United States Immigration – Permanent
United States-based employers can petition to sponsor existing or prospective alien employees to become U.S. Permanent Residents by filing an I-140 Petition for Immigrant Worker with the U.S. immigration service. Such employment-based petitions are sub-divided into the following preference categories with regard to visa availability:
FIRST PREFERENCE: PRIORITY WORKERS (EB-1)
This category includes, but is not limited to, certain multinational high-level executives, departmental directors, partners, upper management personnel and functional managers who have acquired at least one full year of executive or managerial-level experience abroad in the three year period preceding their intra-corporate transfer to the United States. It also includes individuals of extraordinary ability with outstanding achievement in the arts and sciences (entertainers, athletes, and academics, for example).
SECOND PREFERENCE: MEMBERS OF PROFESSIONS HOLDING ADVANCED DEGREES OR PERSONS OF EXCEPTIONAL ABILITY (EB-2)
This category applies to members of designated professions as defined in the Immigration and Nationality Act (e.g. lawyers, engineers, etc.) and to individuals involved in the sciences, arts or business. Some examples may include university/college instructors, medical professionals and specialists, high-level researchers, business administrators and other individuals. Applicants in this category must have a level of education above the baccalaureate level (i.e. a master’s or Ph.D.), or a combination of a baccalaureate degree (or foreign equivalent) and five or more years of progressive work experience in the area of specialization.
THIRD PREFERENCE: SKILLED WORKERS, PROFESSIONALS, AND OTHER WORKERS (EB-3)
Professionals include qualified foreign nationals who hold at least a United States or foreign equivalent baccalaureate degree and who are a member of a profession. This may include, but is not limited to, accountants, teachers, business consultants, software programmers and computer professionals, registered massage therapists, and graphic designers.
Skilled Workers are people who are capable of performing skilled labor (that which requires at least two years of training or experience) for which qualified workers are not available in the United States. This category can include tradespersons such as carpenters, plumbers, electricians, and welders, as well as nurses and professionally trained chefs, for example.
Other Workers are defined as qualified applicants who are capable of performing unskilled labor (that which requires less than two years of training or experience) for which qualified workers are not available in the United States.
ADJUSTMENT OF STATUS
Those alien workers who are currently employed in the United States in lawful status and whose visa priority date is current may file their inland I-485 Application to Adjust Status concurrently with their employer’s or prospective employer’s I-140 Petition for Immigrant Worker.
In most cases, an interim Employment Authorization Document (EAD) may be sought during the pendency of a Permanent Residence application.
With the exception of those in the United States in H or L nonimmigrant status, alien workers wishing to travel internationally during the pendency of an I-485 Application may have to apply in advance of any such travel for a Travel Document or for what is otherwise known as Advance Parole. Failure to do so will, in most cases, constitute an abandonment of the pending I-485 Application.
Except generally in the case of EB-1 Priority Workers and, from time to time, in the case of EB-2 Members of Professions Holding Advanced Degrees or Persons of Exceptional Ability, sponsored alien workers should expect a waiting period between the approval of the initial I-140 Petition and the filing of either an I-485 Adjustment of Status Application or an Immigrant Visa application with a visa post abroad. This waiting period can sometimes be as much as 2-3 years.
Those alien workers not eligible to apply from within the United States to Adjust Status must instead file an Immigrant Visa Application with the U.S. Department of State’s National Visa Center for subsequent processing by a visa post outside of the United States.
Citizens of the United States may petition on behalf of the following alien relatives to immigrate to the U.S. in the “immediate relative” category:
- Husband or wife
- Unmarried son or daughter under 21 years of age
- Parent
A grant of permanent residence to a sponsored alien spouse who has been married to the petitioner for less than two (2) years will be subject to a condition that the couple remains married for at least (2) years from the time of this grant. A petition must then be filed to remove this condition during the ninety (90) day period preceding that two (2) year anniversary.
Citizens of the United States may also petition on behalf of the following alien relatives to immigrate to the U.S.:
- Unmarried son or daughter over 21 years of age
- Married son or daughter of any age
- Brother or sister (if the sponsor is at least 21 years old)
Permanent Residents of the United States may petition to sponsor a husband or wife or an unmarried child of any age.
Family-based petitions, other than those involving the sponsorship of immediate relatives, are sub-divided into the following preference categories with regard to visa availability:
First Preference: Unmarried sons and daughters of U.S. citizens over 21 years of age.
Second Preference: Spouses, children and unmarried sons and daughters of U.S. Permanent Residents
A. Spouses and Children
B. Unmarried Sons and Daughters (21 years of age or older)
Third: Married sons and daughters of U.S. citizens
Fourth: Brothers and sisters of adult U.S. citizens
Unless a sponsored relative qualifies to adjust status from within the United States, family-based sponsorship petitions are generally administered in two steps: First, an I-130 Petition for Alien Relative must be filed with U.S. Citizenship and Immigration Services. Second, if the Petition is approved, an Immigrant Visa application is then filed by the sponsored alien relative with the U.S. Department of State’s National Visa Center for subsequent processing by a visa post outside of the United States.
Other than in the case of immediate relatives, sponsored alien relatives should expect a waiting period, sometimes a lengthy waiting period, between the approval of the initial Petition and the time when an Immigrant Visa becomes available or, put another way, the time when one’s visa priority date becomes current.
Adjustment of Status
In the case of some immediate relatives who are already residing in the United States in lawful status or for those whose priority date is current and, subject to other qualifying criteria being met, the initial Petition can be filed concurrently with an inland I-485 Application to Adjust Status, thereby obviating the need to process for an Immigrant Visa through a U.S. mission abroad. During the pendency of such an Application to Adjust Status, the alien relative may also qualify for an interim Employment Authorization Document (EAD).
Alien relatives wishing to travel internationally during the pendency of an I-485 Application may have to apply in advance of any such travel for a Travel Document or for what is otherwise known as Advance Parole. Failure to do so will, in most cases, constitute an abandonment of the pending I-485 Application.
U.S. Permanent Residents are required to maintain a place of residence and residential ties to the United States with no intention to abandon those ties at the time of any departures from the United States. A departure from the United States of more than one (1) year creates a presumption that one has abandoned his or her Permanent Resident status.
Those who contemplate having to leave the United States for extended periods may wish to consider applying, prior to any such departures, for a Re-entry Permit. Generally issued for periods of two (2) years at a time, such permits serve to preserve one’s status as a Permanent Resident of the United States during such absences.
Those who acquire Permanent Residence by way of an employment-based sponsorship must, generally speaking, be resident in the United States for a period of at least five (5) years and be physically present in the United States for at least two and a half years (2½ ) years during that period.
Those who acquire Permanent Residence by way of a family-based sponsorship must, generally speaking, be resident in the United States for a period of at least three (3) years and be physically present in the United States for at least one and a half years (1½ ) years during that period.
