United States Lawful Permanent Resident Status (also called “Resident Alien Status” or a “Green Card”) allows an individual to live and work in the United States of America on a permanent basis.
A United States Permanent Resident Card, formerly Alien Registration Card or Alien Registration Receipt Card, is an identification card attesting to the permanent resident status of an alien in the U.S. It is known informally as a green card because it had been green from 1946 until 1964, and it has reverted to that color since May 2010. The green card serves as proof that its holder, a lawful permanent resident (LPR), has been officially granted immigration benefits, which include permission to reside and work in the U.S. The holder must maintain an intention to reside permanently in the U.S. and the green card can be taken away if certain conditions of permanent resident status are not met. Similarly, lawful permanent residents are subject to removal (deportation) from the U.S. on various grounds including convictions of certain crimes.
Green Card through Employment
Perm Labor Certification
PERM (short for Program Electronic Review Management), or Permanent Labor Certification, is a certification issued by the Department of Labor (DOL) that allows an employer to hire a foreign worker to work permanently in the United States. As described in the DOL’s overview of the PERM program, “the DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity 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. The PERM process is the first step towards employment-based lawful permanent residence (Green Card). It is an extremely complicated and frequently changing program with strict requirements for advertising and recruitment of U.S. workers, offered salary, allowable education and experience requirements, and consideration of U.S. applicant qualifications.
Following DOL certification of a PERM application, the U.S. employer must file an I-140 petition with the USCIS within six months of the PERM certification date. Neither the PERM certification nor approval of an I-140 petition provide legal status for the foreign national worker. Rather, they are only prerequisites to the final step of the Green Card process (either “adjustment of status” for individuals lawfully present in the U.S. who have always, with some exceptions, maintained lawful nonimmigrant status or “consular processing” of an Immigrant Visa for individuals who are outside of the U.S. or who do not qualify for adjustment of status).
Following are several options for qualifying for lawful permanent resident status without going through the PERM Labor Certification Process. This list of employment-based options is not exhaustive and evaluation of eligibility for a green card through employment requires a detailed analysis of one’s education, experience, proposed job offer, as well as complete immigration and personal history.
Green Card for Multinational Executives and Managers
Similar to the requirements for L-1A nonimmigrant executives and managers, the green ard process for such individuals requires employment abroad for a qualifying entity (primarily subsidiary, affiliate, or parent companies of a U.S. business). The employment abroad must be for at least one full year and be in an executive or macnagerial capacity. In addition, the foreign national seeking a green card must be transferring to the U.S. company to fill an executive or managerial position and the U.S. company must have been in operation for at least one year. CIS regulations include very strict definitions of executive and managerial functions and thus not every executive or managerial position will qualify. This employment-based green card does not require a prior PERM Labor Certification and “priority date” waiting times are not as long as many other employment-based categories.
Green Card for individuals with Extraordinary Abilities (EB-1)
Individuals with extraordinary ability in their field of expertise can become lawful residents under the EB-1 category without first obtaining a PERM Labor Certification. .To get an EB-1 Green Card, a foreign national can be sponsored by a U.S. employer, but can also file without sponsorship. Waiting times for green cards under this category are usually much, much short than for other employment-based green cards.
The requirements for extraordinary ability Green Card status are very strict and this category is not open to all. It is intended for artists, musicians, scientists, athletes, businesspeople, and others who can demonstrate they have reached the pinnacle of their respective field. Proof of winning a widely recognized award or prize (for example, a Nobel Prize or Academy Award) is sufficient to establish extraordinary ability status, though the high standard can also be satisfied with substantial proof of a long history of recognition for excellence in the field. Examples of successful extraordinary ability green card petitions submitted by Bakken Law include world-reknowned chemists, transportation engineers, flutists, classical guitarists, and a professional speaker.
Immigrant Visa for Outstanding Researchers / Professors
The Outstanding Researcher/Professor category is reserved for people who are recognized internationally for doing outstanding work in their academic field. An immigrant visa (green card) as an Outstanding Researcher/Professor may be easier to obtain than an extraordinary ability green card because the legal requirements are slightly less stringent. In this category, however, the applicant cannot self petition but must be sponsored by a U.S. employer.. A PERM Labor Certification is not required for this category.
National Interest Waivers
The National Interest Waiver (NIW) is another green card category allowing foreign nationals to bypass the cumbersome PERM Labor Certification process. In order to qualify for a National Interest Waiver, the following three requirements must be met. First, the applicant must be seeking employment in an area of substantial intrinsic merit. In other words, applicants must prove that there is something inherently beneficial about the work they propose to do in the U.S. Second, the proposed benefit of the employment should be national in scope (i.e., beneficial to one or more important interests having potential impacts to the entire nation). Third, the applicant must show that one or more national interests would be adversely affected if a PERM Labor Certification were required. National Interest Waivers, along with petitions for extraordinary ability status and outstanding researchers and professors, require a substantial volume of detailed supporting documentation. National Interest Waivers can be a good option for many scientists and engineers, though the category is open to individuals in any field where the National Interest requirements can be established.
Investment Green Cards
The Immigration Act of 1990 created the Immigrant Investor Program as the fifth preference category for employment-based immigration, also known as EB-5, Employment Creation Green Card, or the “Million Dollar Green Card”.. This was the first time a category specifically facilitated the admission of immigrant investors as lawful permanent residents and currently remains the only such category to do so. The EB-5 Immigrant Investor Program is available to those immigrants who have invested, or are in the process of investing at least $1 million in a new commercial enterprise employing at least 10 full-time U.S. or lawful permanent resident workers. Individuals who invest in a “targeted employment area”, however, are only required to invest a minimum of $500,000. The EB-5 program was created to stimulate the U.S. economy through job creation and capital investment by offering immigrant investors the benefits of permanent residency in the United States.
Green Card for Domestic Employee or Unskilled Labor
Domestic workers and unskilled laborers must be sponsored by an employer. The employee must have a job offer from a U.S. employer and also have sufficient experience to meet the minimum qualifications for the offered position. A PERM Labor Certification is required, demonstrating that there are no able, willing, qualified, and available U.S. workers for the position. Temporary work will not qualify for a green card. Once the beneficiary has received the PERM Labor Certification, he/she must wait for an immigrant visa to become available. The eligibility requirements for this category are not as strict as those for other employment-based categories. However, there is a huge backlog in this category and it can take many years before an immigrant visa becomes available.
Green Card through Family
Green Card through Marriage
Green cards are available to spouses of U.S. citizens and lawful permanent residents. Spouses of U.S. citizens are considered “immediate relatives” (as are parents and unmarried minor children of U.S. citizens) and are not subject to quota restrictions thus speeding up the green card processing time. Longer waiting times sometimes apply to spouses of U.S. lawful permanent residents depending on the relevant immigrant visa priority applicable to the foreign spouse’s nationality. As with all U.S. green card categories, eligibility for a green card will depend on one’s personal circumstances including manner of status at entry to the U.S., immigration history, criminal history, and whether final green card processing will be completed in the U.S. or at a U.S. Consulate abroad. Contact Bakken Law for a confidential consultation regarding your specific situation.
Green Card through Same Sex Marriage
As a result of the Supreme Court’s holding on June 26, 2013 that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, Janet Napolitano, the Secretary of Homeland Security, directed US Citizenship and Immigration Services (USCIS) to adjudicate green card applications filed in connection with same-sex marriages in the same manner as those filed in connection with opposite-sex marriages. Accordingly, same-sex spouses of U.S. citizens are considered immediate relatives with no quota restrictions applicable green card availability.
Green Card through Family Member
Other family members of U.S. citizens and permanent residents are eligible to be sponsored for permanent residence in the U.S., including sons and daughters. Brothers and sisters of U.S. citizens may also be sponsored for permanent resident status. Waiting times for final green card processing are much longer for these categories than for immediate relatives, sometimes 15-20 years or longer.
Green Card for Parent(s)
Parents of U.S. citizens are eligible for permanent resident status as immediate relatives. The U.S. citizen petitioner must be 21 years of age or older to apply for a parent's immigration. The process of completing and submitting an application of Green Card for any relative, whether an immediate relative or not, can be confusing and includes requirements in the areas of financial sponsorship, good moral character, as well as entry and lawful presence requirements, among many others.
Green Card for Children
Children of U.S. citizens and lawful permanent residents may be eligible for permanent residency in the U.S. Minor children (under age 21) of U.S. citizens qualify as “immediate relatives.” As explained above, immediate relatives are not subject to numerical limits and can apply for an immigrant visa or green card as soon as a relative petition is approved. As long as the petition for an immigrant visa is filed before the child turns 21, the child qualifies as an immediate relative.
Unmarried sons and daughters (over age 21) of U.S. citizens and lawful permanent residents, as well as married sons and daughters (over age 21) of U.S. citizens, may obtain green cards. Waiting times in these categories can be very long. Orphans, adopted children, and step-children may also qualify for lawful permanent resident status, often as immediate relatives. Very detailed and specific requirements apply to orphans, adopted children, and step-children.
CSPA (the Child Status Protection Act) may apply in some circumstances to allow for lawful permanent resident status for a child even if the child is over 21 years old when final green card processing is completed. CSPA cases are extremely complicated and special care must be taken at all stages of these cases to make sure eligibility exists at the final stage of green card processing.
Green Card for Brothers and/or Sisters
Brothers and sisters of U.S. citizens may by sponsored for green cards if the U.S. citizen petitioner is 21 years of age or older. To qualify as a brother or sister of a U.S. citizen, the brother or sister and the U.S. citizen must share at least one parent in common. Long waiting times apply brothers and sisters of U.S. citizens.
Adjustment of Status versus Consular Processing
U.S. immigration law provides two ways for an individual to obtain lawful permanent resident status (green card). “Adjustment of Status” is the common term used for the process of applying to obtain a green card while physically present in the U.S. If all eligibility requirements are met, including background checks, evidence of lawful entry and maintenance of nonimmigrant status (with some exceptions) to name just a few, the green card applicant can “adjust” to lawful permanent resident status without having to return to his or her home country to complete visa processing.
An individual who is outside the U.S. (or who is in the U.S. but is ineligible to adjust status) may apply for an Immigrant Visa at U.S. Consulate abroad and then enter the U.S. as a permanent resident. This pathway is referred to as "consular processing." Successful completion of either process, adjustment of status or consular processing of an Immigrant Visa, result in a grant of lawful permanent resident status. In some cases, an individual who is eligible to adjust status in the U.S. may choose for personal or business reasons to follow the consular processing pathway.
Petition to Remove Conditions
Permanent Residence Based on Marriage
Immigrants who marry a U.S. citizen and who have been married to the petitioning U.S. citizen for less than two years when granted adjustment of status or when admitted to the U.S. with an Immigrant Visa following consular processing are given a “conditional” permanent resident status. Conditional permanent resident status is valid for two years. A conditional resident has the same rights and responsibilities as a permanent resident. In addition, one’s time as a conditional resident counts towards the time for naturalization (U.S. citizenship) eligibility.
When you obtain conditional residence status, the USCIS will notify you of the conditional basis of your status, the requirements for removal of the conditions and what will happen if you fail to file a petition to remove conditions. You will not get any other reminder when it is time to actually file the petition. You must file a petition to remove the conditional status which, if approved, results in the grant of the ten year green card. The law includes strict requirements for the timing of filing the petition to remove the conditional status.
Green Card Renewal
It is very important, and required by law, to always carry your green card with you and to make sure it is valid at all times. If you are a permanent resident whose ten year green card has expired or will expire within 6 months, you should file an application with USCIS to renew your card. The same application is used to apply for a new green card if your green card is lost or stolen, or if your current card contains inaccurate information.
Provisional Unlawful Presence Waivers
Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children, and parents of U.S. citizens (immediate relatives) can apply for a provisional unlawful presence waiver (also called the “in-country” waiver) before leaving the U.S. to attend an immigrant visa interview at a U.S. Consulate. The provisional unlawful presence waiver process is available to individuals who are inadmissible to the U.S. due only to the unlawful presence ground of inadmissibility. If the waiver application is granted, the individual can then travel to his or her home country for an immigrant visa interview at the U.S. Consulate. The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the U.S. This new waiver process has led to a large percentage of denied waiver applications, though, so it is important to carefully review your eligibility with an experience immigration attorney before you proceed. Please contact Bakken Law if you have questions about your specific circumstances and eligibility for this waiver.