Francisco A. Laguna & Annapurna Nandyal
As part of “Ask Me Anything (Within Reason)” to celebrate our 100th blog post, we received a request to blog about the basics of US immigration law. Thank you for the suggestion! Today we are starting a recurring series on immigration, which will include one or two posts a month on the subject. We start with a discussion of the various immigrant visas issued by the United States.
“America is and always has been a nation of immigrants,” President Barack Obama, 2014
Non-citizens and aliens can gain lawful entry into the US either as a permanent immigrant or as a temporary visitor (nonimmigrant).
In the permanent visa category, aliens are formally classified as “immigrants” and are admitted as lawful permanent residents (LPRs). LPRs receive a permanent resident card, commonly referred to as green card, which permits them to work and reside legally in the United States. They must file US income tax returns, pay employment taxes and receive Social Security and other government benefits. If they meet other criteria, LPRs may later apply for naturalized citizenship.
There are various ways to gain admission to the US as a permanent resident, including:
- family based admissions;
- employer sponsored residency;
- refugees, asylees and other humanitarian reasons;
- beneficiaries of diversity visa programs; and
- investment programs.
Family-based and employment-based visas require that a relative or employer sponsor an individual by filing an application with the U.S. Citizenship and Immigration Services (USCIS). Individuals interested in applying under the other categories may file petitions personally.
Below is a basic overview of the permanent visa categories.
Family-Based Immigration: A US citizen or a legal permanent resident may petition to bring certain family members to the US as LRPs. The family-based visa category is divided into two basic categories: immediate relatives; and family preferences. The immediate relatives category is not limit to a specific number of the visas, but certain requirements must be met, such as age restrictions and the sponsor’s financial capacity. Immediate relatives include:
- Alien spouse of an US citizen;
- Unmarried, alien children of US citizens (under 21 years old); and
- Alien parents of US citizens (petitioner must be at least 21 years old to petition a parent).
The family preferences visa category is subject to quotas, i.e., there is a limited number of visas available in any given year. Like the immediate relatives category, the petitioner must be of certain age and meet certain financial requirements. Family preferences include:
- Alien, adult children (married and unmarried) and brothers and sisters of US citizens (petitioner must be at least 21 years to petition for a sibling); and
- Spouses and unmarried children (minor or adult) of LPRs.
Employment-Based Immigration: Under this category, US employers may sponsor foreign workers either on a temporary or permanent employment basis. Today, we focus on permanent employment visa possibilities. A US employer may sponsor a prospective or current foreign employee, who is either inside or outside US and who may qualify under one or more employment-based (EB) immigrant visa categories. These EB visa categories are divided into several preferences organized by occupational priorities as mandated by Congress. There are 140,000 permanent-employment based visas available annually, divided into five types of EB preferences namely EB1, EB2, EB3, EB4 and EB5, each subject to numerical limits. In addition to the numerical limits placed upon the various immigration preferences, there is also a limit on how many immigrants can come to the U.S. from one country. Currently, no group of permanent immigrants (family-based and employment-based) from a single country can exceed 7% of the total number of people immigrating to the US in a single year.
Refugees and Asylees: Any individual refugee or asylee can seek permanent visa, provided s/he:
- currently resides outside the US; and
- suffers persecution or fear of persecution in his / her home country due to race, religion, nationality, political opinion or membership in a particular social group.
A refugee can seek admission to include his / her spouse, children (unmarried and under the age of 21 years) and, under limited circumstances, other family members. The admission of refugee’s turns on numerous factors such as the person’s demonstration of the degree of risk they face in their home country and whether or not they have family members in the US. If admitted, a refugee can immediately work in the US under a work permit and can apply for a green card after one year.
Asylees must meet the same persecution criteria as refugees; however, they can be present in US at the time of applying for permanent immigration status, with or without proper documentation.
Diversity Visa Program: Each year, the Department of State (DOS) administers a diversity immigrant visa program, drawn from random selection among all entries of individuals from countries with low rates of immigration to the United States. This visa program is limited to 50,000 annually, and certain countries, such as China, India and Mexico, which send more than 50,000 immigrants to the US over the last five years, cannot participate. To be eligible for a diversity visa, an immigrant must have a high-school education (or its equivalent) or have, within the past five years, a minimum of two years working in a profession requiring at least two years of training or experience.
Investment: Like many countries, the US’s immigrant investor visa program is meant to attract wealthy people to invest into the economy. This visa type comes under the employment based visa program and is known as employment fifth preference or an EB-5 immigrant visa. Investors are allowed LPR status upon entry to the US. To be eligible under this visa type program, investors should meet the following criteria:
- a minimum investment of $ 1,000,000 investment in a commercial enterprise; or
- a $ 500,000 investment in a high-unemployment or rural area, considered a targeted employment area.
A qualifying investment must, within two years, create full-time jobs for at least 10 US citizens, lawful permanent residents or other immigrants authorized to work in the United States, not including the investor and the investor’s spouse or children. Green cards for investors are limited to 10,000 per year. Of these, 3,000 are reserved for investors in rural areas or areas of high unemployment.
TransLegal is available corporations and individuals navigate the intricacies of the US immigration system. Call us with your questions.