NEWSLETTER SIGNUP

Obtain the latest updates
from Hulka Porter.
Enter Your Email Address

US Legal Services Immigrant (“Green Card”) Visas

  1. General
    1. Definition of U.S. Permanent Residence
    2. Benefits
    3. Restrictions
  2. U.S. Immigration Options – Process and Qualifications.
    1. Family Sponsored U.S. Immigration and FAQ’s
    2. Fiancé K-1 Visa leading to U.S. Immigrant Status
    3. Employment Based U.S. Visas
      1. First Preference (EB-1)
      2. Second Preference (EB-2)
      3. Third Preference (EB-3)
      4. Fourth Preference (EB-4) Religious workers
      5. Fifth Preference (EB-5) Investors
    4. Diversity Based Immigrants (Lottery)
    5. Refugees and Asylees
    6. Persons Not Subject To Limitations.


1. General

1a. Definition:
U.S. permanent residence (a “green card”) enables the status of being lawfully accorded the privilege of permanently residing in the U.S. as an immigrant.
[INA § 101(a) (20), 8 U.S.C. § 1101 (a) (20)]
1b. Benefits:
Lawful U.S. permanent residence (immigrant or “green card” status) enables a foreign national to permanently reside within the U.S. and pursue non restricted lawful employment within the U.S. (with exceptions)
[INA § 101(a) (20), 8 U.S.C. § 1101 (a) (20)]
1c. Restrictions:
i. Lawful U.S. permanent residence is not the same as U.S. citizenship. With exceptions, a foreign national must reside in the U.S.as a lawful U.S. permanent resident for five years before applying tobecome a “naturalized” U.S. citizen. Those foreign nationals who aremarried to U.S. citizens may apply to become a naturalized U.S. citizenafter three years of concurrent lawful U.S. permanent residence andmarriage to a U.S. citizen.

ii. Lawful Permanent Residents (LPR’s) may be deported for the commission of certain criminal offences such as trafficking in drugs.
[INA § 237 (a) (2) (B), 8 U.S.C. § 1277 (a) (2) (B)]

iii. U.S. Lawful Permanent Residence (LPR) may be deemed abandoned if there is an absence of intent coupled with objective circumstances. Although a person may have other residences, the U.S. residence must be the permanent one, subject to limited exceptions.

iv. LPR’s do not have an automatic right to re-enter the U.S. Such a right only accrues to a U.S. citizen. The LPR must demonstrate s/he is admissible upon each entry.
[INA § 101 (a) (13) (c), 8 U.S.C. § 1101 (a) (13) (c)]

Questions? please click here to contact us
^ top

2. U.S. Immigration Options – Process and Qualifications.

The U.S. immigrant selection system as codified under INA § § 201-209, 8 U.S.C. §1151-1159 are divided into five separate parts (options). Qualifications attendant with one option may not normally be used to advantage with respect to another option. The five options are listed as follows:

a. Family sponsored U.S. immigration;
b. Employment based immigrants;
c. Diversity immigrants;
d. Refugees and asylees; and
e. Persons not subject to limitations

Questions? please click here to contact us
^ top

2a. Family Sponsored U.S. Immigration and FAQ’s

U.S. immigration law is legislated under the U.S. Immigration and Nationality Act (INA) and further codified under the Code of Federal Regulations (CFR).

The INA permits certain U.S. citizens or lawful permanent residents (LPR’s) to sponsor qualifying family members for LPR status. The qualifying relationships are strictly limited and “per country” numerical caps upon the number of immigrants permitted U.S. visas are also imposed by law.

While immediate relatives (IR’s) are part of the overall cap on immigration, they are not subject to the numerical limit of 480,000 because IR’s are deducted from the overall cap.

Qualifying Family Relationships
Not all family relationships serve as a basis to file an application for U.S. permanent resident status. There are two basic categories; Immediate Relatives and Preference Immigrants. These two basic family-based immigration categories are further defined as follows:

A. Immediate Relatives (no limit upon number of visas available)

  1. Spouses of U.S. citizens;
  2. Minor children (under 21) of U.S. citizens;
  3. Parents of U.S. citizens, provided petitioner is at least 21 years of age;
  4. Spouses of deceased U.S. citizens who were married for at least twoyears at the time of their citizen spouses deaths (provided couple wasnot legally separated at that time and provided immigrant petition filedwithin 2 years of death).

B. Preference Immigrants (visa number limits imposed)

  1. First Preference: Unmarried sons or daughters of U.S. citizens (thosewho are 21 years of age or older);
  2. Second Preference:
    a. Spouses or children of alien lawfully admitted for permanentresidence (Green Card holders); or
    b. Unmarried sons or unmarried daughters of aliens lawfully admitted for permanent residence.
  3. Third Preference: Married sons or daughters of citizens of the United States.
  4. Fourth Preference: Brothers or sisters of citizens of the UnitedStates, if such citizens are at least 21 years of age.
  5. Derivative Beneficiaries: The spouse or child of the principal alienunder the family-sponsored preference is entitled to the same statusand order of consideration, if accompanying or following to join thespouse or parent.
Questions? please click here to contact us
^ top

FAQ's

FAQ #1. How do I file a family-based immigrant petition?
U.S. citizens or permanent residents who seek to sponsor one of the qualifying family-based immigrants listed above must file an I-130 Immigrant Petition for Alien Relative with the U.S. Department of Homeland Security, Citizenship and Immigration Service (USCIS) RegionalService Center (RSC) having jurisdiction over the state of intendedresidence. Different filing procedures and options exist for relatives whomay already be in the United States. For those relatives residing outsideof the United States, the petition is filed with the USCIS and onceapproved, an application for Immigrant Visa is processedthrough thenearest United States Embassy or Consulate providedthat numbers are available for the immigrant.

The USCIS’sfunction in the process is to determine whether the necessary familyrelationship exists. The Embassy/Consulate abroad mustdeterminewhether the immigrant meets admissibility standards (criminalandmedical) before issuing an Immigrant Visa to the immigrant.

Questions? please click here to contact us
^ top

FAQ #2. May I file a family-based application for my relative if I do not reside in the United States at present?
Yes. Applications may be filed pursuant to legislation implemented in 1998. However, the Immigrant Visas will not be issued to family-based immigrants unless and until the citizen or permanent resident sponsor demonstrates evidence of having a U.S. domicile. In practice, the I-130 Immigrant petition may be filed at a time when the sponsor actually resides outside the of United States – yet confirmation of a legal domicile inside the United States must be provided. The U.S. Embassy or Consulate abroad may not issue Immigrant Visas until proof of domicile has been established.

Questions? please click here to contact us
^ top

FAQ #3. Must I provide proof of ability to support my relative?
Yes. Under current legislation all family-based applications must be supported by an "Affidavit of Support" from the U.S. citizen or permanent resident sponsor. The Affidavit of Support must demonstrate that the sponsor has income or assets or a combination thereof greater than 125% of the stated poverty guidelines. U.S. tax returns from the Sponsor for each of the three years preceding the visa interview in which the sponsor was obligated to file tax returns will be required.

Questions? please click here to contact us
^ top

FAQ #4. What alternatives do I have if, as the Sponsor, I have insufficient ncome to meet the Affidavit of Support requirements?
A family member may be utilized as a joint sponsor – yet the family member will be obligated jointly and severally.

Questions? please click here to contact us
^ top

FAQ #5. What is the difference between I-485 Adjustment of Status and Consular processing?
We are often questioned as to the restrictions and benefits involved with the alternative methods of processing one’s I-130 initial approval through to the actual issuance of a “green card.” The analysis herein is not meant to be all inclusive for much depends upon the foreign nationals individual circumstances. Careful analysis is required in each instance. The following is a general outline.

Fundamentally, I-485 Adjustment of Status involves filing the petition and processing entirely within the U.S., adjusting from lawful non-immigrant to immigrant status. In order to do so, one must initially lawfully enter the U.S. as a non-immigrant and remain within the U.S. (with few exceptions) until the adjustment interview and approval are complete.

Distinct, the I-130 Consular process involves filing the I-130 petition at the USCIS Regional Service Center (RSC) having jurisdiction over the State of intended residence. Once the USCIS initially approves, the application is channelled through the National Visa Center (NVC) where the Affidavit of Support must be approved. The application is then directed to the U.S. Consulate/Embassy having jurisdiction over the foreign nationals place of birth or where the foreign national has lawfully resided for a minimum of six (6) months.

Example FAQ #5

A Canadian and U.S. citizen husband and wife reside together in Canada and have decided to move to the U.S. The U.S. citizen spouse must sponsor the Canadian citizen spouse via an I-130 Family Based Petition.

The U.S. citizen must establish place of residence in the U.S. The U.S. Consular personnel are understanding as to the transition requirements, so the U.S. citizen sponsor may continue to reside in Canada in the interim until NVC processing is at hand. The I-130 petition is filed at the USCIS RSC having jurisdiction over the couple’s State of intended residence. The processing times vary with the RSC involved given backlogs.

Note, if the U.S. citizen sponsoring spouse has not filed IRS tax returns while residing within Canada, a minimum of three (3) years of retroactive returns must be filed in order to meet Affidavit of Support financial requirements. This notwithstanding, U.S. citizens are required to file income tax returns annually, irrespective of residence within or outside the U.S. We recommend consultation with a qualified bi-national accountant.

Affidavit of Support


Once the I-130 Petition is initially approved at the RSC, it will be transferred to the National Visa Center (NVC) for Affidavit of Support consideration. At this stage the U.S. petitioner must file the Affidavit of Support – serving to confirm his/her place of U.S. residence, U.S. citizenship and financial ability to support the spouse and dependants. The NVC will be concerned with the U.S. citizen sponsor’s income over the previous twelve (12) months. Income and assets may be considered. The purpose is to obligate the U.S. citizen sponsor to the financial support of the foreign national spouse and dependant children for a period of ten (10) years – irrespective of separation or divorce. As such, if the beneficiary spouse were to require U.S. government sponsored assistance, the U.S. citizen sponsor is obligated to reimburse the involved government entity.

Failing financial capacity to satisfy the Affidavit of Support requirements, a joint sponsorship involving the same commitment from a qualifying joint sponsor, may be required.

Subsequent to NVC processing, the petition is transferred to the designated/applicable U.S. Embassy/Consulate abroad. An interview will be scheduled. The purpose of the interview is to:

- assess the bona fines of relationship;
- confirm medical admissibility; and
- screen criminal conviction/security interest history.

Once Consular approved, the beneficiary and dependant children are permitted to move to the U.S. within six (6) months thereafter (with few exceptions). Entry must be executed at a USCBP Land Port of Entry (POE) or airport. Upon doing so, the Consular/Embassy approval documents must be presented together with valid (unexpired) passport. An I-551 stamp will be placed within the passport – serving to signify lawful U.S. permanent residence until the actual U.S. resident alien card is issued.

Helpful Points

Children
If children are involved, it is very important to file the I-130 petition,listing all dependants, well in advance of the eldest child’s twenty first(21st) birthday. Subsequent to reaching the age of 21 a dependant childmay no longer qualify. This is general information – subject to a numberof exceptions and limitations.

Children born of another relationship must be processed separately withseparate I-130 petitions and child exploitation considerations must beaddressed at the outset. The child’s non-custodial parent musteitherprovide a notarized letter serving to confirm their consent to thechild’s move to the U.S. or a court of competent jurisdiction must issue its order in support of the move. Most western jurisdiction courts will beconcerned with the non-custodial parents ability to gain continuing,unimpeded access to the child.

K-3 Visa
I-130/Consular processing times vary dependant upon the RSC andConsular backlogs. The utility of the interim K-3 is questionable in someinstances, subject to the client’s needs and processing backlogs. Inthat the K3 visa enables the foreign national spouse to move to the U.S. in lawful non-immigrant capacity, the K-3 petition may only be filed oncetheappropriate RSC I-130 Notice of Receipt (NOR) is issued. The NORwill give indication of processing projections. Based upon theprojections, it is our firms policy to consult with the client as to thevalue of the K-3. It is inappropriate when considering the utility of the K-3 to suggest to a prospective client it’s use unless reconciled with thetotal processing time attendant with the core I-130 spousal based petition. Knowing that most families wish to commence their livestogether in the U.S. as soon as possible, unethical practitioners will sell the client uponthe K-3 knowing that in actuality the K-3 can, in someinstances, take as long to process as the core I-130 spousal basedpetition for the green card. In that the K-3 processing may only beinitiated after gaining the I-130 Notice of Receipt and the K-3processing involves lengthy administrative handling, our experience isthat the K-3 is often approved two (2) months in advance of “greencard” and sometimes afterward. The fact is that the K-3 petition is onlyworth the expense and added effort if an informed decision may be madeas to the total time involved with the I-130/Consular final approval.Should an interim K-3 approval enable a family to be together six (6) months or more within the U.S. before the Consular interview, then the K-3 petition may be warranted.

In and of itself, the K-3 is not a U.S. employment authorization, thoughone may apply for a U.S. open employment authorized document (EAD)once having lawfully entered the U.S. pursuant to the K-3 approval.

The K-3 does permit multiple U.S. entries.
Citizenship
A lawful permanent resident spouse of a U.S. citizen may apply for naturalized U.S. citizenship after having resided within the U.S. for three(3) years as a lawful U.S. permanent resident while concurrently marriedto a U.S. citizen sponsor. One is not required to relinquish theircitizenship of origin in order to acquire U.S. citizenship. Thisnotwithstanding, some countries deem their citizens to have relinquishedtheir citizenship upon the acquisition of another countries citizenship.While Canada and the U.S. do not enforce such a policy, citizens ofother countries should first check with their Consular citizenship servicessection before proceeding.
Tax Considerations
Our clients are strongly advised to seek the advice of a qualifiedmulti-national chartered accountant with respect to tax, assetassignments and accounting considerations. Referrals are available uponrequest.

Questions? please click here to contact us
^ top

FAQ #6. May a foreign national relative depart the U.S. while in the midst ofI-485 adjustment of status?
No. Careful planning is very important. With few exceptions, a foreign national who has been lawfully admitted into the U.S. in the first instance should plan to stay until his/her LPR status (and green card) is secure. Should interim departure be required, one may apply for a USCIS approved Travel/Parole Document

Example FAQ #6

A foreign national enters the U.S. pursuant to lawful non-immigrant status such as a B visitor for pleasure or H-1B specialty occupation employee of a U.S. business. At the time of initial entry, the foreign national does not intend to become a U.S. permanent resident.

The foreign national meets, falls in love with a U.S. citizen and marries in the U.S. The couple may then file the spousal based I-130 petition and I-485 adjustment application with the applicable RSC. By filing for adjustment, the foreign national spouse is ultimately requesting permission to change his/her status from that of a non-immigrant to an immigrant (LPR) of the U.S. The internal U.S. adjustment process can take in excess of two (2) years to complete, depending upon backlogs. In the interim, the foreign national is restricted by law from departing the U.S. Absent a pre-approved Travel Document/Parole, the foreign national will be deemed to have abandoned his/her application for adjustment and denied re-entry. If so, he/she may seek “deferred inspection” or remain outside the U.S. until the I-130 approval is channeled successfully through the appropriate Consulate/Embassy abroad.

Obviously, the above scenario should be avoided. In the event of need to depart the U.S. while in the midst of an I-485 adjustment, one should first apply for and be approved for departure and return under the authority of a USCIS approved Travel Document.

While in the midst of adjusting status, the foreign national may also apply for an open (non employment specific) Employment Authorization Document (EAD). The EAD enables unrestricted lawful U.S. employment.

Both the EAD and the Travel Document are usually issued in one (1) year increments.

I-130/Consular Processing
In many instances a married couple may be better off considering marriage abroad and processing via the Consulate/Embassy. Consular processing is often more expedient and less costly.

Example FAQ #6 : I-130/Consular Processing

A Canadian citizen is engaged to her U.S. citizen fiancé. The couple wish to marry and reside with one another in the U.S.

If the couple marries in Canada and return to the U.S. in order to commence their lives together, a capable USCBP Port of Entry (POE) Inspector will deny the Canadian citizens entry. Marriage enables the U.S. citizen to sponsor his/her spouse. Marriage in and of itself does not automatically entitle the foreign national to lawfully reside in the U.S.

Once married, the spousal based petition is filed at the RSC having jurisdiction over the State of intended residence. Once the RSC initially approves, the petition is transferred to the NVC for interim processing. At the NVC stage, an Affidavit of Support must be submitted by the U.S. citizen spouse – serving to confirm U.S. citizenship, residence within the U.S. and financial capacity to support.

The file is then transferred to the U.S. Consulate/Embassy abroad for final processing. In thecase of a Canadian citizen beneficiary spouse residing in Canada, the file is transferred to the U.S. Consulate in Montreal. An interview is scheduled. Prior to attending the interview, the beneficiary and his/her specified dependants must pass a medical examination.

Once consular approved, the foreign national may enter the U.S. and initiate LPR status.

Depending upon RSC and Consular backlog, the above stated process can take between one (1) and two (2) years. Knowing this, some act upon very bad advice to misrepresent their initial intent upon entering the U.S., indicating a purpose other than the actual one – to marry and remain within the U.S. Obviously, this is not recommended for doing so may be considered fraud/misrepresentation – resulting in denial of the spousal based petition LPR status, deportation and exclusion from the U.S. Do not sacrifice your future for a short term gain!

Given the processing delays involved with the Consular method, an interim K-3 approval may be considered. As well, there is no absolute prohibition against visiting one’s spouse in the U.S. while awaiting Consular approval. A USCBP Inspector will be concerned withwhat appears to be immigrant intent upon presenting for entry. Given the foreign national’s marriage to a U.S. citizen and immigrant petition in process, a USCBP POE Officer may deny entry – requiring you to await Consular approval before returning. In an attempt to address a USCBP Officer’s concerns, the foreign national may have at the ready documents serving to confirm her intent and purpose with respect to the U.S. As with all matters, honesty is the best policy. Under such circumstances, be immediately forthright with the USCBP Officer. If the Officer requires proof of your intent, you may produce:

  1. Return airfare ticket;
  2. Proof of employment (recent letter and or pay stub) from outside theU.S.;
  3. Title to home or rental agreement;
  4. Children’s report cards; and
  5. Proof of spouse’s employment abroad.

The above indications of “significant contacts” or roots in your community may alleviate the Inspector’s concerns that you could be a flight risk.

U.S. Spousal Based I-485 Adjustment/Consular Processing Comparison Chart

CONSULAR ADJUSTMENT
1. Involves the foreign national remaining outsideof U.S. until Consular approved, unless K-3 visa acquired in the interim. 1. Enables processing completely within the U.S. – though requires lawful initial entry absent immigrant intent.
2. Depending upon the nationality of the foreign national and location of residence, processing via the Consulate/Embassy abroad may enable LPR status a full year earlier than the adjustment method. K-3 an interim option. 2. Adjustment of status enables lawful interim non-immigrant status in the U.S. while awaiting LPR approval. Yet, adjustment processing is slow – often taking in excess of two (2) years. In the interim, the foreign national may secure an open employment authorization document (EAD). Travel outside of the U.S. while I-485 adjusting is strictly prohibited, unless a travel document/parole is approved.
3. Consular processing usually costs far less than adjustment processing because there is less time involved with managing the file and less interim measures are required. 3. While adjustment processing costs more, it does enable interim open employment (EAD) within the U.S. – which may serve to offset the legal fees

Questions? please click here to contact us
^ top

FAQ #7. Are my dependant family members permitted to “follow to join” me in the U.S. after I become an LPR?
Yes. However, restrictions apply, careful planning is required. If qualified dependants do not move to the U.S. within six (6) months of Consular approval, then the dependant family members are no longer considered “accompanying.” Rather, they are defined as “following to join.” Pursuant to 22 C.F.R. § 40.1 (a) (1), the criteria for following to join are:

a. That person seeking entry is the spouse or the child of the principal beneficiary before the beneficiary’s entry to the U.S.;
b. That the spouse or child not precede the principle beneficiary to the U.S.;
c. That the time period of the child’s or spouse’s projected entry is more than four (4) months after the principal family member enters and is without restriction as to the time subsequently as long as child/spouse maintain related status to principal beneficiary.

Questions? please click here to contact us
^ top

FAQ #8. What is meant by a “bonafide” marriage?
Because of the difficulties with abuse involving sham marriages, the Immigration Marriage Fraud Amendment Act (IMFA) was passed into law in 1986. The IMFA only applies to marriages entered into on or after November 10, 1986.

Importantly, marriage results in conditional resident status unless it is more than two (2) years old at time of granting the immigrant status. INA § 216, 8 U.S.C. § 1186(a). The two (2) year period is measured from the time residency is granted. By example, if a person obtained an immigrant visa packet at a U.S. Consulate/Embassy abroad indicating that he/she may enter as a conditional resident, yet he/she enters the U.S. after his/her marriage was more than two (2) years old, he/she would actually enter as a LPR, not a conditional resident. 8 C.F.R. § 235 11(b), 1235.11(b). Timely coordination of processing requirements is important!

Those couples who have been married for less than two (2) years at the time of entry as a LPR will involve a conditional permanent residence being accorded to the foreign national spouse. In this instance a couple must file a joint petition within ninety (90) days of second anniversary of grant of conditional residence. 8 C.F.R. § 216.4 (a) (1), 1216.4 (a) (1). In order to remove theconditional status, it is imperative that the joint petition be timely filed within ninety (90) days of the second anniversary of grant of permanent residence. The submission may be accompanied by evidence of the following:

i. Joint ownership of property;
ii. Lease establishing joint tenancy;
iii. Joint finances (commingling);
iv. Children’s birth certificates and report cards;
v. Affidavits of third parties attesting to the bona fides of the marriage.

[8 C.F.R. § 216.4 (a) (5), 1216.4 (a) (5).]

Questions? please click here to contact us
^ top

2b. FIANCE K-1 VISA PETITION & FAQ’s

FAQ # 1. What is a U.S. K-1 Fiance Visa?
Fiances/Fiancees who are engaged to be married to United States citizens may apply for a Fiance Visa before the USCIS on Form I-129F.

The K-1 Fiance Visa is only available to those personsengaged to marry a United States citizen. It is not available to fiances of U.S. permanent residents.

The K-1 visa allows the fiance and his or her accompanying minor children to enter the United States for the sole purpose of marrying the U.S. citizen within eighty-nine (89) days of entry

FAQ # 2. What are the requirements for a K-1 Fiance Visa?
The Immigration & Nationality Act (INA) provides for issuance of a K-1 visa only after a petition, filed in the United States, has been approved, based upon satisfactory evidence that the parties have previously met in person within 2 years of the date of filing the petition, have a bona fide intention to marry and are legally able and actually willing to marry within the United States within a period of ninety (90) days after the alien's arrival in the United States.

The USCIS may waive the requirement of a prior meeting if it can be shown that it is not customary to meet prior to marriage in an alien's particular culture or religion.

It is important to note that the marriage must take place within ninety (90) days of entering the United States. If the marriage does not occur within this time frame, the alien and his or her accompanying children will be required to depart the country. Further, the I-129F petition must be filed with the USCIS in the United States and not with a foreign Consulate abroad. The only exception to this general rule is in the case of a U.S. citizen petitioner/fiancé residing abroad. In this case only the U.S. citizen may execute the I-129F petition before a U.S. Consulate official who will then forward the petition to an USCIS office in the United States for adjudication.

FAQ # 3. What happens after I marry the U.S. citizen?
Once married in the U.S., the U.S. citizen will usually apply to adjust his/her foreign national spouse’s status from that of a non-immigrant fiancé to that of an immigrant. The adjustment of status process can be onerous and time consuming – taking in some instances in excess of two (2) years.

While adjusting, the foreign national spouse is not permitted to depart the U.S. Doing so risks theconclusion of abandonment and denied re-entry. Should departure while adjusting be necessary, then an application for a Travel Document/Advance Parole should be facilitated.

While the application for adjustment in and of itself does not permit an interim open employment authorization document (EAD), by filing for adjustment one may also apply for the EAD. If not approved within ninety (90) days of submission, the applicant may attend at the USCIS District Office and request immediate issuance of the EAD.

The EAD and Travel Documents are usually valid in one (1) year increments.

Careful planning is required when determining the advantages/disadvantages attendant with the spousal and fiancé based means of achieving U.S. LPR status.

Given the added requirements and restrictions post U.S. entry on a fiancé basis, the I-129F Petition is usually only recommended to young couples who wish to plan for a marriage in the U.S. at least fourteen (14) months in advance (dependant upon country of origin) and who are prepared to deal with the onerous and restrictive U.S.adjustment, employment and travel restrictions subsequent to lawful entry.

Questions? please click here to contact us
^ top

2c. EMPLOYMENT BASED U.S. IMMIGRANT VISAS

The I-140 Immigrant petition is the standard USCIS form used to file for an employment-based visa, or “Green Card.”

Most I-140 Immigrant Petitions require as a prerequisite that the applicant have a job offer in the United States. In addition, the applicant must generally apply for "Labor Certification" of the offer of employment through the U.S. Department of Labor (DOL). The labor certification process was changed considerably effective March, 2005. The Program Electronic Review Management System (PERM) was implemented to streamline the process and provide greater protection for the existing U.S. labor force. Ultimately, the U.S. PERM system is designed to safeguard U.S. employment while promoting employment based immigration in key areas and under serviced vocations. However, the labor certification process ultimately depends upon a successful test of the labor market. Should a qualified U.S. applicant come tothe fore, the application will not be certified.

There are many employment-based immigrant visa categories which are organized along five lines of "preference," each of which are briefly outlined below. The Immigration Act of 1990 increased the total number of employment-based visas per year from 54,000 to approximately 120,000 in these categories.

Questions? please click here to contact us
^ top

2c-i. FIRST PREFERENCE (EB-1):

The first preference visa category (EB-1) allocates 28.6 percent of the total number of employment-based immigrant visas per year to priority workers in three sub-categories:

1. Aliens with extraordinary ability;
Aliens with extraordinary ability are defined by statute as those who can show that they have "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." Generally, USCIS regulations require that the EB-1 applicant be one of that small percentage who have risen to the very top of their field of endeavor. It is a difficult threshold to meet.

The advantage of applying for permanent residence under this EB-1 sub-category is that neither a job offer nor a labor certification is required. The benefits realized in applying under the first preference EB-1 category are significant.
[INA § 203 (b) (1) (A), 8 U.S.C. § 1153 (b) (1) (f)]

2. Outstanding professors and researchers;
Outstanding professors and researchers are defined as those who are internationally recognized as outstanding in a specific academic area;have a minimum of three years of experience in teaching or researchingin that area; and who are entering the United States in a tenure ortenure track teaching or comparable research position at a university orother institution of higher education.

The research positions in this EB-1 sub-category must be permanent or of a fixed indefinite duration in order to qualify. In this case, an offer of employment is required although labor certification of the offer of employment is not.

The standard of international recognition may be demonstrated through evidence of awards or major prizes, membership in associations which require outstanding performance, evidence that the applicant has sat in judgment of others and authorship of scholarly books and journals.
[INA § 203 (b) (1) (C), 8 U.S.C. § 1153 (b) (1) (B)]

3.Certain multi-national executives and managers;
Certain multi-national executives and managers may qualify for EB-1 status - thereby avoiding the onerous U.S. DOL PERM labor certification requirement. Generally, if an applicant has held L-1A Managerial or Executive intra-company non-immigrant status, the EB-1 standard should be met and the petition approved. Pursuant to NAFTA, the applicant must have been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition, or in the case of an alien in the U.S., one of the threeyears preceding his or her entry as a non-immigrant. The employment outside U.S. must have been with a subsidiary or affiliate company as defined by regulation.
[INA § 203 (b) (1) (C), 8 U.S.C. § 1153 (b) (1) (C)]

A foreign national need not first be qualified in the non-immigrant L-1A capacity before applying for U.S. permanent residence in this category. What must be demonstrated is that the foreign national has been employed abroad by the affiliate employer in either an executive or managerial capacity for a full year within the three (3) years immediately preceding the I-140 Petition submission.

Questions? please click here to contact us
^ top

2c-ii. SECOND PREFERENCE (EB-2):

[INA § 203 (b) (2), 8 U.S.C. § 1153 (b) (2); 8 C.F.R. § 204.5 (K)] 28.6 percent of the total number of employment-based immigrant visas per year are allocated by statute to Second Preference workers in two sub-categories:

a. Aliens who are members of the professions holding advanced degrees or their equivalent;
Aliens who are members of the professions holding advanced degrees or their equivalent generally require an offer of employment from a prospective U.S. employer and an advanced degree in a field related to the offer of employment. "Advanced degrees" are defined as any degree beyond the baccalaureate (bachelors). Master's degrees will be the typical degree requirement in this category. "Professions" are defined as any occupation for which a baccalaureate degree or foreign equivalent is the minimum requirement for entry.

It is important to note that applicants who possess extensive work experience, but no advanced degree, may qualify for EB-2 status. The USCIS may deem one holding a bachelor's degree with five (5) years of work experience to hold the equivalent of a Master's degree.

b. Aliens who, because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interest or welfare of the United States.
Aliens of exceptional ability in the sciences, arts or business may qualify for EB-2 status if that person can demonstrate a degree of expertise significantly above the ordinary as shown by evidence of education, experience, licensure, high salary,membership in key associations, recognition by peers, etcetera.

Labor certification is generally required for both EB-2sub-categories unless the applicant is a registered nurse orphysical therapist, in which case they are exempt from laborcertification under Schedule A - Group I of the legislation.

Aliens may also seek exemption from the labor certification requirement by applying for a National Interest Waiver of the joboffer and labor certification requirement. National Interest Waiversare difficult to achieve, but may be sought if the applicant's admission to the United States may be deemed to be in thecountry's national interest. The USCIS will consider evidenceregarding the alien's potential ability to improve the U.S.economy, improve wages and working conditions, improveeducation of U.S.children, improve U.S. healthcare, scientificadvancement, providemore affordable housing, or improve the environment.

Processing times vary considerably for EB-2 cases depending uponwhether labor certification is required. In the event laborcertification is required, processing time ranges between fifteen(15) and twenty-four (24) months. Much depends upon theeffective implementation of the PERM system. The applicant's "foreign state of chargeability" or birth country also hasconsiderable impact upon processing times as certainemployment-based immigrant visas are allocated by the U.S. Department of State on a per country quota basis.

Questions? please click here to contact us
^ top

2c-iii. THIRD PREFERENCE (EB-3):

[INA § 203 (b) (3), 8 U.S.C. § 1153 (b) (3)] The 1990 Immigration Act allocated 28.6 percent of employment-based visas to third preference workers in the following sub-categories:

a. Skilled workers with two years of experience;
b. Professionals holding a baccalaureate degree; and
c. Other workers

Labor Certification:
Labor Certification of the U.S. offer of employment is required for EB-3 preference workers. The Labor certification process is difficult and requires careful attention to detail in the job description and employer experience requirements of the application materials. The PERM system of DOL certification requires properly coordinated advance advertising of the minimum credentials required for the prospective position of permanent U.S. employment.

Questions? please click here to contact us
^ top

2c-iv. FOURTH PREFERENCE (EB-4) Religious Workers:

[INA §§ 101 (a) (27), 203 (b) (4), 8 U.S.C. § 1101 (a) (27), 1153 (b) (4)] 10,000 visas per year may be issued to certain special immigrants, including religious workers, under the EB-4 employment-based visa category.

The 1990 Immigration Act defines special immigrants as including "ministers ofreligion; professionals working in religious vocations or occupations; and other workers in religious vocations or occupations who work for non-profit U.S. religious organizations.”

Aliens contemplating application under this category must have at least two years of documented membership in a religious denomination abroad or in the U.S. prior to application. The religious worker must be coming to the United States solely for the purpose of acting as a minister, working in a professional religious capacity, or working for a non-profit religious organization.

Questions? please click here to contact us
^ top

2c-v. FIFTH PREFERENCE (EB-5 ) Investors:

[INA § 203 (b) (5), 8 U.S.C. § 1153 (b) (5), 8 C.F.R. § 204.6] A yearly maximum of 10,000 visas per annum may be issued to visa applicants with $1 million to invest in a new commercial enterprise employing at least ten (10) full-time U.S. workers.

The new enterprise must have been established by the applicant and be one in which the applicant has or is in the process of investing $1 million, and be one which will benefit the U.S. economy and create full-time employment for ten U.S. workers (not including the immigrant or family members). If approved, a two year condition is imposed on the immigrant visa to ensure that the applicant has complied with the stated requirements.

One exception to the strict $1 million investment threshold provides that $500,000 may be invested by an applicant in a "target area" which is generally defined as a census rural areas. Various EB-5 programs exist which lower one's minimum required initial investment deposit to $500,000.00 (USD). Please consult our on-line consultation page to determine your eligibility for this type of U.S. permanent resident petition.

Understandably, the EB-5 investor category is one of the most difficult visa applications to process. Processing times are favorable as labor certification is not required.

Questions? please click here to contact us
^ top

EB-1 FAQ's

FAQ #1. Is an offer of U.S. employment required to support the EB-5 petition?
No offer of employment is required, yet the person does need to prove that he/she intends to pursue U.S. employment in an area of qualifying expertise. [8 C.F.R. § 204.5 (h) (5)].

FAQ #2. How may I evidence/demonstrate “sustained or international acclaim” as a person of extraordinary ability?
Evidence may include a major internationally recognized award (e.g. Nobel Prize). If the applicant is not the recipient of such an award, the documentation of any three (3) of the following is required:

a. Receipt of lesser nationally or internationally recognized prizes or awards(academic awards usually insufficient);
b. Membership in association related to the field for which classification is sought, which requires outstanding achievement of their members as judgedby recognized national or international experts;
c. Published material about the person in professional or major trade publications or other major media;
d. Participation as a judge of the work of others;
e. Evidence of original scientific, scholastic, artistic, athletic or business – related contributions of major significance;
f. Authorship of scholarly articles in the field;
g. Artistic exhibitions or showcases;
h. Performance in a leading or cultural role for organization or establishmentthat has a distinguished reputation;
i. High salary or remuneration in relation to others in the field; and
j. Commercial success in the performing arts.

Note: The submission of evidence of three (3) of the ten (10) categories may not be sufficient.

FAQ #3. As a multinational executive or manager, must I first have an L-1A USCIS non-immigrant work permit?
No. While those already in possession of an L-1A have already established many of the same prerequisites to qualify for immigrant status as a multinational executive or manager, one may apply from abroad and await processing without maintaining L-1A status in the interim.

FAQ #4. Where a qualifying multinational company is concerned, how must the U.S.and foreign company be related?
Affiliates include entities owned and controlled by the same group of individuals, in approximately the same share or proportion of each entity. [8 C.F.R. § 204.5 (j) (2)]

A subsidiary may be a joint venture if there is equal control and veto power; or can be less than one-half ownership if there is control in fact [Memo, Yates, Deputy Ex. Assoc. Comm., Immigration Service Division, Office of Field Operations, HQADN 70/6.2.12, AD 00-17 (Aug. 10, 2000)]

EB-2 FAQ's

FAQ #1. What is the advantage of an EB-2 over and EB-3 classification?
At the time of this writing (Sept. 2005), there is no visa backlog under the second and third employment based preferences. As such, as to allocation – there is no practical advantage to EB-2 over EB-3 classification unless one is seeking a national interest waiver. Only EB-2 applicants may waive the labor certification requirements if granted a national interest waiver. Yet, EB-2 qualified applicants are eligible to file an EB-3 professional or skilled worker petition as well.

FAQ #2. How do I prove exceptional ability?
Pursuant to 8 C.F.R. § 204.5 (k) (3) (ii), any three (3) of the following may serve:

a. Degree related to area of exceptional ability;
b. Letter from current or former employer evidencing at least ten (10) years experience;
c. License to practice profession;
d. Person has commanded a salary or remuneration demonstrating exceptional ability;
e. Membership in professional association; and
f. Recognition for achievements and significant contributions to the industry or field by peers, government entities or professional business organization.

Note: Such evidence may include expert opinion letters.

FAQ #3. How does one qualify for a national interest waiver?
The “national interest” standard is significantly higher than that required to establish prospective national benefit required for all persons seeking to establish “exceptional” status. In Matter of New York State Department of Transportation 22 I&N Dec 215 (Acting Assoc. Comm. 1998) [“NYSDOT”], the legacy INS (now USCIS) provided guidance regarding the threshold for a waiver, including the following criteria:

a. The person seeks employment in an area of substantial intrinsic merit;
b. The benefit will be national in scope; and
c. The national interest will be adversely affected if a labor certification were required.

EB-3 FAQ's

FAQ #1. How do I determine the professional or skilled worker characteristics of my vocation?
The U.S. distinguishes employment requirements on the labor certification application in a number of ways. Key considerations involve years of training and experience. Training and experience under DOL standards are useful to show the professional character of the employment position. One may consider the O*NET which is a computerized system that contains lists by category of all positions of employment within the U.S., as well as the requirements, by education, training, and experience necessary to perform the work (See www.onetcenter.org).

EB-4 – Special Immigrants – FAQ's

FAQ #1. Who may be defined as a special immigrant?
a. Person seeking re-acquisition of U.S. citizenship and returning resident;
b. Qualifying religious workers;
c. U.S. employee abroad or employee of American Institute in Taiwan for 15 years;
d. Panama Canal Treaty employees;
e. Foreign medical graduates if entered U.S. on H/J visa, licensed to practice or practicing medicine in a state as of January 1, 1978 and continued to practice and has been continuously present since date of entry. Visa qualifying medical exam is not a requirement. [22 C.F.R. § 24.32 (d) (4)];
f. Commuters from border Saxbe v. Bustos, 419 U.S. 65 (1975); 8 C.F.R. § 211.5;
(g) G-4 Officer – subject to specified requirements;
h. Returning residents Chavez – Ramirez v. INS 792 F. 2nd. 932 (9th cir. 1986);
i. Court dependants – with specified requirements;
j. Person who served honorably for 12 years in armed services on active duty. INA § 101 (a) (27) (K), 8 U.S.C. § 1101 (a) (27) (K); 8 C.F.R. §§ 204.9, 245.8 (C), 1245(C). * Specified requirements;
k. NATO civilian employees. INA § 101(a) (27) (b), 8 U.S.C. § 1101 (a) (27) (b); 22 C.F.R. § 42.32 (d) (5). *Specified requirements;
l. Broadcasters entering the U.S. to work for the International Broadcasting Bureau of the Broadcasting Board of Governors (BBG) or for a grantee of the Broadcasting Board. INA § 101 (a) (27) (M).

EB-5 Employment Creation – Investor FAQ's

FAQ #1. How is a targeted or underserviced area defined?
A targeted area may be defined as a rural area of less than 20,000 population or an area which has experienced high unemployment of at least 150% of the national average.

FAQ #2. Must the investment be at risk?
Yes. An unsecured promissory note, for example, is not considered an investment of capital unless the petitioner can demonstrate that the note is secured by his/her property. Matter of Hsiung, 22 I&N Dec. 201 (Assoc. Comm. 1998).

FAQ #3. Must the petitioner establish the source of funds?
Yes. The petitioner must document the source of funds and establish legitimacy. Matter of Soffici, 22 I&N Dec. 158, 164-165 (Assoc. Comm. 1998).

FAQ #4. May independent contractors be considered employees – serving to meet the minimum of 10 employees requirement?
No. Independent contractors are not considered employees. 8 C.F.R. § 204.6 (e).

FAQ #5. In that a conditional grant of approval is initially awarded attendant with asuccessful EB-5 Investor petition, how do I remove conditions?
Similar to the conditional permanent resident status issued for marriages, the petitioner must apply within 90 days before the second anniversary of initial approval. The request for removal of condition is filed on Form I-829

Questions? please click here to contact us
^ top

2d. DIVERSITY IMMIGRANTS

[INA § 203 (c), 8 U.S.C. § 1153 (c), 22 C.F.R. § 42.33]

The USCIS attempts to supplement its immigration system by making allowance for foreign nationals seeking to immigrate from designated countries. Typically, the designated countries are ones with low immigrant numbers to the U.S

The number of diversity visas available is 55,000 each year, reduced by up to 5000 by the number of grants of special cancellation under NACARA.

The USCIS identifies high admission and low admission regions and states. A high admission region is defined as a region where the states have greater than 1/6th of all visas issued. All other regions are defined as low admission.

At the time of this writing we are advised that consideration is being given toterminating the Diversity Immigrant Program.

Eligibility
Pursuant to 22 C.F.R. § 42.33, an applicant is not eligible unless:

a. He/she has a high school diploma or its equivalent as defined under 22 C.F.R. § 42.33 (a) (2);
b. Has within five (5) years of applying at least two (2) years of work experience in an occupation requiring at least two (2) years training or experience;
c. He/she has obtained the visa within the fiscal year he/she applied. “Under no circumstances may a Consular Officer issue a visa… after the end of a fiscal year.” 22 C.F.R. § 42.33 (a) (i); and
d. Family members are eligible, including spouses and children acquired subsequent to the DV entry submission. Cable DOS (98 – State – 099723) (June 3, 1998).

Questions? please click here to contact us
^ top

2e. REFUGEES AND ASYLEES

A refugee is generally defined as a person who is outside his/her country of nationality and not within the U.S., who is unable or unwilling to return to his or her country because of a “well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion”. INA § 101 (a) (42) (A), 8 U.S.C. § 1101 (a) (42) (A).

By contrast, an asylee is a person who meets the “past persecution” or “well founded fear” definition of a refugee under INA § 101 (a) (42), but who is physically present in the U.S. or is at a land border or port of entry of the U.S. at the time he/she is seeking refuge in the U.S. [INA § 208 (a), 8 U.S.C. § 1158 (a).]

Questions? please click here to contact us
^ top

2f. PERSONS NOT SUBJECT TO LIMITATIONS

The following categories of foreign nationals who are not subject to limitations must be considered in relation to all of the legal implications. Given the limited scope of this presentation, the legal limitations/requirements cannot be stated fully. Briefly, key considerations are as follows:

a. Entry before January 1, 1972, maintaining continuing residence in the U.S. thereafter;
b. The person must show that he/she is a person of good moral character, is not ineligible for U.S. citizenship and is not otherwise deportable;
c. Such a person is ineligible for registry if he/she previously had or has a record of lawful entry into the U.S. Angulo – Dominquez v. Ashcroft, 290 F. 3rd 1147, 1149-51 (9th cir. 2003);
d. Person may apply for registry even if he/she is a former exclusion proceedings;
e. Children of diplomats – children of foreign diplomats born in the U.S. are not U.S. citizens, but may be considered LPRs. 8 C.F.R. §§ 101.3 (a) (c) (d); and
f. Person receiving LPR status through legalization of SAW programs.

Questions? please click here to contact us