PERMANENT RESIDENCE (GREEN CARD)

Permanent residence through family petitions

A foreign national can obtain Permanent Resident status through a family petition, which can be filed by a U.S. citizen or a legal permanent resident, depending on the family relationship.

According to the Immigration and Nationality Act, a US citizen can apply for permanent residence on behalf of the following family members:

• Spouse
• Biological children, regardless of age and marital status; adopted children when the adoption takes place before the child’s 16th birthday, and stepchildren when the marriage that creates the stepchild/stepparent relationship takes place before the child turns 18 years of age.
• Parents
• Siblings
  
  

Permanent residents can apply for permanent residence on behalf of the following family members:

• Spouse
• Unmarried children under 21 years of age
• Unmarried children over 21 years of age
  
  

A U.S. citizen may file an immigrant petition simultaneously with the Adjustment of Status application on behalf of immediate family members (spouse, unmarried children/under 21, and parents) without any waiting time, while the other categories: married children, children over 21 years of age and siblings of US citizens as well as family members of Permanent Residents must wait until the immigrant petition is approved and a visa number is available to apply for permanent residence according to the Visa Bulletin published monthly by the United States Department of State.

• Permanent Residence through Labor Petitions (Green Card)

One of the main ways to obtain Legal Permanent Resident status that allows a foreing national to work and live legally in the United States is through employment. There are different types of categories to obtain residency through employment:      

EB-1 Category: To be eligible under this preference, the individual must qualify in one of these categories: (i) Managers or Executives of Multinational Companies, (ii) Outstanding Professors and Researchers, and (iii) Individuals with Extraordinary Abilities in the sciences, arts, education, business, or sports.

(i) Managers or Executives of Multinational Companies:  The candidate must demonstrate that he or she has been continuously employed by a foreign company for at least one year out of the last three years before his or her admission as a nonimmigrant to the United States, in a managerial or executive position and who will be permanently transferred to the parent company, subsidiary, affiliate or branch in the United States in a managerial or executive position. The immigrant worker petition must be filed with the United States Citizenship and Immigration Services (USCIS). Once approved, the candidate can begin an Immigrant Visa Consular Process or alternatively, apply for adjustment of status in the United States. In some cases, it is possible to submit the adjustment of status application simultaneously with the petition for alien worker.

(ii) Outstanding Professors and Researchers:  The candidate must demonstrate that he or she has been an outstanding professor or researcher with at least three years of experience at an accredited university or higher education institution and has been internationally recognized in a tenured professorship or career position at a university or higher education institution; in a similar position conducting research at a university or higher education institution; or in a similar position conducting research for a private institution that employs at least three full-time researchers with documented achievements in the academic field, the immigrant visa application must be filed by the employer in the United States.

(iii) Extraordinary Abilities in the Sciences, Arts, Education, Business, or Sports:  An individual with extraordinary abilities in the sciences, arts, education, business, or sports may file the petition without the need of a sponsorship by an American employer, that is, these people do not require a job offer to file the petition.

To be eligible in this category, the candidate must demonstrate national or international recognition and have attained recognition in the field of specialty with important international awards such as the Nobel Prize, Oscar, Grammy, or Olympic medal. If the person has not been awarded a recognized international award, the candidate must meet at least three of the following ten criteria:

• Have received other awards either nationally or internationally.
• Membership in a professional association that requires outstanding achievements of its members.
• The candidate's work has been published in a major professional publication.
• The candidate has been a judge in a competition within the specialty field.
• The individual has made significant contributions within the field of specialty.
• The individual has written articles that have been published in important journals within the specialty area.
• The candidate's work has been exhibited in art exhibitions.
• The individual has held a leadership position in a distinguished organization.
• The individual's salary is very high compared to other colleagues within the specialty field.
• Evidence of commercial success in the performing arts.

EB-2 Category: To be eligible under this category, the foreign national must fit into one of these categories: (i) Individuals with a postgraduate degree; (ii) Individuals with exceptional abilities in science, arts, or business; or (iii) National Interest Waiver which are exempted from Labor Certification.

(i) Individuals with a Postgraduate Degree:  The candidate must demonstrate that he has a university degree and a postgraduate degree or that he has a university degree and progressive experience equivalent to a postgraduate degree. Additionally, the individual must have a job offer in an occupation that requires a graduate degree. Before filing the immigrant worker petition, the employer must file and obtain approval of a PERM Permanent Labor Certification application with the United States Department of Labor.

(ii) Individuals with Exceptional Ability in Sciences, Arts or Business:  The candidate must demonstrate that he or she possesses exceptional ability in the area of science, arts or business. The candidate must have a job offer in the US, must be a member of a professional organization within the specialty area, and their compensation must be higher compared to other colleagues within the field. Before applying for an immigrant visa, the employer must file and obtain approval of a PERM Permanent Labor Certification application with the United States Department of Labor.

(iii) National Interest Waiver  The individual must demonstrate that their work is of national interest to the United States. In this category, the individual is not required to have a job offer and, as a consequence, is not to obtain an approval of a PERM Permanent Labor Certification application with the U.S. Department of Labor. To meet the national interest standard, the individual must meet these requirements: The individual's work must be of great importance within the area of specialization, the individual's work will have a national impact, and the benefits that the candidate's work will bring to the country outweigh the need for Permanent Labor Certification, PERM.

EB-3 Category: This category requires the Labor Certification process, PERM for all subgroups: (i) skilled workers; (ii) professionals; or (iii) unskilled workers.

(i) Skilled Workers:   The individual must demonstrate that he or she has at least two years of technical training or two years of relevant experience in the a specific occupation. The employer must file an application for PERM Labor Certification with the Department of Labor and demonstrate that there are no available and qualified workers in the United States to perform the specified work.

(ii) Professionals:  The candidate must demonstrate that he or she holds a professional degree from a U.S. institution or its equivalent from a foreign institution, that there are no available and qualified U.S. workers to perform the job, and that to perform the job, a professional degree is required. The employer who is acting as sponsor must submit a PERM Labor Certification application to the Department of Labor and once approved, must file the immigrant worker petition and offer the candidate a permanent job.

(iii) Unskilled Workers:   The candidate must demonstrate that he or she is capable of performing the job at the time the employer submits the petition. The candidate does not need to have two years of experience to do the job. The employer must file a PERM Labor Certification application with the Department of Labor and prove that there are no available and qualified workers in the United States to perform that type of work.

If the beneficiary of any residency petition based on family or employment has violated the immigration law in the past, he or she may be ineligible to obtain legal permanent residence in the United States and must obtain a waiver of the bars (penalties) imposed by the Immigration and Nationality Act and apply for an immigrant visa at the American consulate in his or her country of origin, instead your country.

Some people are found inadmissible or ineligible to receive Permanent Residence in the United States due to criminal charges, violations of immigration law, such as having entered the United States unlawfully or overstayed, having been deported, or having committed fraud or misrepresentation. In these cases, the person may need to file a waiver of inadmissibility depending on the type of violation of the law.    

Generally, the applicant must establish that their American citizen or legal permanent resident family member would suffer extreme hardship if they were forced to leave the United States and would not be able to return.

• I-601A, Provisional Waiver: The provisional waiver process allows beneficiaries of residency, family or employment petitions, whose only ineligibility for an immigrant visa is the accumulation of unauthorized stay in the United States, to file and obtain a waiver before attending their immigrant visa interview at the American Consulate in his or her home country. This process was developed in order to shorten the time that US citizens or legal residents remained separated from their family members while they were in the process of obtaining an immigrant visa at the American Consulates abroad.
  
  

• I-601, Waiver for Inadmissibility: There are many factors that can prevent an applicant from becoming a Legal Permanent Resident. These inadmissibility grounds may be immigration fraud or misrepresentation of a material fact, certain criminal charges, accumulation of unlawful presence in the United States, or physical or mental illness that may be a threat to the community, among others. The applicant must prove that his or her American citizen or resident spouse or parent will suffer extreme hardship. 
  
  

• I-212, Immigrants Returning after Deportation If you are an individual who has been deported or removed from the United States and who wishes to return before complying with the 5 or 10-year bar outside the United States, you may file for this waiver and establish that the favorable factors out weigh the negative factors and that permission to return to the United States must be granted in the interest of family reunification, humanitarian factors, and public interest.