Would You Like to Immigrate to the United States?
For many, immigrating to the US is a lifelong dream. Many people are surprised at how difficult it is to immigrate to the US. The US places limits on the types and numbers of people who can come to reside in the US permanently. If you feel qualified after reading this, you should contact an attorney who specializes in Immigration Law.
OBTAINING A GREEN CARD THROUGH US CITIZEN/PERMANENT RESIDENT RELATIVES
Immediate relatives are spouses of US citizens, parents of US citizens, and unmarried minor children of US citizens. There is no limit on the number of visas available each year for immediate relatives.
Spouses of US Citizens
Being a US citizen’s spouse is the fastest, easiest way to immigrate to the US. However, this is the most common source of immigration fraud. The law requires both spouses to file a joint petition two years later, proving the marriage is still valid to prevent immigration fraud.
Parents of US Citizens
Any US citizen over the age of 21 can petition for his or her parents. This petition process is also a quick and easy way to immigrate.
Children of US Citizens
An unmarried minor child (under the age of 21) of a US Citizen is also considered an immediate relative. As with the other two immediate relative groups, there is no wait to immigrate. Please note 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.”
First Preference – Unmarried Sons and Daughters of US Citizens
When children of US 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 US 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.
Second Preference A – Spouses and Minor Children of Permanent Residents
The 2nd Preference Category A is also an easy way to immigrate to the US. However, there is a 5-8 year wait after a visa petition is filed and approved before the spouse can immigrate to the US. Please note, the law does not allow a spouse to come to the US and live with their spouse while waiting the 5-8 years to immigrate. Nor does the law enable a spouse who has an approved visa petition and who may be living in the US to continue to remain legally in the US until he or she is eligible to immigrate.
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 also approximately 5-8 years. The wait for children over 21 is currently estimated as high as 12-15 years.
To avoid this backlog, it is advantageous for permanent resident parents to become US citizens as soon as eligible so that their children can immigrate much quicker under First Preference as sons and daughters of US citizens.
Often it is faster if a parent remains a permanent resident and does not become a US citizen. However, a person can opt-out of being upgraded when their parent becomes naturalized.
Third Preference – Married Sons and Daughters of US Citizens
If an adult son or daughter of a US citizen marries, that person drops from the First Preference category to the Third Preference. The married children of permanent residents cannot be petitioned for. Instead, they must wait for a parent to become a US citizen.
Fourth Preference – Brothers and Sisters of US Citizens
Brothers and sisters of US citizens are eligible to immigrate to the US. The US 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 typically have to wait outside the US. If possible, it is essential to try to find some other visa category rather than wait for this very long time.
Green Card Process for US Citizen/Permanent Resident Relatives
For a relative to immigrate, the US citizen or permanent resident starts the process by filing a visa petition for the relative. The visa petition is usually filed in the US whether the beneficiary (the relative who wants to immigrate) is in the US or not. After the visa petition is approved, the second step of the process is to apply for permanent residence. Immediate relatives in the US may also apply for their permanent residence while 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.
OBTAINING A GREEN CARD THROUGH US EMPLOYMENT REQUIRING LABOR CERTIFICATION
Labor Certification is a process where a US employer proves a shortage of qualified, willing, and available US workers. To prove this, an employer must recruit US workers by placing newspaper advertisements and making other efforts to find qualified US workers. A labor certification may be granted if no such employee is located.
Employment-Based Second Preference (EB-2): Member of Professions Holding Advanced Degrees or Aliens of Exceptional Ability
This group comprises persons with advanced degrees or the equivalent who are working in jobs, which require someone with an advanced degree.
Employment-Based Third Preference (EB-3): 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.
OBTAINING A GREEN CARD THROUGH EMPLOYMENT NOT REQUIRING LABOR CERTIFICATION
There are three employment-based preference categories, which do not require a labor certification
Employment-Based First Preference (EB-1): Priority Workers
There are three groups in the 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 a shortage of US workers. Unfortunately, not very many people are eligible for the first preference category.
Employment-Based Fourth Preference (EB-4): Religious Workers and Other Special Immigrants
Although religious workers must have employers, they do not have to prove a shortage of qualified US workers. However, the rules are very specific to the requirements that must be met to be classified as a religious worker. There are a few other special immigrant categories, but they have very limited application.
Employment-Based Fifth Preference (EB-5): Investors
The law provides that a person who invests one million dollars in a new commercial business may immigrate to the US. However, the business must also create jobs for at least ten US 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 $1.8 million investment must increase the business’s value by at least 40%. The expanded company must employ at least 40% more persons or an additional ten persons, whichever is higher.
An investor may qualify with only $900,000 if the business is in an area of high unemployment or a rural area. However, all 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 USCIS to establish that the business has survived the previous two years, that the required capital was invested, and that the required number of US 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 US Through Investment?
OBTAINING A GREEN CARD AS A REFUGEE OR POLITICAL ASYLEE
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, most refugees and asylees come from relatively few countries where political conditions allow for the granting of political asylee/refugee status.
OBTAINING A GREEN CARD THROUGH THE DIVERSITY VISA LOTTERY PROGRAM
Congress has created a diversity lottery program allowing 55,000 people to immigrate to the US per year. Under a lottery-type procedure, nationals from countries with low rates of immigration to the US may apply.
Countries with low immigration rates to the US are countries where 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.
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.
OTHER WAYS TO IMMIGRATE
Cancellation of Deportation is available to persons who have been in the US for more than ten years and are in deportation proceedings before an Immigration Judge.
You must prove that there would be an exceptional and extremely unusual hardship on a US citizen or permanent resident spouse, parent, or child if the Judge required you to leave the US. Such hardship is difficult to prove. However, if you convince the Judge, you will be allowed to stay in the US as a permanent resident. If you do not, the Judge will order you to leave the US.
A registry is available to people who have been in the US since before 1972 but have never filed papers to immigrate to the US.
- Persons who have worked with or for the Central Intelligence Agency
- Certain Panama Canal Zone employees
- Persons who have worked for fifteen years for the US government abroad
- Persons who have had or will have twelve years of active duty in the US military
DELAYS IN IMMIGRATING
There are currently many more eligible people to immigrate to the US than there are visas available. Therefore, some people will have to wait until future years to immigrate.
For more information, see How Long Does It Take to Immigrate to the US?
The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.
This answers most of the frequently asked questions which we receive in our office. If, after reading this, you have questions about immigrating to the US or any other immigration matters, please call Litwin & Smith at and arrange a consultation at either our South San Francisco or Santa Clara office. There is an initial consultation fee for the first half-hour.
SOURCES
USCIS, Green Card Eligibility Categories, https://www.uscis.gov/green-card/green-card-eligibility-categories
