[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Bruce Buchanan, The I-9 and E-Verify Handbook.]
What are the four basic categories of immigrant visas?
The four basic categories of immigrant visas are the following:
- Family-sponsored immigrants
- Employment-based immigrants
- Diversity immigrants
- Refugees and Asylees
What are the relevant issues and waiting periods for family-based immigrants?
For immediate relatives
Faster processing is an option, and no quotas exist. The types of questions relevant for family-sponsored immigrants include:
- Are you the spouse of a U.S. citizen?
- Are you a child of a U.S. citizen who is under the age of 21?
- Are you the parent of a U.S. citizen over the age of 21?
For preference categories
The types of questions and waiting periods relevant for family-sponsored immigrants include:
- First Preference: Are you an adult, unmarried child of a U.S. citizen? If the answer is yes, the wait is around 6 ½ years, unless you are a national of Mexico or the Philippines, in which case the wait could be longer.
- Second Preference A: Are you under the age of 18 and either the child or the spouse of a green-card holder? If the answer is yes, the wait is around two years.
- Second Preference B: Are you the adult child of a green-card holder? If the answer is yes, the wait is around 6 ½ years, unless you are a national of Mexico or the Philippines, in which care the wait could be longer.
- Third Preference: Are you a married child of a U.S. citizen? If the answer is yes, the wait is around 12 years, unless you are a national of Mexico or the Philippines, in which case the wait could be longer.
- Fourth Preference: Are you the brother or sister of a U.S. citizen? If the answer is yes, the wait is 13 years, unless you are a national of India, Mexico, or the Philippines, in which case the wait could be longer.
How are these waiting periods are determined?
The U.S. Department of State’s Visa Bulletin from April 2017 dictate these waiting periods. These bulletins, found at www.travel.state.gov, announce the current waiting periods every month. The previously mentioned waiting periods are approximations, and in order to know the most accurate waiting period, the most up-to-date Visa Bulletin must be checked.
What is the implication of marriage to a U.S. citizen?
A common and quick way of acquiring permanent residency status is to marry a U.S. citizen. U.S. Citizenship and Immigration Services (USCIS) still must assess the marriage to determine whether the primary motivation of the marriage was acquiring a green card.
Can a person convert from one immigrant-preference or immediate-relative category to another?
Cases may automatically convert from one category to another once an individual’s age and marital status change. Accordingly, certain rights and priority dates may be retained for children once they turn age 21.
What types of issues are pertinent for Diversity Visa applicants?
The following kinds of issues are relevant to the USCIS for Diversity Visa applicants:
- Are you a high school graduate?
- Do you work in a field which typically requires two years of work experience, and do you have those two years of work experience?
- Were you bornin an eligible lottery country?
What types of issues are pertinent to the Diversity Visa green-card lottery?
The following kinds of issues are relevant to the USCIS to the Diversity Visa green card lottery:
- The United States government annually allocates 50,000 visas which are distributed through a random computer drawing.
- Fewer than 1 in 40 applicants are successful.
- Entering the lottery is easy.
- The entry period is limited and generally takes place in the last quarter of the calendar year (October to December).
What types of issues are pertinent for the EB-1-1 green card?
The following are relevant issues in USCIS’ determination of whether to approve an EB-1-1:
- Are you a person of extraordinary ability in the field of science, art, education, business, or athletics?
- Are you one of the top people in your field?
- Can you demonstrate that you have won a major international award or at least three of the following??
- Documentation of your receipt of nationally or internationally recognized prizes or award for excellence in the field of endeavor.
- Documentation of your membership to associations in the field for which classification is sought, which requires outstanding achievements of association members, as judged by recognized national or international experts in their disciplines or fields.
- Published material in professional or major trade publications or in major media about you, relating to your work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation.
- Evidence of your participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought.
- Evidence of your original scientific, scholarly, or business-related contributions of major significance in the field.
- Evidence of your authorship of scholarly articles in the field, in professional journals, or in other major media.
- Evidence of your employment in a critical or essential capacity for organization and establishments that have a distinguished reputation.
- Evidence that you have commanded and now command a high salary or other remuneration for services, evidenced by contracts or other reliable documentation.
Is it necessary to be employed in order to obtain the EB-1-1 green card?
While employment is not necessary, the applicant is required to demonstrate his or her intent to secure employment.
What types of issues are pertinent for the EB-1-2 green card?
The following kinds of issues are relevant to the USCIS EB-1-2 green card:
- Are you internationally recognized as outstanding in a specific academic area?
- Do you have three years of experience either in teaching or research within your area?
- Are you coming to the U.S. with the intention of working in a tenured or tenure-track teaching position or in a long-term research position?
- Are you capable of presenting evidence of your international recognition in your academic field by producing evidence of at least two of the following?
- Receipt of major prizes or awards of outstanding achievement.
- Membership in an association which requires outstanding achievement.
- Published material in professional publications written by others about your work.
- Participation as a judge of the work of others.
- Original scientific research.
- Authorship of scholarly books or articles in the field.
Is the EB-1-2 green card identical to the L-1 visa?
The EB-1-3 is virtually identical to the L-1 intracompany transfer nonimmigrant via, but the major differences are its unavailability to specialized knowledge employees and its requirement that the U.S. branch maintain operation for at least one year.
What types of issues are pertinent for the EB-2 green card?
The following kinds of issues are relevant to the USCIS EB-2 green card:
- Do you have a degree beyond a bachelor’s degree, or do you have five years of experience in your field in addition to your bachelor’s degree?
- Do you meet the definition of exceptional ability by showing three of the following?
- Degree relating to the area of exceptional ability.
- Letter from a current or former employer indicating at least 10 years of experience.
- License to practice the profession.
- A salary or remuneration indicative of exceptional ability.
- Membership in a professional association.
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, or a professional or business organization.
- Do you have a job offer and labor certification, or is your green-card application based upon benefiting the nation’s interest?
- If the base of your claim is rooted in labor certification, do you work in a field that has a shortage of U.S. employees in the local area in which you intend to work?
- If your claim is based on a labor certification, are you going to be compensated the prevailing wage for similarly employed employees in the city in which you intend to work?
- If your claim is based on labor certification, has your employer already attempted recruitment of permanent residents for the position?
- If your claim is based on a national interest waiver, do you pass the following tests?
- The person seeks employment in an area of substantial intrinsic merif.
- The benefit will be national in scope.
- The national interest would be adversely affected by a labor certification requirement.
What is the processing time for the EB-2 green card?
While processing times vary, labor certification cases generally take somewhere between six months to one year; national interest cases take somewhere between six to 18 months.
Is employment a requirement for the EB-2 application?
Employment is not a requirement for national interest waiver cases.
Who is eligible for the EB-3 green card?
University graduates are eligible for the EB-3 green card, and people employed at a position which requires a minimum of two years of experience can file under this category as long as the employer secures a labor certification.
What is the subcategory of the EB-3 green card?
It is for unskilled employees without work experience or an education requirement but who have a labor certification requirement.
Is the EB-4 green card the same as the R-1 visa?
Essentially, they have the same requirements, however an EB-4 applicant must have been working int eh field for a minimum of two years.
What types of issues are pertinent with regard to the EB-5 green card?
- Are you investing in a business in the United States?
- Is the business new, or are you buying into a restructured business?
- Are you investing a minimum of $500,000 if the business is in a rural, high unemployment area or a designated target employment area (TEA), or $1 million if located elsewhere? It is worth noting that USCIS has proposed raising these figures to $1.35 million and $1.8 million for TEAs and non-TEAs respectively.
- Is your investment in the form of cash, inventory, equipment, another form of tangible property, cash equivalents, and indebtedness secured by assets owned by the entrepreneur?
- Is the investment “at risk”?
- Can you document the legitimacy of the funds’ source?
- Will the investment result in the creation of a minimum of 10 full-time positions for U.S. employees?
What are the considerations made by USCIS when granting the EB-5 green card?
USCIS carefully analyzes these cases. Though the investment and job creation do not, technically, need to take place until after the green card is granted, USCIS has demonstrated that it will deny an EB-5 unless both the investment and job creation occur prior to the submission of the application. Applicants can avoid demonstrating direct job creation by investing in a preapproved regional investment center. Furthermore, applicants applying through regional centers are not required to demonstrate their involvement in management.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.