 |
|
 |
 |
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
U.S. IMMIGRATION SYSTEM | PERMANENT RESIDENCE Colloquially, Permanent Resident status is oftentimes referred to as “Green Card” status. This colloquial designation has its roots in a previous incarnation of the plastic, laminated document confirming a foreign national’s status as a Permanent Resident. In its current form, this document (form I-551) is white-blue-pink, and contains a great deal of encrypted biometric data. The card needs to be renewed in ten-year intervals, although this is a simple, streamlined application process that is infinitely less complex than having to actually qualify for Permanent Residence. Each year, over 800,000 foreign nationals obtain Permanent Resident status. The vast majority obtain this status pursuant to the sponsorship of a U.S. Citizen relative. Next in line numerically is immigration based on employment, and this is an area of immigration law of particular strength in this firm. Family-based and employment-based immigration account for nearly 700,000 annual admissions to permanent residence, meaning that around 100,000 foreign nationals (roughly 12% of the total) gain permanent residence through other lawful means, such as the U.S. refugee program, the diversity lottery program, special immigration programs, etc. The Three Key Parameters to a CaseIn analyzing a case for permanent residence, we need to start with three key considerations:
Parameter #1: Qualifying for Permanent Residence:The Five (5) Main PathwaysObviously, not all foreign nationals qualify for Permanent Resident status. Therefore, the first analytical step of a case is to determine whether the applicant’s situation/basic fact pattern falls within any of the situations enumerated in the law for the acquisition of Permanent Resident status. Essentially, there are five (5) main pathways to Permanent Resident status. Pathway #1: Family-Based ImmigrationStatistically, most Permanent Residents obtain this status through Family-Based immigration – i.e., through the sponsorship of certain family members who are U.S. Citizens or, to a lesser extent, Permanent Residents. The underlying policy here is to recognize that certain key family relationships should provide the basis for acquiring Permanent Residence. Perhaps the key, most sacred relationships for immigration purposes exist between spouses, their children, and their parents. The following familial situations, therefore, are not subject to any type of quota restrictions:
There are, in addition, certain other recognized family-based situations that can result in Permanent Residence, but these are not considered to be equally compelling, and are therefore subject to various quota restrictions. As a consequence, we currently see backlogs in the Immigrant Visa Numbers in the following family-based classifications:
Pathway #2: Employment-Based ImmigrationOur immigration system contains provisions for the acquisition of Permanent Residence through employment. The basic underlying policy here is to show that the employment of a foreign national will not harm the US labor market, primarily by either taking a job away from a fully qualified US worker and/or by depressing the wages of similarly employed members of the US labor force. In certain instances, though, a foreign national either possessing superlative capabilities or engaged in activities benefiting the United States (including certain designated Religious Workers and Investors) can undertake a streamlined approach to Permanent Residence that bypasses many of the recruitment/advertising obligations that normally are required in an employment-based immigration case. The U.S. employment-based immigration system contains five (5) tiers that appear as follows: Tier #1: Priority Workers which refers to the class of foreign nationals whose ongoing residence benefits this nation in a manner that obviates an employer’s need to recruit/advertise for the position:
Tier #2: Aliens holding Advanced Degrees. There are two subsets of this classification:
Tier #3: Professional and Skilled Workers. In all situations, this class of employment-based immigration requires both employer sponsorship and completion of the labor certification application process. The various subsets to this class are:
Tier #4: Religious Workers. This is an expedited pathway to Permanent Residence that by-passes the labor certification application process, established for foreign nationals who are working in religious positions for recognized religious denominations. Tier #5: Investors. The key requirement here is to show that the foreign national is making a substantial investment (generally, $1 million) in a venture that will create jobs for U.S. workers. Pathway #3: Refugee/Asylum: Fear of PersecutionOur nation affords safe haven to foreign nationals fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. These laws have been established in implementation of various international obligations. Foreign nationals processing abroad for admission based on this well-founded fear standard are known as Refugees, and need to fit with the refugee quota (currently, 70,000/year). Individuals who are already in the United States and are seeking safe haven are known as Asylees, and here there is no numerical ceiling. Pathway #4: The Diversity Lottery ProgramThis program was established to provide an opportunity for Permanent Residence to foreign nationals from certain (largely, but not exclusively, European) countries whose immigration eligibility was curtailed under a wide-ranging immigration law passed in 1965. There are 55,000 immigrant visa numbers available under this Program, and each year literally millions of individuals apply under a Lottery Program administered by the U.S. Department of State. Pathway #5: Various Special ProgramsFrom time-to-time, the Congress passes various special programs that afford foreign nationals the option for Permanent Resident status. Perhaps the programs of greatest potential relevance are: 1) the possibility of enacting an Amnesty Program; and 2) certain initiatives to provide Permanent Residence to children of unauthorized aliens who have attained a college education (i.e., the DREAM Act). In addition, our immigration laws contain certain provisions that confer Permanent Residence as a matter of law, such as: Registry, Suspension of Deportation, and certain Country-Specific measures. Parameter #2: TIMING CONSIDERATIONSThere are essentially two dimensions affecting the time required in order for a foreign national to obtain Permanent Residence:
Delay Point #1: Administrative DelaysMost immigration cases require designated U.S. Government agencies to review the underlying grounds for immigration eligibility. For example, sponsorship petitions from family members and employers are filed to USCIS; the U.S. Department of Labor administers the Labor Certification Application program; the U.S. State Department issues visas for temporary nonimmigrant and permanent resident purposes. Unfortunately, this level of administrative review involves time. Most government agencies publish their processing times, so it is generally possible to get at least a rough idea of the administrative processing time required in any given immigration case. Delay Point #2: Quota BacklogsA more profound source of delay arises from the immigration quota system. Essentially, there are numerical limitations (ie., a quota) applied at three separate levels of the immigration process:
The allocation of these immigrant visa numbers is based upon a supply-demand principle in which the number of approved requests for visas is measured against the total number of available visas. In instances in which the demand exceeds the supply, visas become allocated in the order in which the applications were received. The filing date of a sponsorship petition is known as the Priority Date. The backlogs are readjusted each month, as announced by the Visa Bulletin as issued by the US Department of State. PARAMETER #3: WHAT DOES IT MEAN TO BE A PERMANENT RESIDENTWhile Permanent Residents on a day-to-day basis have many of the same rights as do US citizens, there are definitely important distinctions. At core, Permanent Residence provides the following benefits:
But Permanent Residence has some limitations, including:
|
Aronson & Associates, P.A. |
