IMMIGRANT PETITIONER: Term used for a person who files a petition or application with the United States Department of Labor (USDOL) or the United States Immigration and Naturalization Service (INS) on behalf of a foreign national or alien.
FOREIGN NATIONAL OR ALIEN: Terms used for a person who receives the Green Card. Is also called the Alien Beneficiary, as he/she receives the benefits of immigrant or non-immigrant status. This individual is also referred to as a Green Card Holder and/or Lawful Permanent Resident.
1. RELATIVE PETITIONS
Permanent Residence may only be obtained in this manner if filed for by qualifying United States Citizens or Resident Aliens.
2. LABOR CERTIFICATION PROCEDURES
A United States employer (sponsoring company or individual) completes the Labor Certification process with the United States Department of Labor (USDOL), which, once approved, allows the alien beneficiary (foreign national) to obtain a Green Card. How long the foreign national actually must wait before obtaining a Green Card depends on two (2) variables:
a. LOCATION: The varying processing times the USDOL has in different regions of the United States;
b. IMMIGRANT VISA CATEGORIES: The multiple Immigrant Visa categories the Immigrant and Naturalization Service (INS) will determine the foreign national is actually entitled to use. Approximately fifteen (15) categories have existed since October 1991 when the US Immigration laws were radically amended.
The Immigrant Visa is filed directly with an Immigration and Naturalization Service Regional Center under the various categories, and Immigration and Naturalization Service processing times vary nationwide.
Please also see “THE LABOR CERTIFICATION PROCESS” information sheet for skilled workers. The following are categories through which Lawful Permanent Residence may be obtained through “Employment Based” (EB) opportunities.
EMPLOYMENT BASED 1 (EB1) or EMPLOYMENT BASED 2 (EB2)
These restricted categories include only a certain few outstanding University or College Professionals (those who have a Master’s Degree at minimum). Congress created this category to seek highly talented foreign nationals , whose abilities are so extraordinary that it is thought that their employment in the United States will be to our country’s great socio-economic benefit.
SCHEDULE A - GROUP I - LABOR CERTIFICATIONS
This special process allows the simultaneous filing of Department of Labor forms along with the petition for the alien worker (I-140) to the Immigration and Naturalization Service (INS). In this way the alien beneficiary (foreign national) may obtain a Green Card without undergoing the usual Labor Certification procedures required in “Recruitment of US Workers” (US Labor Market testing). Only Professional Nurses and Physical Therapists meeting certain educational and licensing requirements qualify for this category.
SCHEDULE A - GROUP II - LABOR CERTIFICATIONS
This process is available only to a certain select group of highly educated professionals who have attained a very high level of achievement and recognition in specific careers. This procedure allows the foreign national to obtain a “Green Card” without going through the usual USDOL “Labor Certification” procedures. Alien foreign nationals who are approved in this category will normally be qualified for Immigrant Visas in the Employment Based I or II categories. (Please see our Attorneys for further details.)
3. REGISTRY
Aliens/foreign nationals who have resided continuously in the US since January 1, 1972 are allowed to become immigrants if they are able to meet a set of legal criteria, without having any Labor Certification or Relative Petition filed on their behalf. (Please see our Attorneys for further details.)
4. INVESTORS’ “GREEN CARDS”
If a foreign national from any country makes an investment of between $500,000 - $1,000,000 in a “qualifying” United States business, and creates a minimum of ten (10) full time positions/jobs, the foreign national and his/her immediate relative dependents can obtain Lawful Permanent Resident status if the business survives for two (2) years. (Please see our Attorneys for further details.)
5. “SECTION 13" DIPLOMATS
A very limited number of immigrant visas are allocated annually to narrowly defined groups of high level diplomats, who fear returning to their home countries and hold visas in category A-1 (Non-Immigrant Visa Holder). (Please see our Attorneys for further details.)
6. INTERNATIONAL ORGANIZATION RETIREES (G-4)
Certain retirees and their qualifying dependents who have resided in the US for a minimum of seven (7) years are entitled to become immigrants if they otherwise qualify under the Immigration and Nationality Act (INA). (Please see our Attorneys for further details.)
7. REFUGEE STATUS
This category includes foreign nationals who were approved for Refugee Status by the United Nations while they were still outside the United States. These aliens are entitled to apply to become immigrants one (1) year after entering and residing in the United States as a “Refugee,” providing the alien meets all the other legal requirements of the Immigration and Naturalization Act (INA).
8. POLITICAL ASYLUM
Foreign nationals may apply for Political Asylum in the US. Their asylum application may be approved if they credibly show that they have a well founded fear of persecution based on their political beliefs or activities; or for being a member of a minority group which is targeted by their home government for persecution, or by outside guerilla or opposition groups that the government is unwilling or unable to control. If approved for Political Asylum, the applicant can then apply for Lawful Permanent Resident status one (1) year after being granted political asylum. The applicant must still meet other legal criteria of the Immigration and Naturalization Service (INS) to be successful in securing US citizenship.
9. PRIVATE BILLS
In unique circumstances a foreign national may be able to obtain immigrant status using this method. Few of these bills ever pass Congress and those that do involve situations where foreign nationals are already physically present in the United States, and/or are unable to fit into any of the traditional modes for achieving immigrant status. There are special cases where the foreign national has demonstrated extensive “ties” to the US, and because of human rights concerns, a Member of Congress will decide to push forward a private bill on the foreign national’s behalf. Private bills are a very expensive procedure as extensive, lengthy personal attorney efforts are required for processing a Private Bill.
10. WINNING IMMIGRANT STATUS IN COURT IN A “CANCELLATION OF REMOVAL” PROCEEDING
To obtain a Green Card, an alien must be in Deportation or Removal proceedings. This means that the Immigration and Naturalization Investigations Deportation Section prepares documents which arrange for aliens (who want to obtain their Green Cards) to be named “respondents” in a Civil Deport/Removal trail. This trial is held in front of an Immigration judge, and typically involves two or three court appearances by the alien respondent, and his or her attorney, before the Immigration judge makes a final decision on the case.
At the trial, the alien can file for a “Cancellation of Removal” proceeding. The “Cancellation of Removal” proceeding was previously called “Suspension of Deportation”. A relatively new law of September 30, 1996, retains the concept of “Suspension of Deportation,” but the term “Suspension of Deportation” has been renamed “Cancellation of Removal.”
There are three requirements that aliens must satisfy in order to file a “Cancellation of Removal” defense:
a. By April 1, 1997, aliens must have resided continuously in the US for ten years or more.
1. The alien must establish that his or her removal would result in exceptional and extremely unusual hardship to the alien’s US citizen or Lawful Permanent Resident spouse, parent, or child. The establishment of personal hardship for the alien will not qualify the alien for such relief.
2. The alien must be of good moral character during the qualifying ten year period of presence/residence in the US, and must be able to prove this. This generally means that the alien has had no criminal convictions during the ten year period that the alien has lived in the US.
Under the Illegal Immigration Reform and Immigrant Responsibility Act, the Immigration Court judge at this administrative trial will exercise “discretionary” power in proving that the alien has been of “good moral character” for the ten year period that he or she has been in the US. An Immigration judge may define a lack of good moral character as a situation where an alien failed to try to become legalized because he or she had not used his or her job skills to find a US employer who would sponsor him or her via their participation in the Labor Certification procedure.
The application for obtaining US Green Card/Resident Alien/Legalized Permanent Resident status via filing a “Removal of Cancellation” proceeding will not be decided upon until the Immigration judge makes a decision. If the judgement is on behalf of the alien, the Immigration and Naturalization Service’s appeal time is 30 days after the judge’s decision, unless the Immigration and Naturalization Service trial attorney agrees to waive the right to appeal.
The disadvantage to the alien of obtaining legal Immigrant Status in court is that he or she is put through the ordeal of a trial requiring witnesses to support his or her case. When the alien and the attorney first visit the Immigration and Naturalization Service to request placement into a “Removal Proceedings/Trial,” the alien is subjected to cross examination by the Immigration Judge, Immigration and Naturalization Service trial attorney, and the Deportation/Investigations officer. If the alien loses in court, then he or she can appeal. A legal brief must be prepared, and an oral argument must be requested before the Board of Immigration Appeals. Filing and xerox costs are also incurred.
In addition, if the alien spouse and his/her children were born in another country, and they want to obtain Immigration status as soon as possible, then each alien must file and pay defense fees in separate “Cancellation of Removal” proceedings. The court and INS trial attorney may choose not to agree to “join” the cases in a “joint motion to reopen.” If the cases are not joined, there will be a series of additional court appearances. This will mean that the aliens will have to take days off work, and there will be extra time consumed in these detail-intensive type cases. If all the members of the family do not qualify, the Lawful Permanent Resident winner of the Cancellation of Removal proceedings must file a F2A Family Based Relative Petition for the spouse and single, minor, dependent children. This category of Immigrant Visa currently has a waiting time (counting from the date the Relative Petition is received, processed and date stamped) of three to four years.
During the time that the alien beneficiary of this Relative Petition is waiting for his or her Green Card, he or she will not be entitled to an INS work permit just because INS has issued a “preliminary” approval of the first Relative Petition on file. After April 1, 1997, any illegal alien over 18 who is in the US without legal immigrant status (on a non-immigrant visa or expired INS work permit) must have left the US by September 27, 1997, or be subject to a Bar as follows: (1) A ten-year Bar applies to aliens who have been unlawfully present for one year or more, and who again seek admission within ten years of the date of departure or removal, (2) or a three-year Bar, if the alien was unlawfully present in the US for a period of more than 180 days, but less than one year.
11. VISA LOTTERY
These programs were initiated by Congress in part as an attempt to balance recent immigration trends, which since the 1960's, have brought the majority of immigrants from certain Asian and Central/South American countries. Congress set up an elaborate system which allows aliens/foreign nationals from certain countries who have been under- represented in recent years to compete for permanent residence in the US. Different rules have been established annually for applying for the “lottery.” The countries listed in this category can be obtained from your Attorney.
Even those lucky winners in the lottery still need to present legally sufficient future job offers to qualify for immigrant status, and the lottery winners must also be legally “eligible” under the legal criteria set by the Immigration and Nationality Act (INA). (Please see our attorneys for further details.)
Single lottery applications can be made by/on behalf of a foreign national who is here in the United States or who is residing abroad. (Please see our Attorneys for further details.)
© THE LAW OFFICES OF ROMNEY WRIGHT, SEPTEMBER 1999
