FB

Family-Based Immigration

There are various ways of obtaining permanent resident or immigrant status in the United States. However, one of the most common paths to residency or immigrant status is through a qualifying family member. Unfortunately, not all family members are created equal and the "type" of family relationship dictates how long a relative must wait before obtaining lawful immigrant or permanent resident status in the US. As a general rule, immigrating thorough a qualifying relative is initiated when a US citizen relative files an I-130 relative visa petition.

Immediate relatives

Immediate relatives are not subject to a numerical limit. Therefore, someone who is an "immediate relative" does not have to wait for visa availability in order to immigrate to the United States.

Question: Who is an "immediate relative"?
Answer: Spouses and parents of a US citizen are immediate relatives. Children of US citizens are also immediate relatives provided they are below the age of 21 and unmarried. Once a "child" turns 21, the child ceases to be an immediate relative and becomes either a first preference or third preference relative depending on whether or not the child is married.

Question: Can a US citizen child file a petition for his parent?
Answer: The USC child must be at least 21 years old before he can file for a parent.

Question: Who is a "child"?
Answer:

A child is -

  • Born in wedlock;
  • Step-child who is under the age of 18 at the time the step-relationship was created;
  • Child legitimated before the age of 18 and in custody of the father at time of legitimation;
  • Child born out of wedlock and if relationship claimed is through the father, evidence of a bona fide parent-child relationship exists;
  • Adopted child if adopted blow the age of 16 and the adopting parent has two years physical and legal custody of the child;
  • Certain orphans


Question: If the US citizen spouse dies before his wife obtains immigrant status, can the wife still become a permanent resident or immigrant?
Answer: The widow or widower of a US citizen can obtain residency if he or she was married at the time of the US citizen spouse's death and he or she files the petition within two years of the US citizen spouse's death. The appropriate petition would be the I-360. If an I-130 was already pending at the time of death, the I-130 is converted to an I-360 petition.

There is no requirement that the widow or widower be married to the deceased US citizen spouse for at least two years or that the deceased US citizen spouse must have been a US citizen for two years.


VAWA Self-Petitioners

The spouse, child, or parent of a US citizen who is battered or subject to extreme cruelty may self-petition by filing the Form I-360 without the abusive USC or permanent resident spouse or parent's support. The child of the battered spouse is not required to file a separate petition and may be included in the same petition.

The abused spouse is not required to be married or living with the abusive USC or permanent resident spouse at the time of filing. However, the abused spouse must show that she resided with the abusive USC or permanent resident spouse; she (or the child) was battered or subject to extreme cruelty during the marriage; the marriage was entered into in good faith; she is otherwise eligible for immediate relative status; and she is a person of good moral character.

Note where child is the victim of abuse: The abuse to a child may have occurred before the marriage; there is no requirement that the marriage was bona fide; and child may petition until age 25 if he can demonstrate the "abuse was at least one central reason for the filing delay"; if the child files the I-360 before the age of 21 but turns 21 while the petition is pending, the child does not "age-out" even if the I-360 is approved after the child is 21 years old.

Conditional Residents

If the marriage between a US citizen and non-US citizen is less than two years at the time the immigrant visa application or adjustment of status application is approved, conditional residency will be granted for only two years. Ninety days before the second anniversary of the grant of residency, an application to remove the conditions (Form I-751) must be filed with the Service Center along with documentation supporting the marital bona fides. Failure to file a timely application will result in the automatic termination of conditional resident status.

Preference Immigrants

There is a numerical limit for visas issued to qualifying relatives of US citizens and permanent residents. Relatives who are not immediate relatives and come under one of the categories below, must wait for visa to become available. Visa availability is determined by a person's priority date.

For family-based petitions, the priority date is the date the I-130 visa petition was filed and received at the Service Center. The priority date is not the date of approval of the petition, which can come years later.

Categories of preference relatives:

Child Status Protection Act (CSPA)

There CSPA establishes rules in determining whether or not a child has "aged-out". The formula takes the child's age at the time an immigrant visa becomes available to the parent and deducting the number of days/ years the petition has been pending. If qualified, the child must seek to acquire permanent resident status within one year of the time the priority date is current.

Under the CSPA, a petition filed for an immediate relative child who turns 21 while the petition is pending remains an immediate relative as long as the child does not marry.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


EB - 1

Employment Based First Preference

There are three subcategories of Employment First Preference:

Aliens of Extraordinary Ability (E11)

An extraordinary ability immigrant is someone who possesses a level of expertise that places him in the top 10 percent, a very small percentage, of his field of endeavor. He is an individual who has demonstrated and continues to demonstrate sustained national or international acclaim and whose achievements have been recognized in the arts, sciences, business, or athletics.

The immigrant classification for an alien of extraordinary ability is "E11". INA Section 203 (B) (1) (A).

Petitioner requirements: An alien (self-petitioner) or any person on behalf of the alien may file an E11 petition. The only requirement is that the petitioner must sign the petition. If self-petitioning, the alien must meet the petitioner and beneficiary requirements.

No labor certification or ability to pay is required for the E11 classification. However, the petition must be accompanied by evidence to establish that the alien is coming to the US to continue to work in the area of expertise. Such evidence may include: letter from prospective employer(s), contracts for prearranged work, a statement from the beneficiary detailing plans or other appropriate evidence to establish the beneficiary will work in the field of expertise.

Beneficiary requirements: In order to qualify as an alien of extraordinary ability, one must:

  1. Have sustained national or international acclaim;
  2. Come to the US to continue in the same field of endeavor; and
  3. Substantially benefit prospectively the United States

USCIS has stated it is the quality and caliber of the evidence and not merely the quantity which determines the significance of the beneficiary's contributions.

Outstanding Professors and Researchers (E-12)

An outstanding professor or researcher is someone who is recognized internationally as outstanding in their academic achievements

The immigrant visa classification for an outstanding professor or researcher is "E12". INA Section 203 (b) (1) (B).

Petitioner requirements:

  1. University or institution of higher education offering a tenured or tenure-track teaching position or a permanent research position in the alien's academic field and/or private employer offering a permanent research position. If a private employer, employer must show the employer has at least three persons working full-time in research positions and that the employer's department, division or institution has achieved documented accomplishments in an academic field. A permanent offer is defined as an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued permanent employment unless there is good cause for termination.
  2. Demonstrate ability to pay

Beneficiary requirements

  1. Three years teaching or researching in the academic area
  2. Recognized internationally
  3. Coming to the US to work in a tenured or tenure track teaching or comparable research position at a university or other institution of higher education or comparable position in private industry

Beneficiary cannot self-petition and employer must provide offer of employment but no labor certification is required.

Multinational Executive or Manager (E-13)

A qualifying US employer may file Form I-140 petition on behalf of an alien beneficiary requesting classification as a multinational executive or manager.

The immigrant visa classification of a multinational executive or manager is "E13". INA Section 203(b) (1) (C).

Petitioner Requirements:

  1. The US organization and the organization abroad are qualifying organizations;
  2. The US organization and organization are both actively engaged in doing business; the US organization has been actively engaged in doing business for at least one year; and
  3. The US organization has the ability to pay the beneficiary's salary.

Beneficiary's Requirements:

The Petitioner must demonstrate that the:

  1. 1. Beneficiary has been employed in a primarily executive or managerial capacity with a qualifying organization abroad for one continuous year with thin the three years immediately preceding the filing of the petition; and
  2. 2. Beneficiary will be employed in a primarily executive or managerial capacity with a qualifying organization in the US (8 CFR Sec. 204.5(j)(3) and 204.5(g)(2))

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


EB - 2

Employment Based Second Preference

There is one subcategory of Employment Second Preference, E21

The E21 NIW may be filed by a US employer or by the foreign beneficiary.

The E21 Advanced Degree and Exceptional Ability classifications require a US employer.

Aliens of Exceptional ability (E21)

The E21 category is for an individual who is (1) a member of the professions holding advanced degree or (2) because of his exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States, referred to as the National Interest Waiver (NIW).

The immigrant visa classification for an alien of exceptional ability is "E21". INA Section 203 (b) (2) (A), (B), (C).

Petitioner requirements:

Beneficiary Requirements: The beneficiary must meet all of the requirements at the time the priority date is established.

If the basis for the application is that the job requires an advanced degree, then the applicant must possess the advanced degree at the time the PERM labor certification is filed, or in some cases, at the time the visa petition is filed.

An advanced degree is defined as:

Applicant using an advanced degree "equivalent"

For an advanced degree satisfied by a bachelor's degree and five years progressive experience - an advanced degree equivalent - the beneficiary must have the actual bachelor's degree or its foreign equivalent. A "functional equivalent" or equivalency based on a combination of education and experience is unacceptable for a bachelor's degree. Therefore, the beneficiary who wishes to qualify for second preference based on a bachelor's degree and five years progressive experience in this instance would not qualify for second preference classification.

5 years post-baccalaureate progressive experience

The five years post baccalaureate experience must be obtained after the applicant obtained his bachelor's degree and must show progressive responsibilities in job duties Refer to Cronin on Bachelor's plus five years of experience: Education and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrant, Cronin HQ 70/6.2.

Exceptional ability in the sciences, arts or business

Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

National interest

National interest must be significantly higher than that required to establish prospective national benefit for all persons seeking exceptional status.

The 7 factors to be considered (NYSDOT) are:

  1. Improving the US economy;
  2. Improving the wages and working conditions for US workers;
  3. Improving education programs for US children and underqualified workers
  4. Improving health care;
  5. Providing more affordable housing;
  6. Improving the US environment and making more productive use of natural resources;
  7. Interested government agency request

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


EB - 3

Employment-Based Third Preference

There are three subcategories of Employment Third Preference:

Every approved immigrant petition (Form I-140) has a priority date.

A priority date is used to determine the availability of an immigrant visa for the beneficiary of an immigrant petition. Visas are issued in the various classifications based upon this priority date. For third preference workers, the priority date is established on the date the PERM labor certification is filed with the US Department of Labor.

The Program Electronic Review Management (PERM) process is an application a US employer files with the US Department of Labor (DOL) on behalf of a foreign worker. It is the US employer's burden to show to the satisfaction of DOL that there are no qualified US workers for the position being certified. In order to do this, the employer is required to conduct recruitment of the US labor market for the position being certified.

A third preference beneficiary will lose his priority date if:

  1. The US Department of Labor denies the PERM application; or
  2. If the PERM application is approved, the employer fails to file the I-140 visa petition within 180 days of its approval;
  3. If the PERM application is approved, the employer files the I-140 visa petition during the six-month validity period but USCIS denies the petition; or
  4. If the PERM application is approved, the employer files the I-140 visa petition during the validity period, the visa petition is approved but USCIS subsequently revokes its approval of the visa petition under Section 204(e), which is non-entitlement to the preference classification, or Section 205 (revocation for good an sufficient cause) of the Immigration and Nationality Act.

Barring a revocation of an approved visa petition, the third preference beneficiary, retains the earliest priority date of any previously approved I-140 visa petition (8 C.F.R. Sec. 204.5(e).

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


EB - 4

Employment Based Fourth Preference

Other Workers Classification includes:

  1. Certain Religious Workers
  2. Employees of US Government or American Institute in Taiwan for 15 years
  3. Panama Canal Treaty Employees and their Spouses and Children
  4. International Medical Graduates (IMGs)
  5. G-4s
  6. Special Immigrant Juveniles
  7. US Service Members Who Honorably Served on Active Duty for 12 years
  8. NATO Civilian Employees
  9. BBG Broadcasters
  10. Translators with the US Armed Forces
  11. Iraqis Providing Faithful and Valuable Service to US
  12. Afghan Allies Protection Act of 2009

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


EB - 5

Employment Based Fifth Preference

Targeted Employment Areas/Regional Centers and Pilot Programs

The basic program allows for conditional residency for individuals who invest $1 million (or in targeted employment areas $500,0000) in a new commercial enterprise that will eventually employ 10 full-time United States citizens or authorized immigrant workers.

In the alternative, an individual may invest through a regional center, which is defined as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.

Because this can be a highly complex and specialized area of the law, no further information can be provided. Interested parties should contact the firm directly.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


Diversity Visa

Foreign national from certain countries may participate in an immigration visa lottery and be eligible for permanent residency. The qualified applicant must have at least the equivalent of a high school education, or at least two years of work experience ion a field requiring at least two years experience in the five years prior to applying. Only 55,000 individuals are selected each year from designated countries.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


Political Asylum

An individual or refugee granted political asylum may file for an immigrant visa within one year of admission (in the case of a refugee) or after a favorable decision (in the case of an asylee).

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


Cancellation of Removal

A foreign national who has been in the US continuously for at least 10 years, has been a person of good moral character and has had no convictions, and can show that removal would be an exceptional and extreme hardship to his spouse, parent, or child who is a US citizen or permanent resident may be eligible for permanent residency.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


Registry

A foreign national who entered the US prior to January 1, 1972, has continuously resided in the US since such entry, is a person of good moral character, and is not deportable for terrorist activities may be eligible to apply for an immigrant visa.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.


Legalization

Certain classes of foreign nationals may obtain permanent residency upon special congressional enactments such as "amnesty" or "legalization". Although rare, a foreign national may also obtain permanent residency through private legislation.

The information contained in this section is very general and not intended to be a substitute for specific legal advice regarding an individual matter. Immigration law is highly specialized and is constantly changing. If you wish information specific to your case, please contact our office. We have assisted US companies and individuals in all aspects of immigration law for more than 20 years.