Green Card - Legal Permanent
Residency (LPR) - PERM
An immigrant is a foreign national who has been
granted the privilege
of living and working permanently in the United States. You must go
through a multi-step process to become an immigrant. In most cases,the
United States Citizenship & Immigration Service (USCIS) must
first approve an immigrant petition for you, usually filed by an
immediate family member such as a spouse, parent or sibling or an
employer.
The categories by which to obtain a
green
card are as follows:
- immigration through a family member
- immigration through employment
- immigration through investment
- immigration through the Diversity Lottery
- immigration through "The Registry" provisions
of the Immigration and Nationality Act
In order to adjust your status to lawful
permanent resident status, an immigrant visa number must be available
to you, even if you are already in the United States. After that, if
you are already in the United States, you may apply to adjust to lawful
permanent resident status. If you are outside the United States, you
will be notified to go to the U.S. consulate in your home country to
complete the processing for an immigrant visa. This process abroad is
known as "consular processing" and more information is available on my
website under Consular Processing.
Applicants for adjustment to lawful permanent
resident status are
eligible to apply for a work authorization while their cases are
pending with the USCIS. Once you obtain your lawful permanent residency
or green card you will not need to apply for
employment
authorization. As a lawful permanent resident and green card holder,
you should receive a
permanent resident card that will prove that you have a right to live
and work in the United States permanently.
An alien with a green card application
can obtain two important permits
while the case is pending.
- Temporary work permit known
as the Employment Authorization Document (EAD), which allows the alien
to take employment in the United States.
- Temporary travel document, advance parole,
which allows the alien to re-enter the United States.
Both permits
confer benefits that are independent of any existing status granted to
the alien.
The Green Card/Legal
permanent residency process can be a complicated process. It
is advised
that you consult with an attorney, such as myself, to determine your
eligibility for legal permanent residency and assist you through this
legal process to obtain your Green Card.
Contact Malee about reviewing your
options to obtain your
legal
permanent residency or Green
Card.
Green Card
Application
process
An immigrant usually has to go through a
three-step process to get
permanent residency. The whole process may take several years,
depending on the type of immigrant category and the country of birth.
- Immigrant Petition — in the
first step, USCIS approves the
immigrant petition by a qualifying relative, an employer, or in rare
cases, such as with an investor visa, the applicant himself. If a
sibling is applying, she or he must have the same parents as the
applicant.
- Immigrant Visa Availability
— in the second step, unless the applicant is an "immediate relative",
an immigrant visa number through the National
Visa Center (NVC)
of the United States Department of State
(DOS) must be available. A visa number might not be immediately
available even if the USCIS approves the petition, because the amount
of immigrant visa numbers is limited every year by quotas set in the
Immigration and Nationality Act
(INA). There are also certain additional limitations by country of
birth. Thus, most immigrants will be placed on lengthy waiting lists.
Those immigrants who are immediate relatives of a U.S. citizen (spouses
and children under 21 years of age, and parents of a US citizen who is
21 years of age or older) are not subject to these quotas and may
proceed to the next step immediately (since they qualify for the IR
immigrant category).
- Immigrant Visa Adjudication
— in the third step, if an
immigrant visa number becomes available, the applicant must either
apply with USCIS to adjust their current status to permanent resident
status or apply with the DOS for an immigrant visa at the nearest US
consulate before being allowed to come to the United States.
- Adjustment
of Status (AOS) — Adjustment of status is
submitted to USCIS via form I-485, Application to Register
Permanent Residence or Adjust Status.
The USCIS conducts a series of background checks (including
fingerprinting for FBI criminal background check and name checks) and
makes a decision on the application. Once the adjustment of status
application is accepted, the alien is allowed to stay in the United
States even if the original period of authorized stay on the Form I-94
is expired, but he is not allowed to leave the country until the
application is approved or rejected. If the alien has to leave the
United States during this time, he/she can apply for travel documents
at the USCIS with form I-131, also called Advance Parole.
If there is a potential risk that the applicant's work permit (visa)
will expire or become invalid (laid off by the employer and visa
sponsor) or the applicant wants to start working in the United States,
while he/she is waiting for the decision about his/her application to
change status, he/she can file form I-765, to get Employment
Authorization Documents (also called EAD)
and be able to continue or start working legally in the United States.In
some cases, the applicant will be interviewed at a USCIS office. If
the application is approved, the alien becomes an LPR, and the actual
green card is mailed to the alien's last known mailing address.
- Consular Processing
— this is an alternative to AOS, but
still requires the immigrant visa petition to be completed. If the
applicant is outside of the USA (or selects this option instead of
AOS), he/she may make an appointment at the U.S. embassy or consulate
in his/her home country, where a consular officer adjudicates the case.
If the case is approved, an immigrant visa is issued by the U.S.
embassy or consulate. The visa entitles the holder to travel to the
U.S. as an immigrant. At the port of entry, the immigrant visa holder
is processed for a permanent resident card and receives an I-551 stamp
in his/her passport. The permanent resident card is mailed to his/her
US address within several weeks.
Application process for family-sponsored
visa
Green card holders and families
Green
card holders married to non-U.S. citizens are unable to
legally bring their spouses (or families) to join them in the USA. The
foreign spouse of a green card holder must wait for approval of an
'immigrant visa' from the State Department before entering the United
States. Due to numerical limitation on the number of these visas which
can be issued in one fiscal year, such visas can take up to five years
to be approved. In the interim, the spouse may find it difficult to
overcome presumed immigrant intent in order to qualify for a
non-immigrant (or tourist) visa. This puts LPRs in a uniquely
disadvantaged situation:
- visitors and non-immigrants coming to the USA
on temporary visas
for work, business, or study (including H1, L1, B, and F1 visas) can
sponsor their dependent spouses to travel with them;
- U.S. citizens can sponsor their spouses to come
to the USA in
non-immigrant status; the spouse can then convert to an immigrant
status under the Legal Immigration and
Family Equity Act of 2000 (the "LIFE
Act").
The issue of LPRs separated from their families
for years is not a
new problem. A mechanism to unite families of LPRs was created by the
LIFE Act by the introduction of a 'V visa,'
signed into law by President Bush. It effectively expired and is no
longer available. Bills HR1823 and HR4448 are in the U.S. Congress. The
proposal for reviving the V visa is based on something that has little
controversy — family unity — but passing such a bill into law is not a
small matter.
Application process for employment-based
visa
Many immigrants opt for this route, which requires
an employer to
"sponsor" (i.e. to petition before USCIS) the immigrant (known as the alien
beneficiary)
through a presumed future job. The three-step process outlined above is
described here in more detail for employment-based immigration
applications. After the process is complete, the alien is expected to
take the certified job offered by the employer to substantiate his or
her immigrant status, since the application ultimately rests on the
alien's employment with that company in that particular position.
- Immigrant Petition - the
first step includes the pre-requisite labor certification upon which
the actual petition will reside.
- Labor Certification —
the employer must legally prove that
it has a need to hire an alien for a specific position and that there
is no minimally qualified U.S. citizen or LPR available to fill that
position, hence the reason for hiring the alien. Some of the
requirements to prove this situation include: proof of advertising for
the specific position; skill requirements particular to the job;
verification of the prevailing wage for a position; and the employer's
ability to pay. This is currently done through an electronic system
known as PERM.
The date when the labor certification application is filed becomes the
applicant's priority date. In some cases, for
highly skilled foreign nationals (EB1 and EB2 National
Interest Waiver, e.g. researchers, athletes, artists or
business executives) and "Schedule A" labor(nurses
and physical therapists), this step is waived. This step is processed
by the United States Department of Labor (DOL).
- Immigrant Petition — the
employer applies on the alien's behalf to obtain a visa number. The
application is form I-140, Immigrant Petition for Alien Worker,
and it is processed by the USCIS. There are several EB (employment-based)
immigrant categories
under which the alien may apply, with progressively stricter
requirements, but often shorter waiting times. Many of the applications
are processed under the EB3 category.Currently,
this process takes up to 6 months. Many of the EB categories
allow expedited processing of this stage, known as "premium processing".
- Immigrant Visa Availability.
When the immigrant petition is
approved by the USCIS, the petition is forwarded to the NVC for visa
allocation. Currently this step centers around the priority date
concept.
- Priority date — the visa
becomes available when the applicant's priority date
is earlier than the cutoff date announced on the
DOS's Visa Bulletin
or when the immigrant visa category the applicant is assigned to is
announced as "current". A "current" designation indicates that visa
numbers are available to all applicants in the corresponding immigrant
category. Petitions with priority dates earlier than the cutoff date
are expected to have visas available, therefore those applicants are
eligible for final adjudication. When the NVC determines that a visa
number could be available for a particular immigrant petition, a visa
is tentatively allocated to the applicant. The NVC will send a letter
stating that the applicant may be eligible for adjustment of status,
and requiring the applicant to choose either to adjust status with the
USCIS directly, or apply at the U.S. consulate abroad. This waiting
process determines when the applicant can expect the immigration case
to be adjudicated. Due to quotas imposed on EB visa categories, there
are more approved immigrant petitions than visas available under INA.
High demand for visas has created a backlog of approved but
unadjudicated cases. In addition, due to processing inefficiencies
throughout DOS and USCIS systems, not all visas available under the
quota system in a given year were allocated to applicants by the DOS.
Since there is no quota carry-over to the next fiscal year, for several
years visa quotas have not been fully used, thus adding to the visa
backlog.
- Immigrant Visa Adjudication.
When the NVC determines that an
immigrant visa is available, the case can be adjudicated. If the alien
is already in the USA, that alien has a choice to finalize the green
card process via adjustment of status in the USA, or via consular
processing abroad. If the alien is outside of the USA he/she can only
apply for an immigrant visa at the U.S. consulate. The USCIS does not
allow an alien to pursue consular processing and AOS simultaneously.
Prior to filing the form I-485 (Adjustment of Status) it is required
that the applicant have a medical examination
performed by a
USCIS-approved civil surgeon. The examination includes a blood test and
specific immunizations, unless the applicant provides proof that the
required immunizations were already done elsewhere. The civil surgeon
hands the applicant a sealed envelope containing a completed form
I-693, which must be included unopened with the I-485 application.[17]
- Adjustment of Status (AOS)
— after the alien has a labor
certification and has been provisionally allocated a visa number, the
final step is to change his or her status to permanent residency.
Adjustment of status is submitted to USCIS via form I-485, Application
to Register Permanent Residence or Adjust Status. If an
immigrant visa number is available, the USCIS will allow "concurrent
filing":
it will accept forms I-140 and I-485 submitted in the same package or
will accept form I-485 even before the approval of the I-140.
- Consular Processing —
this is an alternative to AOS, but
still requires the immigrant visa petition to be completed. In the past
(pre-2005), this process was somewhat faster than applying for AOS, so
was sometimes used to circumvent long backlogs (of over two years in
some cases). However, due to recent efficiency improvements by the
USCIS, it is not clear whether applying via consular processing is
faster than the regular AOS process. Consular processing is also
thought to be riskier since there is no or very little recourse for
appeal if the officer denies the application.
Green card lottery
Each year, around 50,000 immigrant visas are made
available through the Diversity Visa (DV) program, also known as the Green Card Lottery
to people who were born in countries with low rates of immigration to
the United States (fewer than 50,000 immigrants in the past five
years). Applicants can only qualify by country of birth, not by
citizenship. Anyone who is selected under this lottery will be given
the opportunity to apply for permanent residence. They can also file
for their spouse and any unmarried children under the age of 21.
If permanent residence is granted, the winner (and
his/her family,
if applicable) receives an immigrant visa in their passport(s) that has
to be "activated" within six months of issuance at any port of entry to
the United States. The new immigrant receives a stamp on the visa as
proof of lawful admittance to the United States, and the individual is
now authorized to live and work permanently in the United States.
Finally, the actual "green card" typically arrives by mail within a few
months.
Conditional
permanent residence
As part of immigration reform under the
Immigration Reform and Control Act of 1986 (IRCA), as well as further
reform enacted in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996
(IIRAIRA), persons who are eligible and properly apply for permanent
residence based on either a recent marriage to a U.S. citizen or as an
investor are granted permanent residence on a conditional basis for two
years. An exception to this rule is the case of a U.S. citizen legally
sponsoring a spouse in which the marriage at the time of the adjustment
of status (I-485) is more than two years old. In this case, the
conditional status is waived and a 10-year Permanent Resident Card is
issued upon USCIS approval of the case. A permanent resident under the
conditional clause may receive an I-551 stamp as well as a Permanent
Resident Card. The expiration date of the conditional period is two
years from the approval date. The immigrant visa category is CR
(conditional resident).
When this two-year conditional period is over, the
permanent
residence automatically expires and the applicant is subject to
deportation and removal. To avoid this, 90 days or less before the
conditional residence expires, the applicant must file form I-751 Petition
to Remove Conditions on Residence
(if conditional permanent residence was obtained through marriage) or
form I-829 Petition by Entrepreneur to Remove Conditions
(if conditional permanent residence was obtained through investment)
with USCIS to have the conditions removed. Once the application is
received, permanent residence is extended for 1-year intervals until
the request to remove conditions is approved or denied. The USCIS
requires that the application provide both general and specific
supporting evidence that the basis on which the applicant obtained
conditional permanent residence was not fraudulent. For an application
based on marriage, birth certificates of children, joint financial
statements, and letters from employers, friends and relatives are some
types of evidence that are accepted. A follow-up interview with an
immigration inspector is sometimes required but usually waived if the
evidence is sufficient. This is to ensure that the marriage was in good
faith and not one of fraudulent means with a sole intention of
obtaining a green card. Both husband and wife must attend both
interviews under most circumstances. The applicant receives an I-551
stamp in their foreign passport upon approval of their case. The
applicant is then free from the conditional requirement once the
application is approved. The applicant's new Permanent Resident Card
arrives via mail to their residence several weeks to several months
later and replaces the old two-year conditional residence card. This
new card must be renewed after 10 years, however permanent resident
status is now granted for an indefinite term provided that residence
conditions are satisfied at all times. USCIS may request to renew the
card earlier due to security enhancements of the card or as a part of a
revalidation campaign to exclude counterfeit green cards from
circulation.
It is important to note that this two-year
conditional residence
period counts towards time as a permanent resident for all purposes
including naturalization.
However, the application for the removal of conditions must be
adjudicated before naturalization can be granted to the applicant.
