Pathways to a Green Card
There are many different pathways to a Green Card (immigrant visa). Your eligibility for a Green Card will generally depend upon whether you can establish that you have a qualifying relationship to a U.S. citizen or permanent resident individual or employer OR whether you can show that you have a certain status or characteristic, such as, for example, in the case as asylees, special immigrants, or aliens of extraordinary ability. Below is a general breakdown of the different categories, or “Pathways to a Green Card”. While it is not intended to be an exhaustive or comprehensive list, it should give you an idea of the variety of means which are available to you as you think about your immigrant visa possibilities.
Family Based Visas
1) Immigrant Visas NOT SUBJECT to annual numerical limitations (ie. unlimited visas with no quotas)
- Immediate Relatives: The spouse, widow(er) and minor unmarried children of a U.S. citizen, the parent of a U.S. citizen who is 21 years or older.
- Returning Residents: Previous U.S. lawful permanent residents who are returning to the U.S. after a stay of more than one year abroad.
2) Immigrant Visas SUBJECT TO annual numerical limitations (ie. there are limits, or quotas, on the number of visas issued every year):
- First Preference: Unmarried sons or daughters of U.S. citizens who are over age 21, and their children.
- Second Preference: Spouses, children, and unmarried sons and daughters of lawful permanent residents.
- Third Preference: Married Sons and Daughters of U.S. citizens, and their spouses and children.
- Fourth preference: Brothers and Sisters of U.S. Citizens and their spouses and children, provided the U.S. citizens are over 21.
Employment Based Visas
Work and Investor Immigrant Visas are divided into 5 different categories. Each of these categories are subject to annual numerical limitations (a total of 140,000), as well as per country limitations. The categories are:
Employment First Preference (EB-1 Category): The EB-1 Category covers “Priority Workers”, which are:
1. Aliens with “extraordinary ability“: Applicants in this category must show that they have extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized by others in the particular field of expertise through extensive documentation. Although no offer of employment is required and no labor certification is required for workers in this category, applicants must continue to work in their field of extraordinary ability and their entry into the U.S. must substantially and prospectively benefit the U.S.
2. Outstanding professors and researchers. Applicants in this category must show that they are recognized internationally as outstanding in a specific academic area and that they have at least 3 years of experience in teaching or research in the that area. Applicants must be entering the U.S. for (1) a tenured position (or tenure track) position within a university or institution of higher education to teach in the academic area; (2) for a comparable position with a university or institution of higher education to conduct research in that area; or (3) for a comparable position to conduct research in the area with a private employer who employs at least 3 persons full-time in research activities and has achieved documented accomplishments in the academic field. While labor certification is not required for workers in this category, an employer is required (ie. a job offer from a university, research institute, private organization, etc.).
3. Multinational executives and managers. Applicants in this category must show that they were employed abroad by their sponsoring employer as an executive or manager during at least one of the three years preceding the application for admission to the U.S. as a priority worker. Most importantly, the applicant must be coming to the U.S. for the specific purpose of working as an executive or manager for the same organization (or a subsidiary or affiliate) which s/he was employed by abroad. Numerical limitation on EB-1 Category: 40,000 per year.
Employment Second Preference (EB-2 Category): This category covers members of the professions holding advanced degrees or aliens of exceptional ability in science, the arts, or business (or who have the equivalent in education and experience in their particular field). The “professions” referred to in “members of the professions” refers to those jobs which can only be performed by workers who have attained a bachelors degree or higher. “Advanced degrees” refers to those workers who hold a master’s degree (or its equivalent), or a bachelor’s degree plus 5 years of progressive experience in their field. EB-2 applicants must have a standing job offer and the offering employer must complete the “labor certification” process. The labor certification process will test the U.S. job market to show that there are no qualified U.S. workers (U.S. citizens or permanent residents) available for the offered position. Where the applicant can show that it would be in the “national interest” to permit him/her to enter the U.S. and work at the particular job, the INS may waive both the job offer and labor certification requirements. Numerical limitation: 40,000 per year.
Employment Third Preference (EB-3 Category): This category covers “skilled workers” (a job which requires at least 2 years training or experience), professionals (baccalaureate degree or foreign equivalent and/or a person who is a member of the professions), and “other workers” (those performing unskilled jobs which require less than 2 years of training and who are not temporary or seasonal). Applicants must have a standing job offer and the offering employer must complete the labor certification process. Numerical limitation: 40,000 per year, with 10,000 of those going to “other workers”.
Employment Fourth Preference (EB-4 Category): Special immigrants, juvenile court dependents who are eligible for foster care under state law, foreign medical graduates, religious workers, commuters from the border, retired G-4 nonimmigrant (employee of International Organizations), returning residents, person seeking reacquisition of citizenship, U.S. government workers (at least 15 years), employees of the Hong Kong Consulate, and ex-employees of the Panama Canal zone. Numerical limitation: 10,000 per year.
Employment Fifth Preference (EB-5 Category) – The “Investor Visa”: Requires an active investment in a new commercial enterprise which creates at least 10 new full-time jobs for U.S. workers, not including alien or family members of the applicant. Applicant must either invest $500,000 in “targeted employment areas” (rural areas or areas experiencing high unemployment of at least 150% of the national average rate or a rural area which has a population of less than 20,000) or $1,000,000 anywhere else. This would result in the issuance of a 2 year conditional green card, which condition may be removed by the INS after the expiration of the conditional period if the applicant can prove to the USCIS that the enterprise was established, the investment was made and it is being maintained as a commercial enterprise. However, in order to have the condition removed, the applicant must file a specific form with the USCIS within the 90 day period preceding the second anniversary of having been granted conditional residence. Numerical limitation: 10,000 per year, with at least 3,000 going to investors who invest in the targeted employment areas.
Schedule A Labor Certification: From time to time, the U.S. Department of Labor (DOL) determines that labor shortages exist in certain occupations in the U.S. These occupations are compiled and reported in a “Schedule A List”. Employers in need of workers to fill Schedule A occupations may file green card petitions for immigrant employees directly with the INS and are therefore not required to obtain a labor certification from the DOL. This means that the employer is not required to test the U.S. labor market for qualified U.S. workers.
National Interest Waiver: Workers who can demonstrate that they will be coming to the U.S. to do work that is in the “national interest” may get a visa without having a specific job offer and without obtaining a labor certification from the Department of Labor. Under this particular provision of the law, which applies to persons with exceptional ability and members of the professions holding an advanced degree or its equivalent in the sciences, arts, or business (EB-2), it is said that the USCIS “waives” the job offer and the labor certification requirements. While eligible applicants do not need a job offer or employer and may sponsor themselves, they still must show that they will be coming to the U.S. to do work in their particular field and that, if granted permanent residence, they will prospectively and substantially benefit the national interest of the U.S. (ie. economy, culture, welfare, and education).
Special Immigrants
Immigrants who fall under the “Special Immigrant” category include the following:
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- Religious Workers;
- Juveniles adjudicated “dependent” by a U.S court who are also eligible for foster care;
- Certain selected dependents of diplomats;
- Certain holders of S-visas (criminal informants);
- Certain employees of the U.S. government (long term) who are in foreign countries; and
- Certain persons who have served in active duty in the armed forces of the U.S.
Diversity Visa – DV-1 Visas (Green Card Lottery)
Each year the Diversity Visa Lottery makes 55,000 visas available which are given away in a random drawing to individuals from countries with low rates of immigration to the United States. There is a separate registration for each year’s visas. Information on registration procedures is announced each year by the U.S. State Department.
Asylum / Refugee
People who have been persecuted or who have a well-founded fear of persecution in their homeland on account of their race, religion, nationality, membership in a social group, or due to the political opinions that they hold can apply and may qualify for asylum or refugee status. For more information, see Asylum and Refugee Status.
Cancellation of Removal
With certain exceptions, people in removal proceedings (formerly known as deportation or exclusion proceedings) may be eligible for a form of relief from removal known as “Cancellation of Removal” if they can show:
- Continuous residence in the U.S. for 10 years prior to being served with a “Notice to Appear” (the INS charging document)
- Permanent Resident parent, spouse, or child.
- That their removal from the U.S. would cause extreme and exceptional hardship to a U.S. citizen or
- Good moral character (no criminal convictions, etc.)
Note: Cancellation of Removal is also available to permanent residents in removal proceedings who can establish that they have been permanent residents for 5 years, resided in the U.S. continuously for 7 years after having been admitted in any status, and have not been convicted of an “aggravated felony”.
If you have questions about whether you qualify to apply for a Green Card under any of these categories or if you need representation and assistance with your application, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.
