Immigrant Visas and Lawful Permanent Residents

In module two, we examined the legal mechanisms that allow foreign nationals to enter the United States temporarily. In this module, we consider how foreign nationals who seek to come to the United States on a legal immigrant basis can do so under the provisions of US immigration laws. We’ll then follow-up with becoming a citizen in the next module.

Paths to Legal Immigration

From its colonial origins through the present, the United States has always relied on immigration to promote population growth. Federal law establishes the conditions on who can legally immigrate to the United States, and how. At different times, the federal government has used immigration laws to restrict entry by some, such as by the “Asian exclusion laws” of the late 19^th and early 20^th Centuries[1], or to promote entry by others, like the preferences given up to 1965 to immigrants from Western Europe. Though this ethnicity-based thinking is no longer as politically acceptable as it once was, the current policy still limits immigration on a per-country basis.[2]

The US adds more than one million legal immigrants annually. Roughly half of these immigrants are first-time entrants to the United States, with the other half already being in the country when they receive immigrant status (the latter being referred to under US law as “adjustment of status”). About two-thirds of legal immigrants come through a family connection, such as by marriage to a US citizen or through immediate relative petitions. The remaining third come through categories that include employment-based preferences, refugees and asylum seekers, recipients of diversity-based visas and other immigrant visa types.[3]

Acquiring lawful permanent resident status is a multi-step process that usually begins with the filing of an immigration petition with the USCIS. Someone else, such as an American relative, may also file the petition on behalf of the prospective immigrant. The petition can be filed in the United States or, as when the petitioner is a member of the US military serving overseas, the petition can be initiated at a US embassy or consulate.

Immigration petitions include:

·         Form I-130, Petition for Alien Relative

·         Form I-140, Petition for Alien Worker

·         Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant

·         Form I-526, Immigrant Petition by Alien Entrepreneur

·         Form I-589, Application for Asylum and for Withholding of Removal

·         Form I-730, Refugee/Asylee Relative Petition

·         Form I-918, Petition of U Nonimmigrant Status, and

·         Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant.

Consular Processing

Consular processing describes the process used by would-be immigrants who are outside of the United States.[4] After the petition is submitted, the USCIS will approve or deny it. If the petition is denied, the USCIS will state the reason for the denial and inform the petitioner whether an appeal is possible. Approved petitions process next to the US State Department’s National Visa Center to await the availability of a visa, after which the appropriate consulate or embassy will schedule an interview with the immigrant for further consideration of whether a visa should issue. Depending on factors including the visa type sought and the country of origin of the applicant, the petition might remain at the NVC for weeks, months, or even years before the scheduling of an interview.

Becoming a lawful Immigrant is more than a paperwork exercise. For beneficiaries of approved petitions, the next important step is a required face-to-face interview with a consular official. This interview is to evaluate the prospective immigrant’s admissibility. The questions asked during the interview vary depending on the type of visa sought. For example, someone coming to the US as the spouse of a citizen can expect to receive questions about the circumstances of the marriage and how the relationship with the citizen came about, while applicants for an employment-based visa will be asked about their work experiences and the jobs that they will be performing once in the US.  

The interview is the culmination of completing several prerequisites. These include designating an agent for the immigrant candidate (or self-representation), undergoing a medical examination and bringing necessary documentation to the interview. Among the required documents are the interview appointment letter, current and expired passports, current passport photos, affidavits of support from the sponsor (Form I-864[5]) and records from the medical examination.  Depending on the visa under consideration, additional documents may be needed. For example, a spouse of a citizen will need to show proof of the marriage and a prospective recipient of an employment visa will need to produce a notarized letter containing the job offer.[6]

Successful applicants for legal immigrant status receive an immigrant visa and must pay, online, an immigrant fee to the USCIS (unless the fee is waived, such as for K visa holders, special immigrants from Iraq or Afghanistan and children entering as orphans or under certain adoption programs).[7] This fee also covers the issuance after arrival in the US of a Permanent Residence Card,[8] colloquially known as a “Green Card.” Failure to make the fee payment does not preclude the immigrant from lawful permanent resident status, but it does mean that a green card won’t be issued. Without the green card, the only evidence of the approved petition is the I-551 temporary stamp that the immigrant receives on arriving in the United States, which is valid for one year.[9]

The adjustment of status process (for immigrants already in the US legally on some other ground) is similar to consular processing in that an immigration petition is necessary to qualify for the visa, followed by a green card application on visa approval, with some minor differences: for example, the visa applicant must provide fingerprints and a photograph at an Application Support Center and an interview may be required at a USCIS office.[10]

The form used to obtain a Green Card through adjustment of status is Form I-485: Application to Register Permanent Residence or Adjust Status.

Types of Immigrant Visas

The starting point for any lawful permanent resident’s journey before the filing of an immigrant petition is to establish eligibility for an immigrant visa. The Federal agency responsible for immigrant visa issuance is the Department of State, which subcategorizes these visas into several types.

Family-Based Visas

Family-based visas include:

·         Immediate relative visas for parents of citizens who are 21 or older, spouses and unmarried children under 21.  

·         Other relative visas for family members of US citizens (married sons and daughters of citizens and siblings, and unmarried sons and daughters who are 21 or older) and lawful permanent residents (spouses and children under the age of 21).

·         Fiancée visas for K visa holders and their children.

·         Widow and widower visas for spouses of citizens who filed a pre-death immigrant petition or who themselves petition for adjustment of status within two years of the citizen’s passing.

·         Abuse victim visas for abused spouses of citizens and permanent residents and their children under 21 years old, and for parents of US citizens.  

US immigration law places numerical limits on family-based visas. As of 2019, a maximum of 480,000 such visas can issue each year, and within this number the law sets additional limits. For example, 226,000 family-based visas must issue to people other than immediate relatives. Additional limits exist for specific subcategories including married children, unmarried children and siblings.[11]

Although the law does not set a maximum for immediate relatives, the total number of family-based visas still cannot exceed 480,000 annually. If that number is not met, the balance carries over to the following year. In addition to these limits, family-based visas are subject to per-country restrictions: no more than seven percent of these visas can be allocated to foreigners from any one country.

Employment-Based Visas

Although many foreign nationals come to the United States under H-1 Visas as temporary workers, employers can also petition to bring in foreign workers on an immigrant basis. The main difference between nonimmigrant and immigrant employment visas, aside from the duration of stay, is that an employer petitioning for an immigrant employee must show that it cannot find qualified workers for the position (H-1 Visas do not impose this requirement).

US law recognizes the following subcategories of employment-related Green Cards:

·         Immigrant workers fall into three hierarchical “preference” subcategories: the EB-1, EB-2, and EB-3 Visas.[12] First-preference workers are those who have extraordinary scientific, artistic, educational, athletic or business abilities, or who are outstanding researchers or professors, and certain managers and executives. Second-preference includes advanced-degree professionals, people with exceptional artistic, business and scientific ability (but not necessarily “extraordinary”) and those who qualify for a national interest waiver (people whose presence will substantially benefit the nation’s economic, cultural, educational interests or welfare of the United States). Third-preference candidates are those who possess skills, experience, or education not rising to the level of first or second-preference visas.

·         Physicians who agree to work in areas of the US that are underserved medically may be eligible for an immigrant visa through the Physician National Interest Waiver.[13] This is a variation of the EB-2 Visa.

·         Investors who have invested or are investing at least $1,000,000 in new businesses that will employ at least 10 full-time employees are candidates for EB-5 Immigrant Investor visas.[14] The required investment amount may be $500,000 if the business is located in a place that the federal government identifies as a targeted investment area.

Special Immigrant Visas

The EB-4 Visa is for foreigners who possess specifically-identified qualifications to immigrate to the United States. These include religious workers, certain Iraqi or Afghan nationals who have worked for the US, international broadcasters and retired officers or employees of select international organizations (such as NATO).[15]

Refugees and Asylum-Seekers

US law defines a refugee as someone who is outside his home country and cannot or will not return there because of threatened persecution.[16]The nature of the persecution must create a special humanitarian concern. Examples include persecution based on religion, nationality, race, political opinions or membership in a social group. US law allows for admission of an indefinite number of refugees. The number admitted is subject to the determination of the President, based on considerations including humanitarian concerns and the national interest.[17]

Refugees are subject to restrictions on their immigrant eligibility: they must not be otherwise inadmissible or must qualify for a waiver of inadmissibility,[18] and they must not have already resettled in another country. Furthermore, one may not claim refugee status in the US if the persecution that person fears are based on his own past behavior (that is, the person has incited, participated in or assisted in the persecution of others).[19]

Living as a refugee in the US does not confer long-term or permanent resident status. Refugees who have been in the US for at least one year must apply for a Green Card using an adjustment of status procedure. [20]

The main definitional difference between a refugee and a person seeking asylum is that refugees ordinarily apply for entry while outside the US while asylum-seekers are already in the country. Aside from this distinction, both are subject to the same kinds of conditions and restrictions.[21]

Another difference is that asylum-seekers must choose one of two asylum paths: affirmative or defensive.[22] Affirmative asylum-seekers are people who take the initiative in seeking asylum by applying for it. Defensive asylum-seekers are usually people who have been apprehended attempting to enter the US without proper documentation, or who are subject to removal proceedings. One benefit of affirmative over defensive asylum-seeking is that those using the affirmative procedure are less likely to be held in detention than people using the defensive procedure.  

Victims of human trafficking who hold “T” nonimmigrant visas[23] and crime victims holding “U” nonimmigrant visas[24] can seek to adjust status to Green Card holders. In both cases, the applicant must have continuously resided in the US for at least three years and must be present throughout the application process, have upheld the conditions for cooperation with law enforcement inherent in the nonimmigrant visa and must not otherwise be inadmissible to the United States.

The Violence Against Women Act[25] also provides a path to green card eligibility for victims of cruelty committed by spouses and former spouses, parents and children who are themselves US citizens or lawful permanent residents.[26] Unlike most other family-related green cards, applicants can self-petition. Although the law’s title suggests that it applies only to women victims, both genders are eligible.

The eligibility criteria for such a petition are similar to other victim-related petitions: the petitioner must be physically present in the United States during the petition process, must be eligible to receive an immigrant visa and must not do anything to become inadmissible.  

Unmarried lawful nonimmigrant children who have been caught up in juvenile court proceedings arising from abuse, neglect or abandonment can self-petition for adjustment of status under the Special Immigrant Juvenile category.[27] Finally, some abuse-related adjustment of status Green Cards are available to spouses of Cuban and Haitian natives or citizens under the Cuban Adjustment Act[28] and the Haitian Refugee Immigrant Fairness Act.[29]

The Diversity Immigrant Visa Program

Also known as the “visa lottery,” the US State Department, through its Diversity Immigrant Visa Program,[30] makes as many as 50,000 Green Cards available on a random-selection basis to people from six global regions. Within each region, only some countries are lottery-eligible. The list of ineligible countries can change based on the number of their people who have emigrated to the US. For example, in Fiscal Year 2020 18 countries that sent more than 50,000 immigrants to the United States are ineligible to participate in the program.[31] In addition, no single country’s citizens or natives can take up more than seven percent of the available diversity visas for any one year.

Annually, more than 10 million people use the State Department’s online visa lottery portal[32] to apply for one of the 50,000 visas. Being selected for diversity-based eligibility does not itself confer green card status; successful applicants must still meet other requirements. The lottery process actually chooses about 100,000 “winners” each year because ultimately about half of them do not succeed in earning a green card.[33]  

Several additional laws make green cards available to targeted groups. For example, foreigners who qualify can seek lawful immigrant status through the Indochinese Parole Adjustment Act,[34] as Native Americans born in Canada,[35] or as children of foreign diplomats living in the US.[36] Lastly, even people who have been living in the United States without proper documentation may be eligible to obtain a green card through registration if they have lived in the country since January 1, 1972.[37]

Maintaining Lawful Immigrant Status

Some Green Cards carry conditions that the card holder must satisfy within two years. The most common conditional residence green cards are those issued to marriage-based visa holders (the condition is to stay married) and to entrepreneur investors (the condition is to fulfill the investment commitment). Failure to meet these conditions, or to timely commence the condition removal, can lead to loss of permanent residency.[38]  

            Once granted, a green card needs to be maintained. Green cards must be renewed every 10 years. If the card is conditional, the condition must be cleared within two years.[39] Green card holders must also maintain their permanent resident status, such as by avoiding prolonged absences from the US, by not moving to another country, and by still filing income tax returns when living outside of the US.[40]

Conclusion

Becoming a lawful permanent resident can be a complex and time-consuming process, but it conveys significant advantages including the right to live permanently in the US, to work there and to have a foundation to become a naturalized US citizen. It also carries responsibilities, such as to obey federal, state and local laws and to pay taxes. Understanding how the lawful immigration process works is important to visa applicants and those who advise them to minimize petition denials and delays and to preserve permanent resident status once it is achieved.

In the next module, we’ll move forward to the last phase in the journey of the immigrant: United States citizenship.