Becoming a resident is a two-step process:
- the immigrant petition, in which a qualifying relationship is proven, and
- the application for the immigrant visa (if outside the US) or application to adjust status (if in the U.S.), where the alien family member actually acquires the status of a lawful permanent resident.
An immigrant petition may be filed on behalf of the spouse, parent, child or a sibling of a US citizen, or the spouse or son/daughter of a permanent resident.
There are different processing times for each qualifying relationship and for certain nationalities (i.e. Mexico, India and the Philippines). Immediate relatives of US citizens (spouse, unmarried children under 21) have the option of filing the petition and application to adjust status ("the green card") simultaneously, if the beneficiary is in the U.S. All others have to get on a "waiting line" to be able to apply for the green card, even though the immigrant petition has been approved.
Immigration forms are deceptively simple, but fraught with technicalities not obvious to laypersons. Because of the lengthy processing times, having a petition or application kicked back or worse, denied, entails unnecessary or disastrous delays (of, in some cases, years). There are many factors which affect the petition and application: status of prior entries in the US, other pending petitions, prior convictions, ability to support the beneficiary, multiple family relationships, necessity of travel or employment pending approval, continuing changes in the law or regulation, among others. Careful consideration of all these factors should be made in order to choose the quickest possible avenue to bring family members into the U.S.
Immigrating to the United States based on employment is a benefit granted by the government in favor of the Employer, not the Alien. Thus, if the employer can find the same skills in a US citizen or resident, for the same position, the government will not issue an immigrant visa to the foreigner.
Essentially, therefore, it must be shown that there are no qualified US citizens or residents available for the job being offered. (In most cases, this involves a lengthy and technical "labor certification" process with the US Department of Labor.) The foreigner must demonstrate that he or she meets the minimum qualifications for the job. The employer must also prove that it can pay the prevailing wage for the position offered, not lesser wages.
The labor certification process, which can take about two to three years, has some exceptions: "precertified" cases, exceptional ability aliens, national interest waivers, etc. If a foreign worker qualifies under any of these exceptions, the processing time of his permanent resident status can be dramatically shortened. A careful study of the foreign worker's credentials will determine whether he or she can forego the labor certification process.
Generally, a person who was persecuted in his country, or has a well-founded fear of future persecution should he be forced to return, on account of race, religion, nationality, membership in a particular social group, or political opinion, can seek political asylum in the United States. Obtaining immigrant status on this ground hinges on the ability to prove both the objective grounds for claiming persecution, as well as the reasonable ness of the subjective fear of future persecution. The threat of persecution must be nation-wide, not only in the particular locality where the foreigner resided. An immigration practicioner can help you in properly presenting the evidence necessary to show the elements of persecution and eligibility for immigrant status.
Particular statutes affecting certain Cubans, Nicaraguans, Chinese, Haitians, nationals of the former U.S.S.R. allow them to adjust status to permanent residence if they fulfill the statutory requirements and regulatory deadlines.
4.Diversity Immigration ("Visa Lottery")
Annually, 50,000 visas are available for diversity immigration. The State Department randomly selects applications from aliens from "low admission" countries. Once selected, an alien can then apply for an immigrant visa.
To qualify, an alien must be a native of a "low-admission foreign state" and must have at least a high school education, or 2 years work experience within the past 5 years in an occupation which requires at least 2 years of training or experience.
For the year 2001, the following have been determine to be "low-admission states"
- All countries
Taiwan, India, Philippines, South
- All countries EXCEPT China, Korea and Vietnam
(and its dependent territories)
- All countries EXCEPT Great Britain and Poland
- North America--
- The Bahamas
- All countries
- South, Central America and the Caribbean--
- All countries EXCEPT Colombia, Dominican Republic, El Salvador, Haiti, Jamaica and Mexico