To obtain Permanent Resident Status, a person must generally be eligible in an immigrant category and be admissible to the US. Certain present or past conduct including, for example, drug abuse, serious criminal conduct, giving false information to the immigration authorities or receipt of welfare assistance can create admissibility problems. Some people may obtain Permanent Resident Status directly from the INS while in the US - this is called Adjustment of Status. Permanent Residence can also be obtained through the immigrant visa process at a US consulate or embassy outside the US - this is called Consular Processing.
There are three employment-based preference categories containing eight sub-categories for employment-based permanent immigration. These new categories replaced the prior Third Preference ("Professional") category and Sixth Preference ("Other Skilled and Unskilled Workers") category.
Employment-Based First Preference
Sub-category 1(a)(Extraordinary Ability) Certain immigrants with "extraordinary ability and achievements in the arts, sciences, business or athletics" who intend to enter the US to continue to work in their field. This does not require a job offer or Labor Certification by a US employer.
Sub-category 1(b)(Outstanding Professors and Researchers) Certain immigrants with at least three years experience in teaching or research in their field entering a tenured or tenure-track or "comparable research position" in academics or private industry. This does not require a Labor Certification.
Sub-category 1(c)(Multinational Executives or Managers) Certain executives or managers with at least one year of qualifying experience as an overseas executive or manager within the past three years with their sponsoring employer. This does not require a Labor Certification.
Employment-Based Second Preference
Sub-category 2(a)(Advanced Degree Professionals) Certain members of the professions holding advanced degrees (Masters degree or higher, or the equivalent) who are sponsored by a US employer. This category requires a Labor Certification approved by the Department of Labor. However, if the applicant can establish that their admission will be "in the national interest" a Labor Certification is not required. In some cases, "self-employed" individuals may qualify in this category.
Sub-category 2(b)(Exceptional Ability) Certain immigrants with exceptional ability in the arts, sciences, or business who are sponsored by a US employer. This category generally requires a Labor Certification approved by the Department of Labor. However, if the applicant can establish that their admission will be "in the national interest" a Labor Certification is not required. In some cases self-employed individuals may qualify in this category.
Employment-Based Third Preference
Sub-category 3(a)(Professionals) Members of "professions" who are sponsored by a US employer. Labor Certification is required. In general, a profession is an occupation which has as a minimum requirement a four-year US college degree in a field specific to that occupation.
Sub-category 3(b)(Skilled Workers) Workers whose jobs require a minimum of two years of specific training or experience who are sponsored by a US employer. Labor Certification is required.
Sub-category 3(c)(Other Workers) Workers whose jobs require less than two years of specific training or experience who are sponsored by a US employer. Labor Certification is required. Generally, workers in this category can anticipate a wait of ten years or more before they will be eligible to immigrate.
Each position for which a Labor Certification is required must be approved by the US Department of Labor as a position for which there is a "shortage" of available qualified US workers. The employer-sponsor is customarily required to undertake a detailed government-monitored advertising and recruitment process involving the employer, the State Employment Service in the state where the job will be performed and the Federal Department of Labor to establish that there is "a shortage of qualified, available US workers" for the position. The Labor Certification process is complicated and often takes six to twelve months or more to complete. This process is subject to some uncertainty and delay. A typical case currently has perhaps a 50-60% probability of approval. However, the success of any particular case may be significantly better or worse than 50-50 and is very dependent upon the facts of the case, local labor market conditions, the quality and extent of documentation, compliance with applicable government regulations and the well-known vagaries of the labor-certification process. In general the best applications are characterized by employers and job candidates who are strongly committed to an employment relationship in a qualifying "shortage" position, and who are persistent, patient, and thorough enough to carefully comply with the technically detailed labor certification process. "Special Handling" rules also apply to certain college and university teachers. Many, if not most, applicants for Labor Certifications seek the assistance of an experienced business immigration lawyer.
In a few cases it is possible to obtain a "waiver" of the advertising and recruitment requirements or to obtain a pre-approved Labor Certification. Currently, two categories of pre-approved Labor Certifications exist: Schedule A, Group I for registered Nurses and Physical Therapists, and Schedule A, Group II for persons of "Exceptional Ability."
"Employer Sanctions" are a nickname for part of the November 1986 Immigration Reform and Control Act requiring employers to hire only US citizens or non-citizens with INS employment authorization and to complete I-9 forms for every new employee hired after November 1986. Generally, the I-9 Form must be completed by both the employer and worker within three days of the employees first day on the job. All US employers are required to comply with this law. Employers who fail to comply with the law can be fined hundreds or thousands of dollars or, in extreme cases, subject to criminal prosecution. Even employers who have only US citizen workers can be fined thousands of dollars for "paperwork violations."
Overcautious employers cannot safely comply with the law by requiring "too much documentation" or by demanding that workers produce any particular type of work authorization (e.g. a "Green Card") or by hiring only US citizen workers because they may be prosecuted by the US Justice Departments newly-created Office of Special Counsel for immigration -related employment discrimination.
This newly-created category enables certain immigrants who make a new investment of at least $500,000 to $1,000,000 or more in a qualifying US business to obtain permanent residence. The investment can be in any type of business but must create at least 10 full-time permanent jobs for US workers to qualify. The investment does not have to be 100% in cash so long as the applicant has total assets "at risk" in the enterprise of at least $500,000 to $1,000,000 in total value. This category is conditional for the first two years of the investment.
The non-immigrant categories are sometimes referred to as either statuses or visas, but a visa is not the same thing as a status.
What is a visa? A visa represents only permission to seek entry to the US. It does not guarantee admission to the US. Visas are available only from the US consulates and embassies outside the US. The written evidence of a visa is a visa stamp in a passport. A visa may still be valid even though the passport it is stamped into has expired. A visa only allows a person permission to come to the US to try to get a "status" from the INS at the border or arrival airport.
What is a status? A status is an official immigration category assigned by the INS to a non-citizen who is present in the US. A status is available only from the INS inside the US or at one of the small number of INS pre-flight inspection offices outside the US (e.g. Toronto, Canada). The written evidence of a status is usually on a small white card called an "I-94" that is usually issued by the INS at the border or arrival airport at the time a non-citizen comes into the US.
In many cases, a persons status in the US may be changed or extended by the INS without the need to get a new visa. Usually, a persons current status in the US is more important than a visa in determining whether that person may stay or work in the US. In certain cases, it may be possible to obtain a visa or a visa extension without leaving the US.
Non-citizens can obtain US citizenship through a process called naturalization. The naturalization/citizenship process is primarily the responsibility of the INS with some involvement by the US District Courts.
With rare exceptions, only persons who are already in Permanent Resident status are eligible to apply for citizenship. Anyone who has been a permanent resident for at least five years may be eligible to apply for citizenship. Spouses of US citizens can become eligible to apply for citizenship after only three years as a permanent resident.
The additional basic eligibility requirements for citizenship (some knowledge of the English language and the US government system) are not difficult for most people to meet. Everyone who is eligible for citizenship should consider becoming a citizen. Although there is no requirement that anyone ever move from permanent resident status to citizenship, there are considerable immigration advantages and virtually no immigration disadvantages to citizenship status.
The Family category requires sponsorship by a close relative of the applicant who is already a US citizen or permanent resident ("Green Card" holder).
Permanent Residents may sponsor their spouses, children, and adult unmarried sons and daughters for Permanent Residence. Depending upon local processing times at the INS and consular offices concerned and depending upon the visa category and country of birth of the person being sponsored, processing including visa waiting time for these types of cases can take from a few weeks to several years.
US citizens may sponsor their spouses, children under 21 years old, and their parents (if the sponsor is over 21 years old) for permanent residence, subject only to local delays of a few weeks to a few months.
US citizens may also sponsor their children over the age of 21 years old, whether married or not and their brothers and sisters (if the sponsor is over 21 years old). Depending upon local processing times at the INS and consular offices concerned and depending upon the visa category and country of birth of the person being sponsored, processing these types of cases can take from a few weeks to several years. Brothers and sisters of US citizens face particularly long waits in the visa quota line. A sponsorship newly filed today by a US citizen for his brother or sister, for example, is likely to result in a wait of more than 20 years for an immigrant visa number at current rates of visa issuance.
Over the years, we have found some basic principles helpful to our clients in immigration matters. Here are a few thoughts to keep in mind:
It is very important to always give accurate information to the immigration authorities. Few things cause more difficult problems in immigration cases than giving wrong information to the government.
Immigration law can be very complicated.
Remember that every case is different in some ways from every other case. A well-advised person with a medical problem would not blindly take someone elses medical prescription without consulting their own doctor. Likewise, no one should blindly follow someone elses immigration example without consulting their own immigration law counsel. "Off the street" advice from well-meaning friends can be deceptively simple and simply wrong.
The immigration law system is constantly changing. Sometimes the changes are large, sometimes small. Sometimes fast. Sometimes slow. But whatever the change, if it affects your case, it is important for you to know about it.
The American immigration system tends to reward those who are well-informed, patient, honest, and persistent in pursuit of the immigration benefits for which they may be eligible.
Borene Law Firm, P. A.