The family visa is available for close relatives of U.S. citizens and lawful permanent residents. A U.S. citizen or lawful permanent resident can act as a sponsor for their close family members for immigration purposes. The number of family visas available annually is unlimited for certain immediate relatives of U.S. citizens, but capped for the relatives of U.S. permanent residents and the extended family members of U.S. citizens.
IMMEDIATE RELATIVE PETITIONS
The immediate relatives of U.S. citizens are eligible for an unlimited number of family visas each year. The United States Citizenship and Immigration Services (USCIS) allows U.S. citizens to file an unrestricted number of Immediate Relative Petitions on behalf of their spouses, unmarried children under the age of 21, orphans adopted in the U.S. or abroad, and parents (provided the sponsor is at least 21 years old). Grandparents, aunts, uncles, in-laws and cousins are not eligible to sponsor relatives for immigration.
FAMILY PREFERENCE CATEGORIES
Certain family members of lawful permanent residents and the extended family members of U.S. citizens are eligible for a limited number of family visas each year, allocated pursuant to preference categories.
First Family Preference (F1) The first family preference category is reserved for the unmarried children of U.S. citizens (any age) and their children. A total of 23,400 visas are available each fiscal year for individuals in the first family preference category.
Second Family Preference (F2) The second family preference category is for spouses, minor children and the unmarried children (over the age of 20) of lawful permanent residents. Of the 114,200 visas available in the second preference category, a minimum of 77% will be allotted to spouses and minor children each year.
Third Family Preference (F3) The married children of U.S. citizens, as well as their spouses and children, are eligible for the third family preference category which is capped at 23,400 visas annually.
Fourth Family Preference (F4) The brothers and sisters of U.S. citizens, as well as their spouses and children, are eligible for the fourth family preference category. The U.S. citizen must be at least 21 years old to sponsor a relative for one of the 65,000 visas available annually in the fourth preference category.
To sponsor a relative for immigration to the U.S., an individual must meet the following requirements:
Be a U.S. citizen or lawful permanent resident;
Be at least 18 years old in order to sign the Affidavit of Support (described below); and
Have a U.S. residence or domicile
Though the U.S. immigration laws do not specify a minimum age required to sponsor relatives for immigration, to sign the Affidavit of Support and legally acquire a domicile one must be at least 18 years of age.
To apply for a family visa, the U.S. citizen or lawful permanent resident sponsor must take the following steps with the USCIS:
File and receive approval of an I-130 Petition for Alien Relative;
Demonstrate their ability to financially support the relative(s) they are sponsoring at, minimally, 125% above the mandated poverty line; and
Accept legal responsibility for financially supporting their sponsored relative(s) by executing an Affidavit of Support (Form I-864).
Once the U.S. citizen or lawful permanent resident sponsor has completed the steps above, the sponsored relative must apply for an immigrant visa at a U.S. Consulate or Embassy abroad or apply for adjustment of status if in the United States.
In the event there are more qualified applicants than family visas available, the USCIS will issue visas (in chronological order according to each petition's filing date) until the category has been exhausted. The filing date of the I-130 Petition for Alien Relative establishes an applicant's priority date for immigration purposes and the applicant will not be issued an immigrant visa until their priority date is current.
Individuals that want to live and work in the United States typically obtain a work visa. Work visas encompass a variety of classifications. The appropriate work visa will depend upon the proposed position and job duties, as well as the applicant’s qualifications. Applications for virtually all work visas are filed on Form I-129 Petition for a Nonimmigrant Worker by the prospective U.S. employer sponsor. Once the Form I-129 Petition for a Nonimmigrant Worker has been approved, the foreign national employee can change their nonimmigrant status if in the United States or obtain a visa from a U.S. Consulate or Embassy abroad.
types of work visaS
There are a variety of work visas available to foreign nationals seeking employment in the United States. Some of the more common work visas include:
H-1B: A classification for workers who have completed the equivalent of a U.S. Bachelor’s degree or higher and will work in a specialty occupation in the U.S. that requires the theoretical and practical application of specialized knowledge;
L-1A: A classification for intracompany transferees who have and will work in an executive or managerial position and have worked for a branch, parent, affiliate, or subsidiary abroad for at least 1 out of the preceding 3 years;
L-1B: A classification for intracompany transferees who have gained and will utilize specialized knowledge about their employer’s products, processes, procedures or services, and have worked for a branch, parent, affiliate, or subsidiary abroad for at least 1 out of the preceding 3 years;
O-1: A classification for individuals with extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements in the motion picture and television field who intend to continue working in their field in the U.S.;
TN: A classification for nationals of Canada and Mexico who will work in a professional occupation in the U.S. and have the required qualifications as set forth in the North American Free Trade Agreement (NAFTA);
E-1: A classification for nationals of countries that have a Treaty of Friendship, Commerce and Navigation or Bilateral Investment Treaty with the United States and wish to come to the U.S. to conduct substantial trade between the U.S. and the treaty country; and
E-2: A classification for nationals of countries that have a Treaty of Friendship, Commerce and Navigation or Bilateral Investment Treaty with the United States and wish to come to the U.S. to direct and develop the operations of an enterprise in which they have invested a significant amount of capital.
Work visas can provide an avenue for foreign national employees to obtain an employment-based green card. Some classifications require the employer to file a labor certification to initiate the green card process, whereas others allow the employer to immediately file an I-140 Petition for Alien Worker on behalf of their foreign national employee. After the I-140 Immigrant Petition for Alien Worker has been approved, the foreign national employee may complete the final step in the green card process and file their I-485 Application to Register Permanent Residence or Adjust Status when their priority date is current. To fully understand the work visas for which an individual is eligible, as well as the applicable green card procedures, an experienced immigration attorney should be consulted.
Though the card itself is not actually green in color, the Alien Registration Card is commonly referred to as a green card and issued to foreign nationals who are lawful permanent residents of the United States. Historically, foreign nationals were required to register their status, i.e. student, worker, resident, etc., with the U.S. government. In return, the foreign national would receive a registration receipt. Those who received a permanent residence permit would receive a green receipt, giving rise to the term green card as it is used today.
GREEN CARD PRESERVATION
Once a green card is obtained, the lawful permanent resident must uphold the conditions that come along with being a green card holder. One condition is the intent to permanently reside in the United States. Absences from the United States for extended periods of time can lead to the presumption that a foreign national’s permanent residence and green card status have been abandoned. A lawful permanent resident can use the green card for travel, but admission to the U.S. after more than one year abroad will not be granted with just the green card. Af ter an absence from the United States for more than one year, the green card holder must apply for a reentry permit. The reentry permit is valid for two years and allows the green card holder to reenter the U.S. without being presumed to have abandoned their permanent residence.
Furthermore, green card holders are susceptible to deportation if they commit an offense for which they are removable. Thus, to maintain their green card, a foreign national should refrain from violating not only the immigration laws, but criminal laws as well.
CITIZENSHIP RESIDENCY REQUIREMENT
After a green card holder has lived continuously in the United States for 5 years, they are eligible to apply for citizenship. Green card holders that have been married to and living with the same U.S. citizen may be eligible to apply for citizenship after only 3 years. Prolonged absences from the United States not only jeopardize the preservation of the green card, but also disrupt a lawful permanent resident’s continuous residence for citizenship.
OBTAINING A GREEN CARD
There are multiple avenues available for a foreign national to obtain a green card, including employment, family, asylum, lottery, registry and Congressional act.
Employment-Based Foreign nationals on work visas may be eligible to apply for an employment-based green card. An approved labor certification is required for most employment-based green cards prior to the employer sponsor’s filing of the I-140 Immigrant Petition for Alien Worker.
Once the I 140 Immigrant Petition for Alien Worker is approved and the foreign national employee’s priority date is current, the green card process can be completed by filing Form I-485 Application To Register Permanent Residence or Adjust Status.
Family-Based: U.S. citizens and legal permanent residents may sponsor certain immediate family members for a green card. The U.S. citizen or lawful permanent resident sponsor must file Form I 130 Petition for Alien Relative and, if their relative is already in the United States, Form I-485 Application to Register Permanent Residence or Adjust Status. Whereas qualifying family members located in the U.S. can usually complete the green card process without having to travel abroad, relatives living abroad must complete the process at a U.S. Consulate or Embassy.
Asylum: Foreign nationals that have been granted asylum or refugee status are eligible to apply for a green card. While foreign nationals granted asylum have the option to apply for a green card 1 year after entry as an asylee, foreign nationals in refugee status must apply for a green card 1 year after being admitted as a refugee. To apply for a green card, a refugee or asylee must file Form I-485 Application to Register Permanent Residence or Adjust Status.
Registry: Foreign nationals that have been continuously present in the U.S., lawfully or unlawfully, since January 1, 1972 may be eligible for a green card based on the registry provisions of U.S. immigration law. To complete the green card process, an eligible foreign national must file Form I-485 Application to Register Permanent Residence or Adjust Status.
Lottery: Each year the Department of State holds a diversity visa lottery as part of the Diversity Immigrant Visa Program. From October to December, individuals from countries with low rates of immigration to the U.S. may register for the lottery online. Individuals that have been randomly selected to receive one of the 50,000 visas available are notified by mail. The applicant must otherwise qualify for admission to the U.S. to receive the visa.
Congressional Act: The United States Congress, from time to time, will enact a law that grants certain groups the ability to apply for a green card. For example, the U.S. Congress passed the Indochinese Parole Adjustment Act on November 1, 2000, allowing certain individuals from Vietnam, Cambodia and Laos to adjust their status and apply for a green card. The applicants must meet the qualifications and follow the application procedures set forth by Congress.
An individual can become a citizen of the United States in one of two ways: birth or naturalization. The primary method by which a majority of the population attains citizenship is through birth. An individual born within the territorial United States or to U.S. citizen parents outside of the United States is automatically a citizen. The second method by which one may become a citizen is through naturalization. Lawful permanent residents can become citizens of the United States through naturalization provided they meet the criteria discussed below.
The following groups of individuals are eligible to apply for U.S. citizenship through naturalization:
Lawful permanent residents that have lived continuously in the United States for 5 years and are at least 18 years old;
Lawful permanent residents age 18 or older (that have been a lawful permanent resident for at least three years), married to and living with the same U.S. citizen for the past three years and their spouse has been a U.S. citizen for at least three years;
Certain individuals who are nationals of the United States and are at least 18 years old; and
Certain individuals who have served honorably in the U.S. Armed Forces.
A qualified individual must submit an N-400 Application for Naturalization and have lived in the state where their application is filed for at least 3 months. In addition to the N-400 Application for Naturalization, the applicant must demonstrate:
They have been lawfully admitted to the United States;
Physical presence in addition to continuous permanent residence;
Good moral character;
Attachment to the U.S. Constitution;
An ability to read, write, speak, and understand basic English; and
Knowledge of U.S. civics (history and government) through a civics test.
Once the lawful permanent resident has fulfilled all of the requirements for naturalization, they are invited to take part in a naturalization ceremony. At the naturalization ceremony, the prospective U.S. citizen must take an oath of allegiance to the United States.
50/20 & 50/15 EXCEPTIONS
Exceptions to the English language requirement exist for applicants who, at the time of filing their N-400 Application for Naturalization, are of a certain age and have been a lawful permanent resident of the United States for a significant period of time. Specifically, individuals age 50 or older who have been a permanent resident for at least 20 years are exempt from the English language requirement and may be able to take the civics test in their native language. Similarly, individuals who are 55 years old and have resided in the United States as a lawful permanent resident for at least 15 years are eligible for the same accommodations. The United States Citizenship and Immigration Services (USCIS) will give special consideration regarding the civics requirement to lawful permanent residents age 65 or older that have lived in the U.S. for a minimum of 20 years.
CONTINUOUS PERMANENT RESIDENCE
A lawful permanent resident must be able to prove they have continuously resided in the United States for 5 years preceding their application for citizenship, or 3 years if married to and living with someone who has been a citizen for at least 3 years. Continuous residence means the individual has not left the U.S. for periods greater than 6 months. If the individual applying for citizenship has left the U.S. for more than 6 months they risk disrupting the continuity of their residence. An exception may apply if the foreign national can prove their absence from the U.S. for greater than 6 months, but less than one year, did not disrupt the continuity of their permanent residence. Evidence, such as the following, can be used to prove continuous residence for absences from the U.S. between 6 months and one year:
Maintenance of employment in the U.S. during the period of absence;
Immediate family members remained in the United States;
The lawful permanent resident retained full access to their United States residence; and/or
The lawful permanent resident did not obtain employment abroad.
For absences from the U.S. greater than one year, the applicant's continuous residence is presumed to be disrupted and there is no evidence that can rebut this presumption. However, upon returning from abroad, the applicant may apply for naturalization 4 years and one day after returning to the U.S. (if their continuous residence requirement is 5 years) or 2 years and one day after returning to the U.S. (if their continuous residence requirement is 3 years).
Physical presence requires that the lawful permanent resident actually be located in the United States for approximately half of the time required for their continuous residence requirement. Thus, if a lawful permanent has a 5 year continuous residence requirement, they must be physically present in the United States for periods totaling approximately two and a half years. Likewise, if the lawful permanent resident's continuous residence requirement is 3 years, they must be have actually been in the United States for periods equal to one and a half years.