ABCs of Immigration: Introduction to Lawful Permanent Residency (The ‘Green Card’)

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Elissa Taub, The Physician Immigration Handbook.]

Typically, physicians entering the United States to train do so with a nonimmigrant visa and generally stay in nonimmigrant visa status for several years. Physicians who choose to remain in the United States for an indefinite period generally are required at some point to convert to lawful permanent resident (LPR) status, commonly referred to as the “green card.” The term “immigrant visa” refers to the visa used to enter the country as an LPR.

There are numerous methods of obtaining a green card in the United States; some are based on a physician’s work, others on family sponsorship. Other less common ways of obtaining a green card include investing a specific amount of money in a business which creates jobs for United States workers, entering an annual green-card lottery, and filing for permanent residency upon obtaining asylum status. However, the majority of foreign physicians obtain permanent residency through either their professional work or family sponsorship, therefore those are going to be discussed **–*(**

What is lawful permanent residency?

As indicated in its title, lawful permanent residency permits individuals to remain in the United States indefinitely. In contrast, nonimmigrant status requires the visa holder to adhere to requirements specific to the visa category and the duration of stay is limited. The majority of individuals who are permanent residents in the United States obtain their status through family sponsorship or an employment category.

What is the difference between having a green card and having citizenship?

Though green-card holders are permitted to remain indefinitely in the United States and work in virtually any area of employment without requiring a sponsorship, there are numerous integral limitations that exist for green-card holders that do not apply to citizens. Three of the most noteworthy are the following:

1. Citizens can vote and serve on juries;
2. Citizenship by nature has permanence, whereas lawful permanent residency can be lost if an individual goes abroad for an extended period and is deemed to have abandoned U.S. residency or commits a criminal offense that makes one removable.
3. Citizens receive priority in terms of sponsoring family members for permanent residency.

What are the categories of permanent residency?

• Family sponsorship – U.S. citizens and LPRs are capable of sponsoring relatives in various categories; there are quotas for certain categories that can cause backlogs for many years.
• Employment–based – Individuals who are engaged in certain types of employment or investments are eligible to seek benefits in five employment-based preference categories.
• Asylees and refugees – individuals who are admitted as refugees or are granted asylum in the United States are eligible for permanent residency one year after having received refugee or asylee status.
• Registry – Individuals who have continuously been in the United States since 1972 and are capable of demonstrating good moral character are eligible for permanent residency. One noteworthy exemption is those who are subject to the J-1 home-residency requirement are ineligible for the registry without a waiver.
• Cancellation of removal – Individuals who have been in the United States for at least 10 years, who have good moral character, and the removal of whom would cause an extreme hardship to a spouse, parent, or child, may seek permanent residency in the midst of removal proceedings.’
• Diversity immigrant visas – Nationals of certain countries are eligible to participate in an annual green-card lottery each year.
• Legalization – In 1986, a law was passed permitting certain individuals to apply for permanent residency, provided they have been in the United States for several years out of status. Over the past 10 years, Congress has debated the creation of a new legalization program.

What are the family green-card categories?

The family green-card program is divided between “immediate relatives” and various preference categories. Included in the immediate relative category are spouses of U.S. citizens, parents of adult U.S. citizens, and minor children of U.S. citizens. The following are the family preference categories:

• First preference: (F-1) – unmarried adult sons and daughters of U.S. citizens.
• Second preference (F-2A) – spouses and minor children of LPRs.
• Second preference (F-2B) – unmarries adult sons and daughters of LPRs.
• Third preference (F3) – married sons or daughters of U.S. citizens.
• Fourth preference (F4) – siblings of U.S. citizens.

How does immigration law define “spouse,” “child,” “parent,” and “child”?

A spousal relationship can be used as the basis for an immigrant petition as long as it involves a legally valid marriage, is recognized in the place in which it was created, and was not entered into for the sole purpose of facilitating immigration. Individuals who receive a green card on the basis of their marriage to a U.S. citizen who were married for less than two years at the granting of their permanent residency will receive a two-year conditional green card. In this situation, the individual is eligible to seek an unconditional green card if the marriage is intake or, if the couple is no longer together, the green-card holder can demonstrate that the marriage was not entered into on the sole basis of immigration purposes.

A parent includes biological parents, stepparents when the stepparent relationship with the child was established before the child turned 18, and certain adoptive parents. Out-of-wedlock children are eligible to petition their parents if they are able to demonstrate a parent-child relationship, such as a DNA test or evidence of the parent supporting the child.

For sibling petitions, it is required that the U.S. citizen document that there is at least one common parent.

Children who are born out-of-wedlock may also obtain immigration benefits from a mother. The child is capable of obtaining immigration benefits from a father, but only if the child is “legitimized before the child’s 18^th birthday. This is possible if the parents have since married or the father can establish a “bona fide parent-child relationship,” which can be demonstrated by proving that the child and father live together or that the father financially supported the child before the child turned 21. A stepchild will be considered the same as a biological child if the relationship was created before the child turns 18.

The stepparent relationship, with regards to immigration purposes, will continue even after a divorce, contingent upon the stepparent maintaining a parental relationship with the child.

Children who are adopted can receive immigration benefits if they were adopted before turning 16 and if they have been in the legal custody of and resided with the adopting family for a minimum period of two years. This adoption age can be 18 if there are multiple children being adopted.

Orphans are children whose parents are deceased, missing, or have abandoned them, and who do not have a surviving parent capable of providing for them. If the child does have a surviving parent, that parent must relinquish the child for adoption. In orphan cases, the child must be under the age of 16 and unmarried in order to qualify as an immediate relative of a U.S. citizen.

What quotas apply to family cases?

Perhaps the most prominent advantage of petitioning for an immediate relative is the absence of a cap or quota placed upon the number of available green cards. This is in opposition to the family preference categories, which can have backlogs of years or even longer for certain nationalities seeking green cards in the family preference category. It is worth remembering, however, that green card processing for an immediate relative can take a number of months, even without having to wait for a quota number.

Though there is no limitation on the number of immediate relative petitions which can be granted, there is a total cap of 480,000 on family-based numbers. Immediate relatives are subtracted from that total cap, and the amount left over may go to preference categories. A minimum of 226,000 are designated for the preference categories. Therefore, if the number of immediate relatives exceeds 254,000, the overall number of family-based green cards granted will exceed 480,000.

Below are the family preference green-card allocations:

• First preference (F-1) (unmarried sons and daughters of U.S. citizens- 23,400 visas annually, in addition to visas remaining from the fourth preference.
• Second preference (F-2A) (spouses and minor children of LPRs) – 87,900 visas annually, in addition to numbers remaining from the first preference.
• Second preference (F-2B) (unmarried adult children of LPRs) – 26,300 visas annually, in addition to any visas left over from the first preference.
• Third preference (F3) (married adult children of U.S. citizens) – 23,400 visas annually, in addition to any visas left from the first and second preference categories.
• Fourth preference (F4) (brothers and sisters of U.S. citizens over 21) – 65,000 visas annually, in addition to any visas left over from the first through third preferences.

Employment-based green-cards that are unused are rolled over to the family-based visa categories in the following years, and unused family-based numbers in one year will roll into the next year.

What are the employment-based green-card categories?

There are around 140,000 green cards made available every year in the following employment-based categories:

EB-1: This category receives an allocation of 40,000, or 28.6 percent, of the worldwide employment-based numbers, not including any numbers not required by the EB-4 and EB-5 categories. There are three groups of workers included within the EB-5 category: individuals with extraordinary ability in the arts, athletics, sciences, education, and business; multinational managers and executives; and outstanding researchers and professors. It is not uncommon for physicians to file petitions within the extraordinary ability and outstanding researchers/professors categories. As of this publication, this category is current and applicants face no backlogs.

EB-2: This category receives an allocation of 40,000, or 28,6 percent, of the worldwide employment-based numbers, not including any numbers required in the EB-1 category. Professionals holding advanced degrees or persons with extraordinary ability are able to apply under this category, and it is the most common category used by physicians. As of this publication, this category is current with the exception of Chinese and Indian nationals. Chinese applicants face an additional three-year wait, while Indian nationals face an additional seven-year wait.

EB-3: This category receives an allocation of 40,000, or 28.6 percent, of the worldwide employment-based numbers, not including any numbers required in the EB-1 and EB-2 categories. It is open to skilled workers, professionals, and other workers. Most positions which are filled by physicians require a medical degree, so it is uncommon for a physician to use this category.

EB-4: This category receives an allocation of 10,000, or 7.1 percent, of the worldwide employment-based numbers. This category is primarily utilized by certain types of religious workers.

EB-5: This category receives an allocation of 10,000, or 7.1 percent, of the worldwide employment-based numbers. It is reserved for investors in businesses and projects which will lead to the generation of employment for American workers. It is not uncommon for physicians to utilize this category to avoid years of waiting time which would come with applying under the EB-2 category and to bring family members to the United States more quickly. As of this publication, this category is current with the exception of a four-year backlog facing Chinese nationals.

What are the limitations per country?

There are limitations within each family-based preference green-card category placed upon the number of green cards capable of being granted to individuals within a particular nationality each year. The immediate relative category is exempt from these limitations. Additionally, per country limits exist in employment-based categories.

No greater than 7 percent of visas in any category can be granted to citizens of any country in a given fiscal year, spanning from October 1 to September 30. However, this is not an independent allotment; instead it is a limit placed upon the allocations previously mentioned. This is why the Department of State lists separate waiting times for nationals of Mexico in the family categories and India and China in the employment categories. The spillovers from other categories previously mentioned are not subject to the per-country limits, which can actually help alleviate the backlogs for some nationalities.

Do physicians need to possess a medical license to qualify for a green card?

Generally, yes most of the time this is a requirement for physicians. Similar to H-1Bs, there is a requirement that physicians demonstrate their qualifications for the position for which they are petitioning. Therefore, for permanent labor certification petitions through the Program Electronic Review Management System (PERM) and most physician National Interest Waiver (NIW) cases, the physician will need to have the medical license from the beginning. This requirement is not applicable to positions which do not have patient care as an aspect of the position, such as researcher positions.

Do physicians need to pass credentialing examinations to qualify for an employment-based green card?

Sometimes this is the case. The general requirement is that a physician must pass all of the required medical licensing exams, which means those graduating in recent years must pass all three parts of the U.S. Medical Licensing Examination (USMLE). Most physicians immigrating to the United States have trained in the country and passed these examinations years earlier when qualifying for an H-1B. For Canadians and other doctors who are somehow able to qualify for a medical license and coming at a later time in their careers, however, this may present more of a problem.

There are some categories that are exempt from this, such as the EB-1 extraordinary ability and professor/researcher categories. In the EB-2 classification for PERM labor certification and for most physician NIW cases, it is required that the physician pass the U.S. license examinations even though they may be able to secure a medical license without them. The exemption to this would be if the position does not involve patient care and a medical license.

In a June 17, 2009 memorandum regarding revisions to the Adjudicator’s Filed Manual, U.S. Citizenship and Immigration Services (USCIS) noted:

22.2(j)(5) excludes alien physicians who are coming to the United States principally to perform services as a member of the medical profession unless they have passed parts I and II of the National Board of Medical Examiners Examination (NBME exam) or an equivalent exam as determined by the Secretary of Health and Human Services and they are competent in written and oral English. However, this exclusion ground only applies to alien physicians seeking admission as an alien classified under section 203(b)(2) or section 203(b)(3) of the Act. In addition, the definition of “graduates of a medical school: in section 101(a)(41) exempts aliens who are of national or international renown in the field of medicine. Therefore, if a physician qualifies under section 203(b)(1) as an alien of extraordinary ability or an outstanding professor or researcher, passage of the NBME exam is not necessary. Physicians who are immigrating under sections 203(b)(2) or 203(b)(3) are required to pass the NBME exam. However, the DOL regulations require passage of the exam to obtain a labor certification. Therefore, if the alien has an individual labor certification, he has already demonstrated compliance with this requirement to the DOL and does not have to submit evidence of it with the I-140.

That leaves the physician immigrating under section 203(b)(2) who is requesting a waiver of the job offer requirement in the national interest. Such an alien does not have an individual labor certification and, therefore, must submit evidence of passage of the examination with the I-140. Remember, this only applies if the physician will be involved in patient care. Researchers, teachers, etc., are not subject to this requirement. In addition, the exclusion ground does not apply if the alien was fully and permanently licensed to practice medicine in a State of the U.S. on January 9, 1978, and was practicing medicine in a State of the U.S. on that date

How do I know how long the wait is for a green-card number?

The Department of State publishes a monthly periodical called the Visa Bulletin, listing each preference category, separating it for countries that are hitting the per-country limits previously mentioned.

This Bulletin lists “final action” dates for each of the family- and employment-based categories. An individual receives this “priority date” based on the filing date of his or her green card or labor certification application. The final action dates indicate what priority date a person needs to proceed with the final processing of a green card. Numerous categories have a “c” listed, meaning that it is current, and no waiting is necessary for availability of a green-card number. In some cases, a “u” will appear, which indicates the category has been completely filled for the fiscal year.

What are the stages of the green-card process?

There are multiple stages for the various family- and employment-based green-card cases. Regarding family cases, the U.S. citizen or permanent resident relative is to file a Form I-130, petition for Alien Relative application on behalf of the family member. This application is primarily focused on documenting the qualifying relationship.

Once a priority date is current, the relative will proceed with a final application for permanent residency via consular processing outside the United States or by applying for “adjustment of status” using Form I-485, Application to Register Permanent Residence or Adjustment of Status, in the United States. This phase is primarily focused on documenting the admissibility of the individual. It is in this phase where screenings such as background checks, medical exams, or other such measures. For immediate relatives where there are no backlogs, the Forms I-130 and I-485 can be filed concurrently.

With respect to employment-based cases, there might be three phases to the case. Most physicians file for permanent residency in the EB-2 category base on the filing of a labor certification application with the U.S. Department of Labor, which documents the employer’s offering of a position for which no qualified American workers are readily available. This process, referred to as PERM can take many months to complete.

Subsequently, an employer files an I-140, Immigrant Petition for Alien Worker, documenting the prospective immigrant’s adherence to the qualifications of the position certified in the PERM position and the employer’s ability to compensate the individual with the required salary. The third stage is similar to the family-based categories, either consular processing or filing for adjustment of status. Once it is determined that the physician does not need to face a backlog, which currently effects Indian and Chinese doctors exclusively, the I-485 adjustment of status application may be filed together with the FormI-140.

What are the differences between consular processing an immigrant visa and filing for adjustment of status?

The Department of State at a U.S. consulate in the physician’s home country handles the consular processing. Though uncommon, sometimes there is no consulate in the home country or the physician faces danger if he or she should return to the country. In these situations, a U.S. consulate in another country may agree to process the case. Consular processing of an immigrant visa involves initial data entry at Department of State offices in the United States and then transfer of the process to the local U.S. consulate.

It is necessary for the applicant to have a medical examination in the home country and have an interview with a consular officer. Upon approval from the officer, the applicant will receive a packet to bring to the port of entry. Once the applicant enters the United States, he or she is considered an LPR. Within a few weeks after entering, the applicant will receive the green card in the mail.

In the United States, adjustment-of-status applications are filed with USCIS. The applicant needs to visit a USCIS Application Support Center to be fingerprinted and photographed. In the past, interviews were almost never conducted with employment-based adjustment-of-status applicants, but in October 2017, USCIS initiated a new policy of interviewing every adjustment-of-status applicant.

USCIS officers have received some training on employment-based permanent residence, but by early 2018, the interview process did not appear to delay the adjudication process as feared by many attorneys. However, it still remains to be seen whether the continuation of these interviews will have an effect on the stability of processing times.

Generally, the adjustment-of-status option is more popular of the two, due to its capability of completion within the United States and of providing physicians, and the family members who also apply, with employment authorization/travel documents. At one point, consular processing was more prevalent, because it could be faster than adjustment-of-status. The processing times for adjustment-of-status and consular processing have been comparable for several years, so this consideration is rarely a factor.

Can an individual work on the basis of a pending adjustment application?

Yes. However, if the individual does not have an underlying nonimmigrant status providing work authorization, he or she must wait for issuance of the employment authorization document (EAD). This can have significant value in certain cases, such as a physician running out of H-1B time.

Can an individual travel outside the United States on the basis of a pending adjustment application?

Yes. Traveling without advance permission could potentially result in the adjustment-of-status application being denied on grounds of abandonment, though. Advance permission is granted by filing for and obtaining an advance-parole travel document. Considering that obtaining this application commonly takes two to three months, careful planning regarding the timing of filing an adjustment is imperative.

What are the reasons a green card can be denied?

There are numerous reasons for a green card’s denial. First and foremost, an immigration officer may simply decide that an individual is not qualified for the specific family- or employment-based category.

It is also possible applicants may be deemed inadmissible for criminal violations, for failing to satisfy the J-1 home residency requirement, for being deemed to have committed immigration fraud, for having certain types of communicable diseases, or for having past immigration overstays or status violations.

It is possible to overcome some of these grounds by remaining outside the United States for an extended period of time or obtaining a waiver of the ground of inadmissibility, such as a J-1 home-residency requirement waiver of the bars based on visa overstays, which is tied to a hardship that would be faced by a qualifying American relative.)

How long does it take to get permanent residency once the application process starts?

Typically, this process can take anywhere from six months to several years. This variation is dependent on a variety of factors:

• The particular visa category and how many steps are required for processing;
• Whether a case is selected for a Request for Additional Evidence or an adult;
• Whether the particular green-card category is backlogged or current;
• The nationality of the applicant and whether per-country limits apply to the applicant;
• Whether consular processing or adjustment of status is chosen; and
• Whether the applicant takes advantage of concurrent filing of an adjustment of status application if applicable.

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