Many Routes to a “Green Card”
There are many different methods to obtain permanent residence, also known as a “green card”, in the United States.
Regardless of the route chosen, the result is the same: a green card which gives the holder the right to live and work freely in the US without the worries and restrictions of expiration deadlines, visa renewals, job-related petitions, etc.
All “green card” holders are essentially equal in the eyes of the law, enjoying the same rights and responsibilities, regardless of how that permanent residence was obtained. Spouses and minor children are usually able to immigrate and obtain “green cards” at the same time as the principal new permanent resident.
The decision to seek permanent residence, and the selection of the most appropriate route both depend upon a number of factors, including the nationality, education, and past and projected employment of the individual involved.
Having a close family relationship with someone already established in the US as a permanent resident or a citizen is only one of the possible ways to obtain green card status.
Permanent residence through an individual’s job-creating investment, as a religious worker, or through political asylum is not discussed here.
Relationships, Requirements, Procedures, Timing
Acquisition of permanent residence depends upon the demonstration of certain employment or family relationships. There are extensive documentary requirements, which vary according to the method selected.
The process relies upon thorough documentation in order to demonstrate the existence of the qualifying relationship and the fulfillment of all other requirements. Due to the complexity of the law, constantly changing regulations, and unwritten codes of procedure, there is a significant element of risk. A number of insensitive bureaucracies may be involved.
There is a limit to the number of immigrant visas available each year for all but spouses, minor children and parents of US citizens. Delays may be imposed by quota restrictions. Processing delays are also inherent in the system. While the law is federal and so must be applied evenly throughout the nation, processing times and procedures vary from state to state and month to month.
Permanent residents enjoy most of the same rights and responsibilities as US citizens, with the exception of the right to vote and to hold certain sensitive jobs or investments.
Travel to and from the US is simplified, and no paperwork is necessary to maintain the status. Movement within the country and from job to job is unlimited.
Permanent residents are taxed on their worldwide income.
After a period of permanent residence, US citizenship may be acquired.
The term “permanent residence” is somewhat misleading, since it is a status which can be given up voluntarily, and it can also be involuntarily lost or revoked.
Extended absence from the US is the most common way of losing permanent residence involuntarily.
Employment and Investment
Those individuals who do not enjoy a family relationship with a US citizen or permanent resident must demonstrate either a US employment relationship or a job-creating investment.
Most employment relationships require a showing that the prospective employee will immigrate to fill a position for which there is a shortage of available American workers.
Statutory Regulations and Requirements:
1. Priority Workers [40,000 visas per year, no showing of shortage required].
Certain multinational executives and managers can be transferred from their company abroad to a related company in the US.
THIS IS THE PREFERRED EMPLOYMENT ROUTE TO PERMANENT RESIDENCE, SINCE NO SHOWING OF SHORTAGE IN THE US LABOR MARKET IS REQUIRED, and CURRENTLY THERE ARE NO QUOTA BACKLOGS.
One year of prior executive or managerial experience with the related company abroad during the prior three years is the basic requirement.
Outstanding professors and researchers, plus individuals with extraordinary ability in the sciences, arts, education, business or athletics are eligible for the same priority processing.
2. Advanced Degrees or Exceptional Ability [showing of shortage required].
Those individuals who cannot meet the above requirements may still immigrate to the US if they hold advanced degrees [Masters or Ph.D.], or can be shown to have exceptional ability in sciences, arts or business [no degree required]. A showing of shortage in the American job market is required, however.
Professionals with Bachelors degrees, skilled workers with at least 2 years of training or experience, and unskilled workers must also demonstrate a shortage of American workers.
The spouses, single minor children [under 21], and parents of US citizens enjoy essentially unlimited access to immigrant visas.
CIS Petition Process
Permanent residence is only obtained after approval of an immigrant visa petition by the Immigration and Naturalization Service. Specific forms are required, together with detailed documentation supporting either the employment or family relationship.
For those employment-based immigrant visa petitions which require a showing of shortage of available American workers, there is a process called “labor certification.” This process involves the general advertising of the job opening. The employer must publicly offer to pay the prevailing wage for that position. The job may not be “tailored” for the foreign worker.
The qualifications of each person who responds to the advertising must be carefully compared against the minimum requirements for the position. Only when it can be demonstrated that there are no US workers available for the position at the prevailing wage is a labor certification successful. The process is supervised by state employment agencies and the federal Department of Labor. Most labor certifications are ultimately successful.
Adjustment of Status or Immigrant Visa
Each person who is the beneficiary of an approved immigrant visa petition must be screened for individual eligibility to immigrate. There are classes of approved beneficiaries who may not be permitted to immigrate, such as criminals and prostitutes.
There are also less obvious classes of people who may be barred from entry, such as those who have entered the US on certain types of J visas, or those who have committed visa fraud. Some of the “grounds of excludability” can be “waived” or pardoned.
Screening for immigration can occur at a US consulate abroad [resulting in the issuance of an immigrant visa] or at an office of the CIS in the US [resulting in the adjustment of status to that of permanent residence].
Choice of procedure depends upon eligibility of the individual, relative backlogs at the alternative interview sites, the ability to obtain review of a negative decision and the convenience of the employer, individual and family.
There are currently almost no quota backlogs in the employment-based visas [with the exception of unskilled workers] for most countries. In contrast, spouses, children and parents of US citizens are the only people who may gain permanent residency through a family relationship without delays ranging from a few to many years.
Processing times are in flux due to the heavy current volume of submissions of immigrant and nonimmigrant visa petitions. Processing efficiency varies widely among the four CIS regional processing centers. Few petitions are decided in less than two weeks. Most take 4 to 6 weeks for favorable resolution. Some have taken up to 4 or 5 months.
Delays in adjustment of status interviews at CIS district offices vary widely from a matter of weeks to many months.
Immigrant visa interviews at US consulates abroad generally take four to six weeks to schedule from the time the consulate is notified that an immigrant visa petition has been approved.
Nonimmigrant visas to bridge gaps in time
Due to quota backlogs or extended processing times, a variety of non-immigrant visas may be employed to obtain immediate access to the US pending ultimate immigration.
US citizens and permanent residents are taxed by the US government on their worldwide income, regardless of their physical domicile. Persons physically present in the US for extended periods of time, regardless of their visa status, are also taxed on their worldwide income.
Tax treaties between the US and other countries may be used effectively to reduce the overall tax burden. Some provisions may provide excellent tax planning opportunities, such as the ability of Japanese grantors to pass accumulated wealth to US permanent resident beneficiaries without estate taxation by either Japan or the US.
Potential Loss of Treaty Protection
Recent case law indicates that the foreign employers of citizens from treaty countries may be shielded by such bilateral treaties from liability for certain types of employment discrimination claims. Acquisition of permanent residence may put such protection in doubt.
Permanent residence can be lost involuntarily through abandonment. There are few hard and fast rules defining abandonment, but permanent residents who plan to be absent from the US for extended periods of time need to plan carefully if they wish to avoid the risk of abandonment. The “green card” is good for travel outside the US for an uninterrupted period of up to one year. Presence in the US for only one day each year over an extended period of time, however, is no guarantee of retaining permanent residence.
Permanent residence can be lost through conviction of certain types of serious crimes, particularly those that are drug-related.
For more information on how to apply for permanent residence (a “green card”), or for assistance with other immigration or employment-based immigration visas, please complete our Client Questionnaire.