Becoming a Resident
Through Family Sponsorship
A lawful permanent resident is a foregin national who has been granted the privilege of permanently living and working in the United States. Such status can be accorded through a petition filed by a family member.
However, the USCIS categorizes family petitions into two separate categories. A qualified immigration attorney like those at Sunstate Immigration can help decipher what you need and also help you attain the documentation. The first category is that of Immediate Relatives. These include:
- the spouse of a United States citizen;
- the minor child (under 21 years of age) of a United States citizen.
- The parent of a United States Citizen. However, the United States citizen must be at least 21 years of age in order to petition for his/her parent;
Individuals classified as immediate relatives are immediately eligible to adjust status to that of a lawful permanent resident. They do not have to wait for a visa number to become available to them. If the applicant is in the United States, they may file the necessary paperwork in the United States and await an interview. However, if the applicant is outside of the United States, they will require consular processing.
The second category of classification is that of the Preferred Relative. These individuals include:
- Adult sons/daughters of United States citizens, who are either married or single;
- Spouses and children of lawful permanent residents. However, while a lawful permanent resident may sponsor a minor child or adult son/daughter, they may not sponsor any children who are married;
- Siblings of United States citizens. The United States citizen must be at least 21 years of age.
Individuals classified as preferred relatives are not immediately eligible to adjust status to that of a lawful permanent resident. They must await the availability of a visa number, as issued by the U.S. Department of State. For a reivew of the timeframe of visa availability please visit the U.S. Department of State website, or click on the following link: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html
Immigration and Nationality Act § 245(i)
Whether an individual is classified as an immediate or preferred relative, there may be obstacles to adjusting status to that of a lawful permanent resident. Said obstacles normally arise when the individual is present in the United States and wishes to pursue adjustment of status therein. Per the Immigration and Nationality Act, an individual who entered the United States illegally, i.e., the individual entered without inspection, may not adjust status in the United States. Additionally, a preferred relative who entered the United States legally, but did not maitain authorized stay, will be deemed inadmissible. The USCIS will require that the individual return to their native country and request consular processing. Unfortunately, if the individual had any period of unauthorized stay in the United States in excess of 6 months / 1 year, they will barred from reentering the United States for 3/10 years.
In an effort to ameliorate this predicament, the U.S. government has made exceptions to the above inadmissibility factors. Namely, if an individual is grandfathered under § 245(i) of the Act, they may adjust status in the United States by paying a fine to the USCIS. For guidance on whether an applicant may be grandfathered under the law, please visit the following link: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/245iclarification030905.pdf
Determining whether an individual is grandfathered under § 245(i) can be a complicated and daunting task. Many individuals are unaware that the protection under the law can be acquired dervatively, i.e., through a parent, or that they may be exempt from the physical presence requirement of the law. Should you need assistance in this regard, Diaz Shafer, P.A. is both capable and willing to assist you with this matter.
If your family member is already in the United States, and qualifies for residency as described above, then your family member can "adjust status" here in the US, without leaving to go to his or her home country.
If your family member is outside of the United States, and qualifies for residency as described above, then your family member will need to apply for an Immigrant Visa, issued by a US Embassy or Consulate abroad.
Immigration Through Labor Certification
Currently, there are four categories for granting permanent residence to foreign nationals based upon employment:
EB-1 Priority workers
- Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics;
- Foreign nationals that are outstanding professors or researchers;
- Foreign nationals that are managers and executives subject to international transfer to the United States.
EB-2 Professionals with advanced degrees or persons with exceptional ability
- Foreign nationals of exceptional ability in the sciences, arts or business;
- Foreign nationals that are advanced degree professionals;
- Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.
EB-3 Skilled or professional workers
- Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category);
- Foreign national skilled workers (minimum two years training and experience);
- Foreign national unskilled workers.
EB-4 Special Immigrants
- Foreign national religious workers;
- Employees and former employees of the U.S. Government abroad.
To begin, the foreign national and employer must determine if the foreign national is eligible for lawful permanent residency under one of above categories. Second, most employment categories require that the U.S. employer complete a permanent labor certification (ETA Form 9089) with the Department of Labor (DOL). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. If certified, the employer will then have to file an immigrant petition, Form I-140 (or Form I-360 for religious workers) with USCIS. Lastly, the foreign national must await immigrant visa availability, as set forth by the Department of State. For a review of the timeframe of visa availability please visit the U.S. Department of State website, or click on the following link: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html
Schedule A Occupations
Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the Department of Labor has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.
The occupations listed under Schedule A include:
- Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy;
- Professional Nurses - the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX - RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment;
- Sciences or arts (except performing arts) - Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studed at a college or university in order to qualify for the Group II occupation;
- Performing arts - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.
An employer shall apply for a labor certification for a Schedule A occupation by filing an ETA Form 9089, in duplicate with the appropriate USCIS Center, not with the Department of Labor.
Through the Diversity Lottery
The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries to individuals who are from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS). For DV-2017, the following countries are excluded from participating: Bangladesh, Brazil, Canada, China (mainland only), Columbia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland), Vietnam.
For an applicant to adjust status under the DV Program, you must establish that you:
-Have been selected for a diversity visa by DOS's lottery
-Have an immigrant visa immediately available at the time of filing an adjustment application (Form I-485, Application to Register Permanent Residence or Adjust Status); and
-Are admissible to the United States.
Through Immigrant Investment
About the EB-5 Visa
The USCIS administers the Immigrant Investor Program, also known as “EB-5,” All EB-5 investors must invest in a new commercial enterprise, and create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
The minimum qualifying investment in the United States is $1 million. The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving a USCIS-designated Regional Center. A Regional Center is an entity, organization or agency that has been approved as such by the USCIS; focuses on a specific geographic area within the United States; and, seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. Investors must demonstrate that a qualified investment is being made in a new commercial enterprise located within an approved Regional Center; and, how using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.
Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.
Investors must create an original business; purchase an existing business and simultaneously or subsequently restructure or reorganize the business such that a new commercial enterprise results; or expand an existing business by 140 percent of the pre-investment number of jobs or net worth, or retain all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months.
Investors must also demonstrate that they have invested, or are in the process of investing, at least $1,000,000, or at least $500,000 where the investment is being made in a targeted employment area. A targeted employment area is an area that has experienced unemployment of at least 150 percent of the national average rate or a rural area as designated by Office of Management and Budget.
The investor's new commercial enterprise must benefit the United States economy and create full-time employment for not fewer than 10 qualified individuals; or maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth ove the past 12 to 24 months.
Through Political Asylum
To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status. You must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:
- Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
- You filed within a reasonable amount of time given those circumstances.
If your case is not approved and you do not have a legal immigration status, your case will be referred to an Immigration Judge at the Executive Office for Immigration Review (EOIR).
Through Domestic Abuse
Spouse: You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also file as an abused spouse if your child has been abused by your U.S. citizen or permanent resident spouse. You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.
Parent: You may file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen son or daughter.
Child: You may file for yourself if you are an abused child under 21, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. You may also file for yourself as a child after age 21 but before age 25 if you can demonstrate that the abuse was the main reason for the delay in filing.
Qualifying spousal relationship:
- You are married to a U.S. citizen or permanent resident abuser or
- your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition, or
- your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence, or
- you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.
- You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:\
- You have been abused by your U.S. citizen or permanent resident spouse, or
- your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse.
- You entered into the marriage in good faith, not solely for immigration benefits.
- You have resided with your spouse.
- You are a person of good moral character.
Qualifying parent/child relationship:
- You are the child of a U.S. citizen or permanent resident abuser, or
- you are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.
- You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.
- You have resided with your abusive parent.
- You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.
Qualifying parent/son or daughter relationship:
- You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or
- you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or
- you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.
- You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.
- You have resided with the abusive son or daughter.
- You are a person of good moral character.