Archives for May 2014

Getting a Green Card: Employment-Based Immigration

Every year, thousands and thousands of people enter the U.S. to find work. Some people enter the country illegally. Others come in legally through a non-immigrant visa (for example, a tourist or student visa), and then violate the terms of the visa by, for example, overstaying or finding work “under the table.” Many Americans resent foreign citizens who seek work illegally in the U.S. as “lawbreakers” and see their illegal status as sufficient reason for deportation. If there is a legal process for working in the U.S.—the argument goes—why should the U.S. put up with illegal immigration?

An important fact, often forgotten in this discussion, is that most people in the world probably would not qualify to immigrate to the U.S. As mentioned in our earlier blog entries, federal immigration law dictates that foreign citizens must fit into a particular immigration category to be able to legally enter, live, and work in the U.S. For all the talk about how “globalized” our 21st-century world is, immigration amongst most countries is still highly regulated.

Immigration based on employment is no different. Although there are several types of employment-based immigrant visas, they are (1) limited in number, and (2) usually require both the foreign national and the U.S. employer to meet very specific requirements. Generally, the U.S. employer must file the petition on behalf of the foreign national, and show that there are no U.S. workers available to fill the particular position for which the foreign national is being hired. This is not an easy burden to meet. The main employment-based immigrant categories are:

EB-1: Multinational executives, outstanding professors and researchers, and persons of “extraordinary ability” in the sciences, arts, education, business, or athletics.

EB-2: Foreign nationals with an “advanced degree” (Masters’ or higher) or an “exceptional ability” in the sciences, business, or arts. Usually, EB-2 immigrants must also have a job offer from a U.S. company.

EB-3: Professional workers with a Bachelor’s degree (or foreign equivalent), “skilled workers” for positions that require at least two years of training or experience, or “unskilled workers” for positions that require less than two years training or experience. All EB-3 immigrants must also have a job offer from a U.S. company.

The EB-4 and EB-5 categories are slightly different. EB-4 immigrants are considered “special immigrants,” and include religious workers and persons services as translators with the U.S. Armed Forces. The EB-5 category of immigrants is perhaps the most controversial and deserves its own full blog entry. Rather than getting a Green Card through a job offer, EB-5 immigrants get a Green Card through investing money (between $500,000 and $1mi) in a U.S.-based enterprise that creates U.S. jobs.

Note that these are immigrant visa categories. There are also several non-immigrant visas that authorize foreign nationals to work in the U.S., which are limited in time and usually do not provide a path to citizenship.

Getting a Green Card: Family-Based Immigration

The most common path to getting a Green Card (and thus becoming a lawful permanent resident) is family-based immigration. Sometimes the person who wants to immigrate is outside the U.S. and wants to come in through consular processing (i.e. getting an immigrant visa); other times the person is already in the U.S. and needs an adjustment of status. Although the paperwork in each scenario is different, they both require the prospective immigrant to be sponsored by a family member who resides in the U.S. There are two major types of family-based immigration: (1) through immediate relatives and (2) through the family preference system.

The immediate relative path is easier. There is an unlimited number of entries under this category every year, which means that the waiting period for processing is short (usually 6 to 12 months). The catch is that you can only get a Green Card this way if you are an immediate relative of a U.S. citizen. To be an immediate relative, you usually must be:

(1) the spouse of a U.S. citizen;
(2) the unmarried child, under the age of 21, of a U.S. citizen; or
(3) the parent of a U.S. citizen (but only if the U.S. citizen is over the age of 21).

Other categories include widows, adopted children, and stepchildren/stepparents of U.S. citizens, under certain circumstances.

If the person who wants to immigrate is not the immediate relative of a U.S. citizen, the family preference category applies. Family preference applications are divided into four degrees of preference:

(1) First Preference: unmarried adult child (over the age of 21) of a U.S. citizen
(2) Second Preference: spouse, minor unmarried child (under 21), and unmarried adult child of a lawful permanent resident
(3) Third Preference: married child (of any age) of a U.S. citizen
(4) Fourth Preference: brother/sister of a U.S. citizen, and any spouse and children, if U.S. citizen is over the age of 21.

The problem is that family preference immigration is subject to a quota, meaning there is a maximum number of persons who may be granted immigration status under the family preference categories any given year. As a result, immigration based on these categories can take years, or even decades! And it is impossible, for example, for a U.S. citizen to sponsor relatively close relatives such as a grandparent, uncle/aunt, nephew/niece, cousin, or in-laws for a family-based Green Card. Also, a legal permanent resident may not sponsor any brothers or sisters—at least not on the basis of that familial relationship.

The U.S. government releases a bulletin every month containing the estimated waiting times for immigrants based on family preference. If you or someone you know is curious about family-based immigration, please call or e-mail us to schedule a free and confidential half-hour consultation.