Immigrant Visa Topics
ACQUIRING LAWFUL PERMANENT RESIDENT IMMIGRANT STATUS
A Lawful Permanent Resident (“LPR”) is a foreign national who has been authorized to live and work permanently in the United States. In most cases, in order to become a Lawful Permanent Resident, a foreign national must be sponsored either by an employer or by a qualified relative.
IMMIGRATION THROUGH EMPLOYMENT
If an individual wishes to become an LPR based on the fact that they have a permanent employment opportunity in the United States, or if an employer wants to sponsor an individual for LPR status based on permanent employment in the United States, several steps must be taken.
First, foreign nationals and employer must determine if the foreign national is eligible for lawful permanent residency under one of United States Citizenship & Immigration Services’ “paths” to lawful permanent residency.
The second preference category is allocated 28.6 percent of the yearly worldwide limit, plus any unused first preference visas. The subgroups in this immigrant visa category are:
The three subgroups of the third preference category are eligible to receive 28.6 percent of the yearly worldwide limit for employment-based immigrant visas, plus any unused immigrant visas from the employment-based first and second preferences. Employers filing petitions for prospective employees under this category must demonstrate that the proposed alien worker would be employed in a position for which US workers are unavailable through a process known as Labor Certification through the U.S. Department of Labor. The subgroups are as follows:
This category accounts for 7.1 percent of the yearly worldwide limit and covers a wide variety of applicants, including but not limited to:
These Investors receive 7.1 percent of the yearly worldwide limit. To qualify, applicants must have invested, or be actively in the process of investing, at least $1,000,000 U.S. dollars in a business in the U.S. which they will direct and control. If the investment is in a new business, it must create full-time employment for at least ten U.S. workers (either citizens or permanent residents not including the investor or his/her family). Alternatively, an investment of $500,000 U.S. dollars may also qualify if the business is located in a designated "targeted employment area" in the U.S.
Second, most foreign nationals in the employment based immigrant visa categories require that the U.S. employer complete a labor certification request for the applicant, and submit it to the Department of Labor's Employment and Training Administration. The U.S. Department of Labor must either grant or deny the certification request. A permanent labor certificate issued by the Department of Labor allows an employer to hire a foreign worker to work permanently in the United States. The Department of Labor must certify that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions for similarly employed U.S. workers. The labor certification process is discussed in the "PERM" section below.
Third, once a labor certification is approved or if you fall under the category where a labor certification is not required (first preference category and certain second preference category) the sponsoring employer must submit an I-140 Immigrant Worker Petition. USCIS must approve an immigrant visa petition (Form I-140 Immigrant Visa Petition for Alien Worker) for the foreign national wishing to immigrate to the United States. The employer wishing to bring the foreign national applicant to the United States to work permanently files this petition. The employer acts as the sponsor (or petitioner) for the foreign national applicant (or beneficiary) who wants to live and work on a permanent basis in the United States. The U.S. employer must show its ability to pay the proffered wage, and it must meet 100% of the prevailing wage in the appropriate state.
Fourth, as there are numerical limitations on the number of immigrant visas (green cards), we must determine if there are sufficient green cards to proceed to the next and usually final step of the process. The U.S. Department of State must give the foreign national applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant and he/she can proceed to the next step. The status of visa number availability can be checked on the Department of State's Visa Bulletin at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
U.S. law limits the number of immigrant visa numbers available each year. This means that even if the USCIS approves an immigrant visa petition, an immigrant visa number may not be available immediately. In some cases, several years could pass between the time USCIS approves the immigrant visa petition and when the State Department provides the foreign national with an immigrant visa number. In addition, U.S. law also limits the number of immigrant visas available by country. This means that certain foreign nationals will have to wait longer if they come from a country with a high demand for U.S. immigrant visas.
Fifth, if the foreign national applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available. If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. Consulate.
"PERM" (Permanent Labor Certification) is a relatively new attestation and audit process which went into effect on March 28, 2005, by which employers seeking permanent labor certification conduct advertising and recruitment prior to filing the labor certification application with the Department of Labor.
Cases are filed online using a new electronic application form. It is expected that applications will take an estimated 45 to 60 days to adjudicate. Some cases will be selected for auditing by the Department of Labor, either randomly or because responses to certain questions on the application evince need for additional information. When a case is selected for audit, processing times are likely to exceed the 45- to 60-day estimate.
The PERM Application
The PERM system employs an automated electronic application process, preceded by a recruitment period with mandatory steps and strict requirements. Employers are required to document their recruitment efforts and any layoffs by the employer in the area of intended employment and in the occupation that is the subject of the labor certification or any related occupations. This documentation is not submitted upfront with the labor certification application, but is provided if the application is selected for audit.
Schedule "A" Occupations
Certain occupations are exempt from the labor certification process. The applications for alien workers in these occupations are filed with the employer petitions directly to the USCIS. PERM has changed certain aspects of these Schedule A occupations; however, Schedule A Group I continues to include professional Nurses and Physical Therapists, and Group II includes Aliens of Exceptional Ability in the Sciences and Arts. Substantive requirements remain largely unchanged, though professional Nurses may now demonstrate eligibility though passage of the National Council Licensure Examination for Registered Nurses (NCLEX-RN). Alternatively, eligibility may continue to be demonstrated by a full and unrestricted (permanent) license to practice nursing in the state of intended employment or a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS).
IMMIGRATION THROUGH A FAMILY MEMBER
If an individual wishes to become an LPR based on the fact that they are a relative of someone who is a U.S. citizen or LPR of the United States, several steps must be taken.
First, the USCIS must approve an immigrant visa petition (Form I-130 Petition for Alien Relative) for the foreign national individual. This petition is filed by the U.S. citizen or LPR relative (sponsor) and on the foreign national’s behalf, must be accompanied by proof of the relationship between the foreign national individual and the requesting U.S. citizen or LPR relative.
Second, for all family based cases, other than Immediate Relative cases (i.e. parent, spouse, unmarried child under 21, widow/widower – see below), the Department of State must determine if an immigrant visa number is available to the foreign national, even if they are already in the United States. When an immigrant visa number becomes available to the foreign national, it means that they can apply to have one of the immigrant visa numbers assigned to them.
To be eligible to sponsor a foreign national relative to immigrate to the United States, you must meet the following criteria:
Immediate relatives of U.S. Citizens may petition for the following, who are not subject to the availability of visa numbers:
Preference Category Petitions (other than the above immediate relatives, only certain relatives can sponsor under the family based category)
Certain family members who want to become immigrants are classified into categories based on a preference system.
The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:
VISA INELIGIBILITY / WAIVER
The immigration laws of the United States, in order to protect the health, welfare, and security of the United States, prohibit the issuance of a visa to certain applicants. Examples of applicants who will be refused visas include those who: have a communicable disease such as tuberculosis, AIDS, have a dangerous physical or mental disorder, or are drug addicts; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the United States; or are ineligible for citizenship. Some former Exchange Visitors (J-1 visas) must live abroad for two years before they are granted LPR status unless they have obtained a waiver of the 2-year foreign residency requirement. If found to be ineligible at the time of visa application, the consular officer will then advise the applicant if the law provides for a Waiver.
IMMIGRATION THROUGH THE DIVERSITY VISA PROGRAM (“Green Card Lottery”)
The Diversity Visa Program often called ‘the Green Card Lottery,’ is a yearly Program that makes immigrant visas available to people from countries with low levels of immigration to the US during the five preceding years. The selection of winners is selected at random by computer from among all qualified entries submitted during the registration period.
Eligibility for the lottery is generally determined by a person’s place of birth—that is, the country of which one is a ‘native’- rather than by one’s country of citizenship or residence. Every year, in advance of the Lottery application period, the Department of State publishes a list of qualifying countries, natives of which may participate in the lottery.
Individuals whose place of birth disqualifies them for participation in the lottery but who have a spouse who is a native of a qualifying country may themselves be eligible to apply, as long as the spouses are both issued immigrant visas and enter the U.S. simultaneously. In addition, if a person was born in a country whose natives are ineligible, but neither of his or her parents was born there or resided there at the time of the birth, such person may be able to claim nativity in one of the parents’ country of birth.
In order to participate in the lottery an applicant must be otherwise eligible for an immigrant visa and have either (1) a high school education or its equivalent, or (2) two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.
MAINTAINING LAWFUL PERMANENT RESIDENT STATUS
Lawful Permanent Residents of the United States should be aware of the measures that should be taken to maintain their status. Generally, immigrants seeking admission or re-admission to the United States must have valid immigrant visas, reentry permits, or other residence alien card valid entry documents. A returning resident may present a resident alien card, also better known as a "green card" in lieu of an immigrant visa if coming back to an unrelinquished lawful permanent residence in the U.S. after a temporary absence abroad not exceeding one year. To qualify as a returning resident alien, the alien must have acquired LPR status, have retained that status from the time he or she acquired it, and be returning to "an unrelinquished lawful permanent residence" after a "temporary visit abroad."
The question of what is considered a "temporary visit abroad” by U.S. immigration is an extremely complex issue regarding the law on “abandonment” of LPR status and what qualifies as “abandonment”. This concept is flexible and varies depending on the facts and circumstances of each case. Courts have adjudicated this issue with a wide variety of results. The overriding determinative factor is the intent of the alien.
Please note that maintaining continuity of residence for Naturalization (acquiring U.S. citizenship) purposes is a different issue from that of maintaining Lawful Permanent Resident status. This memorandum will address only the issue of maintaining LPR status.
ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS
LPR status is not automatically lost by a lengthy absence abroad, but an extended absence is one factor that is taken into account by the USCIS in judging the alien's intent. The key factor in determining whether an alien has "abandoned" his or her permanent resident status is the alien's intent. However, a mere statement of intent to remain a U.S. resident is not controlling. The USCIS can only look at objective criteria in order to determine the alien's subjective intent.
The major factors that are analyzed in determining the alien's intent include but are not limited to:
The factors set forth above have evolved through examination of both regulations and case law. When determining whether the alien has abandoned LPR status, the USCIS examiners are likely to place great weight on the USCIS Examinations Handbook. The Handbook is not considered "law", but exists to assist examiners in determining the "intent" of the alien with regard to abandonment of his or her status. The Handbook dismisses as a "widespread fallacy" the belief that entry once a year for one or several days will preserve LPR status. As discussed here, simply returning once a year to the United States will not guarantee retention of LPR status. The Handbook sets forth documentary evidence of “residence” in the U.S. as including:
The Handbook also sets forth items for the USCIS Inspection Officers to look for when questioning an alien with regard to intent. These include possession of a round-trip ticket; a customs declaration form address showing the U.S. address as a hotel or “in care of” someone else, and, arriving at a resort gateway when the tax declaration form reflects an address elsewhere in the United States.
Similar to the retention of LPR status issue, the alien's continuing intent to remain a U.S. permanent resident is central to the issuance of a Reentry Permit when the alien plans a lengthy absence from the U.S. When an alien knows that he or she will be leaving the U.S. and will not be able to return within the next year, he or she should apply to the USCIS while he or she is still in the United States for a "Reentry Permit", which is a reentry document valid for up to two years from the date of the alien's departure from the United States. An alien can arrange to return to the U.S. prior to the expiration of the reentry permit in order to make an application for a new permit, which also must be made when the alien is physically in the United States. Please note, however, that an alien cannot expect to indefinitely obtain new Reentry Permits. Each new application for a Reentry Permit will be subject to increasing scrutiny by the USCIS with regard to the alien's intentions. There is however no set rule regarding the number of times an alien may obtain a reentry permit.
Please note also that a Reentry Permit does not guarantee the alien's readmission to the U.S. It does certify that the alien's trip abroad has been accepted by the U.S. government as temporary. Failure to pay U.S. income taxes as a resident during the period of absence has been found to demonstrate an intention contrary to that required of a LPR.
A Reentry Permit may be used for an unlimited number of entries into the United States during the two year period of its validity. A Reentry Permit is not renewable, despite language to that effect on the permit. In order to apply for a new Reentry Permit to the USCIS, the alien must be physically present in the United States. If the alien has not returned to the U.S. during the two year validity period of the expiring Reentry Permit, he or she cannot apply for a new Reentry Permit from abroad, nor may he or she use the Reentry Permit to enter the U.S. In this case, the alien must apply at a U.S. consulate for a "special immigrant" visa to reenter the United States.
For conditional residents returning to the U.S., Reentry Permits are generally valid for two years from the date of issuance of the Reentry Permit or until the date the conditional resident must apply for the removal of conditions, whichever comes first. The conditional resident should apply for this benefit before leaving the U.S.
It is important, for purposes of demonstrating appropriate "intent", to file U.S. tax returns as a U.S. resident. From a U.S. tax law perspective, unless an applicable treaty provides otherwise, Lawful Permanent Residents are required to file U.S. federal income tax returns as residents. In a leading case on this issue, Matter of Guiot, it was held that a LPR who claims nonresident alien status for federal income tax purposes, either by filing no income tax return at all, or by filing a return as a “nonresident”, may be deemed to have abandoned the green card. The Internal Revenue Code Sec. 7701(b) provides that taxation as a resident can be avoided only if: LPR status is administratively or judicially revoked; LPR status is determined to have been abandoned; or if such status is officially surrendered. Although tax treaties may supersede federal tax law, the USCIS may determine that an alien who has set up residence in another country under treaty tie-breaking rules has abandoned his or her U.S. permanent resident status. Please note that most of the cases regarding LPR status and the filing of resident/non-resident U.S. tax returns involve federal, not state, law. It is essential that you consult with your international accounting consultants or tax attorneys in order to be fully advised as to the relevant tax issues.
Unfortunately, there is no "bright line" of criteria set forth to ensure that a foreign national will retain his or her LPR status, other than to counsel that the foreign national continue to reside and work in the United States. For foreign nationals who must depart the United States for an extended period of time for employment reasons and who wish to protect their LPR status in order to return to the United States as LPRs, we would strongly recommend that such foreign nationals take the following steps:
The law involving retention of LPR status has evolved primarily through case law, and, consequently has not been consistently applied or interpreted. Historically, only a small number of people with LPR status were absent from the United States and attempted to return. As businesses have become even more international, and people are regularly transferred around the world, these issues have become more prevalent, resulting in a wide variety of interpretations of the relevant law. Looking at relevant case law and regulations, we can offer only guidelines, and not hard and fast rules, as to how foreign nationals who must be absent from the United States for extended periods of time can retain their permanent resident status. We trust that the recommendations set forth above will provide some guidance.
NOTICE OF ADDRESS CHANGE
All aliens including LPRs in the United States must keep the USCIS informed of their changes of address. If you change your address, you must use the attached Form AR-11 to report a change of address within 10 days of such change. This form is available from the USCIS website at http://uscis.gov/graphics/formsfee/forms/files/ar-11.pdf
REMOVAL OF THE CONDITIONAL ASPECT OF RESIDENCE
An LPR is given the privilege of living and working in the United States permanently. Your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or on the day you receive adjustment of status. Your permanent resident status is “conditional”, because you must prove that you did not get married to evade the immigration laws of the United States.
If your LPR status is conditional, you will need to take additional steps to remove the conditional aspect from your LPR status. In order for an alien spouse to have the Conditional Aspect of Residence removed, both the alien spouse and the resident spouse need to jointly file Form I-751 requesting a removal of this condition. This Form must be filed during a 90-day period immediately preceding the two-year anniversary of the granting of residence. If you fail to properly file the Form I-751 (Petition to Remove the Conditions on Residence) within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the USCIS can order removal proceedings against you. If this happens, you will receive a notice from the USCIS telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the removal of the conditional aspect of residence requirements (the USCIS does not have the burden of proving that you did not comply with the requirements).
The Form I-751 can be filed after the 90-day period if you can prove in writing to the Director of the Service Center that there was good cause for failing to file the petition on time. The Director has the discretion to approve the petition and to restore your LPR status.
USCIS is mandated by law to notify the alien spouse and the resident spouse that they need to file this I-751 application, but even if the USCIS fails to do so the couple's obligation to file is not alleviated. The alien spouse should mark his/her calendar with the correct filing period, as the consequences of failing to file are very substantial.
USCIS may terminate the alien spouse's residency if the USCIS receives information prior to the 90-day period that the marriage has been judicially annulled, that the marriage was entered into in order to keep the alien in the United States, that a fee was paid or other consideration (other than attorney's fees) for filing the original petition, or if an application to remove the conditional status of his/her permanent residence in the 90-day period preceding the two-year anniversary of the granting of that residence has not been filed. The termination of residence can occur anytime during the two-year period. A Notice of Intent to Terminate will be sent to the alien if the USCIS develops information prior to the filing of the joint petition that warrants termination. This notice gives the alien the chance to review or rebut the evidence upon which the decision to terminate was based. Only after an alien is given the opportunity to review and rebut the evidence will the USCIS make a final decision to terminate permanent residency. If a basis for termination emerges before the 90-day period, the alien does not have to wait for the two-year period to apply for a Waiver of automatic termination of residence. The Waiver request can be filed with the USCIS when the circumstances triggering termination arise e.g. as soon as a divorce decree becomes final.
If your I-751 application to remove the conditions on your permanent residence is denied, you will receive a letter that will tell you why the application was denied. The process to remove you from the United States will begin as soon as your application is denied. You will be entitled to have an immigration judge review the denial of your application during removal proceedings. During this review, the USCIS must prove that the facts on your application were untruthful and that your application was properly denied. If the immigration judge decides to remove you from the United States, you may appeal this decision.
Generally, you may appeal within 33 days after the immigration judge decides to remove you from the United States. After your Appeal Form and the required fee are processed, the Appeal will be referred to the Board of Immigration Appeals in Washington, D.C.
As stated above, termination of conditional permanent residence is triggered by the failure to meet the procedural requirement of filing an I-751 application to remove the conditional aspect of that residence. In such a case, deportation proceedings can also be brought against the alien. Furthermore, status in the U.S. is considered unlawful upon the expiration of the 90-day period, triggering potentially harsh exclusion rules.
Naturalization is the process by which U.S. citizenship is conferred upon a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (“INA”). The general requirements for naturalization include:
All naturalization applicants must demonstrate good moral character, attachment and favorable disposition. The other naturalization requirements may be modified or waived for certain applicants, such as spouses of U.S. citizens.
It is important that applicants for Naturalization fulfill all residency and physical presence requirements at the time of filing the application, at the time of the Naturalization Interview and at the time of the swearing of the oath. Since the processing time for Naturalization Applications can take some time, the applicant must ensure that they have fulfilled the residency and physical presence requirements at each stage.
The period of residency and physical presence in the U.S. vary depending on whether the applicant files their application for Naturalization based on the fact that they have been a Permanent Resident for the past 5 years or have been married to a U.S. citizen for the past three years. Usually applicants who file for Naturalization are Permanent Residents for the past 5 years. (This covers 90% of applicants).
(“Continuous residence” means that you have not left the United States for a long period of time. If you leave the United States for too long, you may interrupt your "continuous residence". “Physical presence” means that you have actually been physically present in the United States. Most applicants must be physically present in the United States for a certain number of months to be eligible for naturalization. The difference between "physical presence" and "continuous residence" is that “physical presence” involves the total number of days that the applicant was outside the U.S. on all trips abroad, while “continuous residence” involves the number of days the applicant was outside the U.S. during a single trip. Even if the applicant did not take a trip outside of the U.S. that was long enough to disrupt his/her continuous residence, he/she may have taken enough short trips outside of the U.S. which would prevent him/her from fulfilling the physical presence requirements.
Therefore, the applicant will have to provide evidence that he has fulfilled both the “continuous” residence and “physical presence” requirements. We usually advise clients to keep a record of their entries and exits in and out of the U.S. for Naturalization purposes.
If the applicant has traveled outside of the U.S. for periods of greater than one year, he is deemed to have abandoned his LPR status for Naturalization purposes. All trips outside of the U.S. for more than six months but less than one year can disrupt the applicant's continuity of residence unless the applicant can establish that he did not abandon his residence during such periods.
Naturalization Applicants need to make sure that they establish all the continual residence and physical presence requirements at three stages (at the time of filing the naturalization application, at the time of interview, and at the time of swearing of the oath). The naturalization applicants need to establish that immediately preceding each of the above three stages within the last five years, that they have fulfilled the continuous residence and physical presence requirements. In other words, when looking back at the time of filing of the application, they must have fulfilled the requirements for the last five years, at the time of the interview looking back, they must have fulfilled the residence and presence requirements and at the time of swearing the oath looking back at the last five years, they must have fulfilled the residence and presence requirements.