Under the Immigration Act, an “Immigrant” is someone who is seeking to come to the US (or is coming to the US) to reside here permanently. There are three main avenues to become a lawful permanent resident (Green Card holder). The first is through family; the second is through an employer; and the third is through a humanitarian application.
How can someone immigrate (or get a green card) through their family?
The United States’ immigration laws prioritize reunification of families. Unfortunately, not all family members are eligible to immigrate through their family members, and even for those who can, the waits for visas can be long.
The first step to immigrating through family is for the United States citizen or lawful permanent resident family member to file an immigrant petition. Citizens can petition for their spouses, children (which means unmarried and under 21), sons and daughters, and parents (but only if the citizen is above the age of 21). Lawful permanent residents can petition for their spouse, children, and unmarried sons and daughters. Likewise, there are provisions that allow widows of citizens and the abused spouses, parents, and children of citizens or permanent residents to self-petition.
Once the petition is approved, the foreign national who wishes to immigrate can apply for lawful permanent residence. He or she can do so, however, only once a visa is available. This is the case even if the foreign national is already in the United States and plans to apply for a green card inside the US. A visa must still be available.
What does it mean to have a visa available? The Immigration Act creates a priority or “preference” system and then divides the visas provided by Congress among those categories. When those visas have been taken, a waitlist (or backlog) develops. The foreign national must wait until his or her “number” is called. That number is his or her “priority date” which is the date when the petition is filed by the citizen or lawful permanent resident relative. Immediate relatives of citizens (spouses, parents, and children) have no wait for a visa. A visa is always available. All of the other categories have to wait, and the length of the wait is determined in part by the category he or she is in and the country he or she is from. You can find information about visa availability on the Department of State’s website (here).
So I have a visa available, what do I do now?
In general, once a visa is available, the foreign national can apply for a visa abroad if he or she is already abroad, or in the United States if he or she is inside the US. There are some significant exceptions, however, to applying for a green card (adjustment of status) in the United States. The primary exception is if the foreign national entered the country without inspection by an immigration officer. If the foreign national was not inspected upon entering the US, then he or she is cannot apply for a green card in the United States must return home for a visa. In addition, if the foreign national ever failed to maintain lawful status or worked without authorization, he or she might not be eligible to apply for a green card in the United States (there are further exceptions to this rule, and your attorney can discuss those with you).
If the foreign national has ever committed certain immigration violations, has certain medical conditions, committed certain crimes, or is affiliated in any way with terrorist or security organizations, he or she might not be eligible for a visa unless there is a waiver available. These bases for preventing someone from immigrating are called “grounds of inadmissibility.” Not all, but some grounds of inadmissibility are “waivable,” which means that the foreign national asks that immigration overlooks the ground of inadmissibility and permits the foreign national to obtain a visa and enter the country.
For family-based cases, one of the most common grounds of inadmissibility is the “unlawful presence” bars. If someone has been in the United States after overstaying a visa or after entering without inspection, and then leaves the country, certain bars to returning might apply. If the person spent more than 180 days but less than 1 year without status in the US and then leaves, he or she cannot return for three years. If the stay was more than one year, he or she cannot return for 10 years. These three and ten year bars may be waived in some circumstances.
How can someone immigrate through an employer?
Like with the family process, the employment-based process generally requires a petitioner, which is the employer. Exceptions exist for individuals who have extraordinary ability in their field, or for those whose work is within the national interest.
While every case is different, in general, there are three categories in which an employee would apply for a green card. Two of these categories—EB-2 and EB-3—usually require an employer first to “test” the labor market to ensure that no US qualified workers. Once the Department of Labor has certified that there are no qualified workers, the employer can then file an immigrant petition with the immigration services (USCIS) to demonstrate that the employee is qualified for the position. If that petition is approved, the employee can then apply for a visa from abroad to come as a lawful permanent resident or, in some circumstances, if he or she has been maintaining valid immigration status in the United States, the employee may be able to apply for green card inside the United States through an adjustment of status. See above for more information on potential complications related to visas applications.
What options are available for someone who has humanitarian needs?
The “humanitarian” category is a broad one, but for our purposes we include individuals who have asylum or refugee status and those who have U or T Visas and are ready to apply for lawful permanent residence. The individual requirements for applying for green cards in each of these statuses vary greatly. An asylee or refugee can usually apply for permanent residence after a year in status. A U or T nonimmigrant has to wait three years to apply.
The underlying applications can also be complicated, and the Popp Law Office has extensive experience helping individuals apply for asylum and visas based on domestic violence, trafficking, and other crimes.