litwin, APC All Rights Reserved
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