Lawful permanent resident status, or Green Card as is universally known, allows individuals who are not citizens of the United States to permanently live and work in the U.S., and enjoy much of the same rights as citizens. However, lawful permanent residents may lose their status upon commission of certain acts or criminal violations, and do not categorically enjoy the full extent of constitutional rights. Lawful permanent residence is generally acquired through employment (including investment), family relations, asylum, or the diversity lottery system.

Employment, Investment, and Professional Immigration

Family-Based Immigration

Asylum-Based Permanent Residence

Victims of Domestic Abuse

Diversity Lottery

Employment Based Immigration

The various employment-based immigrant categories are generally divided as follows:

EB-1 Priority workers

• Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
• Foreign national that are outstanding professors or researchers
• Foreign nationals that are managers and executives subject to international transfer to the United States

EB-2 Professionals with advanced degrees or persons with exceptional ability

• Foreign nationals of exceptional ability in the sciences, arts or business
• Foreign nationals that are advanced degree professionals
• Qualified foreign physicians who will practice medicine in an area of the U.S. which is underserved.

EB-3 Skilled or professional workers

• Contingent on the approval of a Permanent Labor Certification (PERM)
• Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category)
• Foreign national skilled workers (minimum two years training and experience)
• Foreign national unskilled workers

EB-4 Special Immigrants

• Religious workers
• Employees and former employees of the U.S. Government abroad

EB-5 Investors/Employment Creation

• Qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise

The above categories are governed by a preference-based system of quotas administered by the Department of State as follows:

• First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
• Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
• Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".
• Fourth : Certain Special Immigrants: 7.1% of the worldwide level.
• Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

The most widely used employment-based preference categories, the EB-2 and EB3 (second and third preferences), consist of a three-step process, the first of which involves a Permanent Labor Certification (now widely referred to as PERM) application to the Department of Labor.

Cases that do not require filing of a Permanent Labor Certification with the Department of Labor include: EB-1 Category, including Multinational Executives and Managers; Occupations in shortage categories listed under 20 CFR 656.15, commonly referred to as Schedule A cases; Religious Workers; Investors

top

EB-1 Eligibility and Filing

Individuals qualified for the EB-1 visa classification do not require labor certification and may file a petition directly with the USCIS. While the EB-1 worker of extraordinary ability may petition for himself or herself, the employer must file the petition for an outstanding professor or researcher and a multinational executive or manager.

Multinational Executives and Managers

A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the U.S. for at least one of the three years preceding the petition by a qualifying firm or corporation and seeks to enter the U.S to continue working for that firm, organization, or its affiliate, parent, or subsidiary. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

The petitioner must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad. Definitions of terms relevant to this EB-1 category are found in 8 CFR § 204.5.

Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics

The EB-1 category also applies to Individuals with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." To qualify, the individual must be one of "that small percentage who have risen to the very top of the field of endeavor.” For example, if a recipient of a major internationally recognized award, such as a Nobel Prize, would qualify for an EB-1 classification on that basis alone. Alternatively, one may qualify for EB-1 classification by satisfying at least three of the following criteria:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Membership in associations in the field which demand outstanding achievement of their members;
• Published material about the individual in professional or major trade publications or other major media;
• Evidence that the individual has judged the work of others, either individually or on a panel;
• Evidence of the individual's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
• Evidence of the individual's authorship of scholarly articles in professional or major trade publications or other major media;
• Evidence that the individual's work has been displayed at artistic exhibitions or showcases;
• Performance of a leading or critical role in distinguished organizations;
• Evidence that the individual commands a high salary or other significantly high remuneration in relation to others in the field;
• Evidence of commercial successes in the performing arts.

If the above criteria do not apply Beneficiary may submit "other comparable evidence.”

Foreign national that are outstanding professors or researchers

Outstanding professors and researchers are those recognized internationally for their outstanding academic achievements in a particular field. In addition, an outstanding professor or researcher must have at least three years experience in teaching or research in that academic area, and enter the U.S. in a tenure or tenure track teaching or comparable research position at a university or other institution of higher education. If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field.

Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following:

• Receipt of major prizes or awards for outstanding achievement;
• Membership in associations that require their members to demonstrate outstanding achievements;
• Published material in professional publications written by others about the individual's work in the academic field;
• Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
• Original scientific or scholarly research contributions in the field;
• Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

top

EB-2 Eligibility and Filing

The EB-2 classification includes: individuals who are "members of the professions holding advanced degrees or their equivalent" and those "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States."

A petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree (MA; MS; PhD; M.D.) and the Beneficiary possesses such a degree or its equivalent. The petition must include documentation, such as an official academic record showing that the individual has the required advanced degree or an equivalent foreign degree, or an official academic record showing that he/she has a bachelor’s degree and at least 5 years of progressive post-baccalaureate experience in the specialty.

Qualified foreign physicians who will be practicing medicine in an area of the United States certified by the Department of Health and Human Services as underserved may also qualify for this classification.

In order to be classified as having exceptional ability in the sciences, arts, or business, the individual must provide documentation of three of the following:

• An official academic record showing the individual has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
• Letters documenting at least ten years of full-time experience in the occupation being sought;
• A license to practice the profession or certification for a particular profession or occupation;
• Evidence that the individual has commanded a salary or other remuneration for services which demonstrates exceptional ability;
• Membership in professional associations;
• Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

If the above standards do not apply to the petitioner's occupation, other comparable evidence of eligibility is also acceptable.

EB-2 petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor on Form ETA-750.

Individuals with exceptional ability in the sciences, arts, or business, may apply to waive the a job offer requirement (using Department of Labor Form ETA-750B) if such a waiver would be in the national interest.

top

Permanent Labor Certification

The following information and guidelines are provided by the U.S. Department of Labor.

A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker on a permanent full time basis. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's USCIS, the employer must obtain an approved labor certification from the DOL. The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Qualifying Criteria

• The employer must offer to hire the foreign worker as a full-time employee;
• The job opening must be bona fide, and available to U.S. workers;
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be narrowly tailored to the prospective worker's qualifications. Furthermore, the job opportunity must be offered and described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process for Filing

• Application - The employer must complete an Application for Permanent Employment Certification. The application must detail the job duties, educational requirements, training, experience, as well as other special skills necessary for the job, and include a statement of the prospective immigrant's qualifications.
• Signature requirement - Applications submitted by mail must contain the original signature of the employer, beneficiary, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, beneficiary, and preparer, if applicable, in order to be valid.
• Prevailing wage - Prior to filing the ETA 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
• Pre-Filing Recruitment Steps - All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
  The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
  The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
• Audits/requests for information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
• Retention of records - The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
• Online filing - The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
  The employer can access a user-friendly web site (www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification.
• Registration - To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System.
• Filing by mail - National Processing Centers have been established in Atlanta and Chicago. Employers submit paper applications to the processing center with responsibility for the state or territory where the job opportunity is located.
• Approvals - If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application.

The USCIS Petition - Form I-140

After approval of the labor certification, the employer must file an I-140 "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (USCIS). The employer then attaches the certified ETA Form 9089 to a completed USCIS Form I-140, along with the appropriate fees, and submits the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other USCIS specified documentation.

“Schedule A” Occupations

Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which there is a shortage of able, willing, qualified and available U.S. workers. The Department has determined that employment of foreign workers in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.

The occupations listed under Schedule A include:

• Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
• Professional Nurses - who (i) have a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) have passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or (iii) hold a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
• Sciences or arts (except performing arts) - Individuals (except for those in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An individual, however, need not have studied at a college or university in order to qualify for the Group II occupation.
• Performing arts - Individuals of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

An employer petitioning for a Schedule A worker must file an ETA Form 9089, in duplicate, with the USCIS, NOT with the Department of Labor or a SWA.

top

EB- 4 Religious Workers

To qualify as an EB-4 special immigrant religious worker, you must be a member of a religious denomination that has a non-profit religious organization in the United States. You must have been a member of this religious denomination for at least two years before applying for admission to the United States. You must be entering the United States to work:

• As a minister or priest of the religious denomination;
• In a professional capacity in a religious vocation or occupation for the religious organization (a professional capacity means that a U.S. baccalaureate degree or foreign equivalent is required to do this job); or
• In a religious vocation or occupation for the religious organization or its nonprofit affiliate. (A religious vocation means a calling or devotion to religious life. Taking vows can prove that you have a calling to religious life. A religious occupation is an activity devoted to traditional religious functions. Examples of religious occupations include, but are not limited to, cantors, missionaries, and religious instructors.)
• You must have been performing this religious work for the past two years, and demonstrate a record of remuneration.

top

EB-5 Immigration Through Investment

Overview

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a commercial enterprise.

Eligibility

Permanent resident status based on EB-5 eligibility is available to investors and their spouse and unmarried children. Eligible investors are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.

In general, "eligible individuals" include those:

• Who establish a new commercial enterprise by:
  • creating an original business;
  • purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
  • expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
• Who have invested -- or who are actively in the process of investing -- in a new commercial enterprise:
  • at least $1,000,000, or
  • at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB; and
• Whose engagement in a new commercial enterprise will benefit the United States economy and:
  • create full-time employment for not fewer than 10 qualified individuals; or
  • maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who invest in a CIS-designated “Regional Center.”

A "Regional Center" is an entity, organization or agency that has been approved as such by the USCIS; focuses on a specific geographic area within the United States; and seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. While the standards governing Investments in Regional Centers are in some aspects less stringent than those applied generally to investment cases (such as day-to-day management and retention of 10 employees), investors must: (1) demonstrate that a "qualified investment" (see below) is being made in an approved Regional Center; and (2) show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

top

Family Based Immigration

Spouses, Children, and Parents of U.S. Citizens (Immediate Relatives)

Family-Based Preference System

Fiancé(e)s and Spouses of U.S. Citizens (K-1 and K-3 Visas)

top

Immediate Relatives

Spouses of citizens, children (under 21 years of age and unmarried) of citizens, and parents of citizens 21 years of age or older are considered “immediate relatives” under immigration laws, and as such are entitled to special benefits. The most notable advantages of qualifying as an immediate relative involve immediate availability of visa numbers, and exemptions from certain grounds of inadmissibility (ineligibility) including unlawful status/stay for applicants who entered the U.S. lawfully and those who otherwise qualify under INA 245(i).

top

Family-Based Preference System

All family-based petitions, other than those for immediate relatives, are subject to a quota system as follows:

• First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
• Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
  • A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
  • B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
• Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
• Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

The monthly progress of the above categories can be monitored through
the Department of State’s Visa Bulletin.

top

K-3 Spouses of US Citizens and their Children

Background

The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category that allows the spouse or child of a U.S. citizen to be admitted to the United States in a nonimmigrant category. The admission allows the spouse or child to complete processing for permanent residence while in the United States. It also allows those admitted in the new category to receive employment authorization while they await processing of their permanent residence application.

A person may receive a K-3 visa if:

The person has concluded a valid marriage with a citizen of the United States; has a relative petition (Form I-130) filed by the U.S. citizen spouse for the person; seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status, and has an approved Form I-129F, Petition for Alien Fiancé, forwarded to the American consulate abroad where the fiancé wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place if the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the application should be processed at the consulate with jurisdiction over the current residence of the foreign spouse.

Unmarried children (under 21 years of age) of a K-3 beneficiary qualify for a K-4 visa.

K-1 Fiancé(e)s of U.S. Citizens and their Children

A U.S. citizen who plans to get married to a foreign national in the United States may petition for K-1 classification for his/her fiancé(e). The U.S. citizen petitioner and his/her fiancé(e) must be free to marry. In other words, both must be unmarried, and/or demonstrate that any previous marriages have ended through divorce, annulment or death. The U.S. citizen petitioner must have met with his/her fiancé(e) in person within the last two years before filing for the fiancé(e) visa. This requirement can be waived only if such meeting in person would violate long-established customs, or if the requirement would create extreme hardship for the U.S. citizen. A K-1 fiancé(e) and the U.S. citizen petitioner must marry within 90 days of the fiancé(e) entering the United States.

A K-1 fiancé(e)'s unmarried children, who are under age 21, qualify for dependent visas.

top

Asylee or Refugee Seeking Lawful Permanent Resident (LPR) Status

Asylees and refugees may apply for permanent resident status after one year of presence in the U.S. as asylees or refugees.

To qualify, a refugee must:

• have been physically present in the U.S. for at least one year after being admitted as a refugee;
• or be the spouse or child of a refugee;
• have not abandoned refugee status; and
• have not had refugee admission terminated.

To qualify, an asylee must:

• have been physically present in the U.S. for at least one year after being granted asylum;
• continue to meet the definition of a refugee;
• have not abandoned asylee status; and
• not be firmly resettled in any foreign country.

top

Victims of Domestic Violence

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge.

Those who qualify include:

• Spouse: a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on the battered parent’s petition as derivative beneficiaries.
• Parent: a parent of a child who has been abused by a U.S. citizen or lawful permanent resident spouse. Children (under 21 years of age and unmarried), including those who may not have been abused, may be included on the parent’s petition as derivative beneficiaries, if they have not filed their own self-petition.
• Child: A battered child (under 21 years of age and unmarried) who has been abused by his/her U.S. citizen or lawful permanent resident parent.

The self-petitioning spouse:

• Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse;
• The abuse must have occurred in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States;
• Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage;
• Is required to be a person of good moral character; and
• Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

The self-petitioning child:

• Must qualify as the child of the abuser as "child" is defined in the INA for immigration purposes.
• Any relevant credible evidence that can prove the relationship with the parent will be considered.

top