Most of us know, to some extent, the options for establishing legal residency in the United States. Therefore, what follows is not meant to be an exhaustive discussion, but rather a brief guide for those who are less familiar with this topic.
As a general rule, the U.S. government grants a limited number of visas each year. As a result, for some visa categories there is a waiting list and the person who qualifies will have to wait until a visa becomes available.
The categories listed below represent the most important ways to obtain residency in the United States. Particular circumstances of each case are considered before a decision is made, so two similar cases can often be solved differently.
(1) ADOPTION
In general, to adopt a child outside the United States requires that the petition be made either by:
- A family in which at least one spouse is a U.S.citizen, or
- An unmarried U.S.citizen over the age of 25.
(2) ASYLUM / REFUGE
The person who is in the United States and proves founded fear of persecution on account of (1) political opinion, (2) religion (3) race, (4) nationality, or (5) belonging to a certain group social can be granted asylum. The application for asylum would include husband / wife and unmarried children aged up to 21 years. After a year from the time asylum was granted, the person may apply for permanent residence (green card). The person who is outside the United States can apply for refugee status if it meets one of the conditions listed above. Thus, the difference between a person seeking asylum and a refugee is the territory where the application is filled out (outside or inside the U.S).
(3) MARRIAGE
Marriage to a U.S. citizen or a legal permanent resident generally offers the possibility of obtaining a green card. However, if the marriage took place less than two years before the time of acquiring residency, the green card will be valid for two years only (conditional residence). Generally, the removal of the condition is made at the end of the 2 years based on proof of the marriage’s good faith.
In limited circumstances, people who entered illegally and are currently in the United States (or those outside the U.S. who are banned from entry), could obtain the right to permanent residence as a result of marriage to a U.S. citizen or legal permanent resident if they are able to prove extreme hardship to the U.S. spouse, child or parent. But these situations are very limited and must be considered on a case-by-case basis.
(4) FAMILY
Spouses, children, parents, brothers and sisters ofU.S. citizens can qualify for a green card. Most often, however, it takes years until a visa becomes available.
One exception to this rule is the category of “immediate relatives” where there is no waiting period:
- Unmarried children (under 21 years) of an American citizen.
- Husband / wife of an American citizen.
- Parent of a U.S.citizen (provided that the U.S.citizen is at least 21 years of age).
A second category called “Family-sponsored preferences” implies a waiting period for a visa to become available and includes:
- Unmarried children (over the age of 21) of a U.S.citizen.
- Husband / wife and children (under the age of 21) of a legal permanent resident (green card holder).
- Unmarried children (over the age of 21) of a legal permanent resident.
- Married children (over the age of 21) of an American citizen.
- Sibling of an American citizen.
As mentioned previously, this second category involves a waiting period check here the approximate waiting time: http://travel.state.gov/visa/bulletin/bulletin_1360.html.
(5) INVESTMENT
Foreign investors wishing either to start a business in the United States or to develop an existing business that is in financial difficulty could be able to obtain legal permanent residency if they meet the following conditions:
- Invest $ 500,000 in certain areas considered disadvantaged or $1 million anywhere;
- The U.S. economy benefits from the products created and / or services;
- Create at least 10 jobs, and
- The investor is directly involved in the business’ management or through the company’s governing bodies.
The Green Card obtained this way is conditioned for an initial period of two years. If at the end of this period all the conditions above are satisfied, the investor and his family will receive green cards free of any condition.
(6) JOB
People who acquire a green card as a result of job offers must go through a process called PERM certification which is obtained from the U.S. Department of Labor. The certification indicates that:
- There are not enoughU.S.workers able, willing, qualified for the position and available in the geographic area where its activity company that made the job offer, and
- American workers will not lose their jobs due to the employment of the foreigner.
A job offer is not a prerequisite (and, as a consequence, no labor certification is needed) for certain special categories such as:
- “People with extraordinary ability in sciences, arts, education, business or sports” (e.g. athletes of international fame, researchers with numerous international awards, etc.)
- People with Masters Degrees or holders of university degree with 5 years of professional experience.
- Persons with exceptional abilities in science, arts, athletics or business.
*For category (b) and (c) it is required to prove that it is in the interest of the United States not to require a labor certification because the benefits brought to the national economy, cultural and educational interests and the welfare of the U.S. outweighs the need for labor certification (national interest waiver)
(7) DIVERSITY VISA LOTTERY
Unlike other immigrant visas, this category does not require a petition from a sponsor (U.S. citizen or legal permanent resident). The procedure is simple in that it only needs an electronic application submitted within a period of approximately one month (between October and November of each year). The U.S. government does not charge any fee for the 50,000 visas granted annually under this category. Those who apply can check online if they were selected, at www.dvlottery.state.gov.
NOTE: This article is for informational purposes only and does not constitute legal advice. For a detailed analysis of certain situations, those interested are urged to consult a lawyer.