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Overview of Legal Immigration to the United States

There are four main ways in which foreign-born individuals can come to the United States legally:  as a family-based immigrant, sponsored by a close family member; as an employment-based immigrant, sponsored by a U.S. employer or by investing in the U.S.; as a refugee, fleeing persecution in his or her homeland; or through a diversity immigration lottery program.

Legal immigration is a highly regulated and tightly controlled system that allows a limited number of close family members and much-needed employees to come to the United States each year.  Within the employment-based system, certain religious workers and investors can also obtain permanent residence.   Through legal immigration, the U.S. also fulfils its longstanding tradition of protecting a tiny fraction of the world’s refugees.

Who is a legal immigrant?  A legal immigrant is a foreign-born individual who has been admitted to reside in the United States as a lawful permanent resident (LPR).  LPRs are given immigrant visas, commonly referred to as “green cards.”

Non-immigrants are foreign-born individuals who are permitted to enter the United States for a limited period of time, and are given only temporary (non-immigrant) visas.  Examples of non-immigrants are students, tourists, temporary workers, business executives, and diplomats. (See Appendix A). Some temporary visas serve as a bridge for the foreign national who is in the process of obtaining LPR status.

There are other groups of non-citizens who may neither be LPRs or non-immigrants but they are authorized to remain in the United States and are not considered to be unlawfully present. These include recipients of deferred action through executive actions and people granted Temporary Protected Status. President Obama’s Immigration Accountability Executive Actions of November 20, 2014 will greatly expand the group of people who will be eligible for deferred action.

How does someone come to the U.S. as an immigrant?   A foreign-born individual can become a lawful permanent resident in one of the four main ways:

  • Through family-based immigration, a U.S. citizen or LPR can sponsor his or her close family members for permanent residence.   A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), minor and adult children, and brothers and sisters.  An LPR can sponsor his or her spouse, minor children, and adult unmarried children.  In most cases,  citizens or LPRs wishing to petition for a family member must earn at least 125% of the poverty level and sign a legally enforceable affidavit of support to that effect.
  • Through employment-based immigration, a U.S. employer can sponsor a foreign-born employee for permanent residence.  Typically, the employer must first demonstrate to the Department of Labor that there is no qualified U.S. worker available for the job, but labor certification is not required for all of the EB categories, and even if required can be waived.
  •    A person located outside the United States who seeks protection in the U.S. on the grounds that he or she faces persecution in his or her homeland can enter this country as a refugee.  In order to be admitted to the U.S. as a refugee, a person must prove that he or she has a “well-founded fear of persecution” on the basis of at least one of the following internationally recognized grounds: race, religion, membership in a social group; political opinion; or national origin.  Refugees generally apply for admission to the United States in refugee camps or at designated processing sites outside their home countries.  In some instances, refugees may apply for protection from within their home countries (e.g. Cuba, Vietnam, former Soviet Union).  If accepted as a refugee, the person is sent to the U.S. and receives assistance through the “refugee resettlement program.”

A person who is already in the United States and fears persecution if sent back to his or her home country may apply for asylum in the U.S.  Once granted asylum, the person is called an “asylee.”  Like a refugee, an asylee must prove that he or she has a “well-founded” fear or persecution based on one of the five enumerated grounds listed above.

  • To qualify for the diversity visa lottery, individuals must have a high school education or its equivalent, or within five years preceding the application, have had at least two years of experience in an occupation requiring at least two years of training or experience. Applicants for the lottery can electronically file only one application every year during a designated period.

How many immigrants are admitted to the United States every year?

Legal immigration to the United States is a tightly controlled, highly regulated system.  There is a limit on the number of foreign-born individuals who are admitted to the United States annually as family-based or employment-based immigrants or as refugees.

  • Family-based immigration is limited by statute to 480,000 persons per year.   Family-based immigration is governed by a formula that imposes a cap on every family-based immigration category, with the exception of “immediate relatives” (spouses, minor unmarried children, and parents of U.S. citizens).  (See Appendix B).  The formula allows unused employment-based immigration visas in one year to be dedicated to family-based immigration the following year, and unused family-based immigration visas in one year to be added to the cap the next year.  This formula means that there are slight variations from year to year in family-based immigration.  Because of the numerical cap, there are long waiting periods to obtain a visa in most of the family-based immigration categories. 
  • Employment-based immigration is limited by statute to 140,000 persons per year.   (See Appendix C).  In most cases, before the United States Citizenship and Immigration Service (USCIS) will issue an employment-based immigrant visa to a foreign-born individual, the employer first must obtain a “labor certification” from the U.S. Department of Labor confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired.  The Department of Labor also must confirm that employment of the foreign-born individual will not adversely affect the wages and working conditions of the U.S. workers.  Under certain circumstances, the job offer requirement as well as the labor certification can be waived if the foreign-born individual can demonstrate that he or she is working in the national interest of the United States.  There are other categories that do not require labor certification, such as persons of extraordinary ability, outstanding professors/researchers and multinational executives or managers.  (See Overview of Employment-based Immigration). Also, certain investors who invest $1 million (this amount is relaxed to $500,000 in either rural or high unemployment areas, known as Targeted Employment Areas (TEA)) and create 10 jobs can also obtain permanent residence.
  • The United States accepts only a limited number of refugees from around the world each year.  This number is determined every year by the President in consultation with Congress.  The total number of annual “refugee slots” are divided among different regions of the world.
  • No more that 50,000 diversity visas can be issued each year.
  • Although these are the main categories, there are many other provisions that allow an individual to obtain lawful permanent residence. For example, a person who is in removal proceedings can seek cancellation of removal upon demonstrating, among other things, 10 years of physical presence prior to the notice to appear before an Immigration Judge, good moral character for this period, and that his or her removal would result in exceptional and extremely unusual hardship to the individual’s citizen or permanent resident child, spouse or parent.  Victims of certain crimes, including trafficking crimes, who have received visas, can ultimately apply for permanent residence in the US.

Appendix A

NONIMMIGRANT VISA CATEGORIES

A                          Diplomats
B                          Visitors (business/pleasure)
C                          Transit
D                          Crew members
E                          Treaty traders/investors
F                           Academic students
G                          Representatives or employees at International Organizations
H-1B                    Temporary professional workers
H-2A/H-2B          Agricultural or non-agricultural temporary workers
H-3                       Trainees
I                           Journalists/media
J                           Exchange visitors
K-1/K-3               Fiancés/fiancées of US citizens or spouses of US     Citizens waiting for the green card
L-1A                     Intra-company transferees who are executives or managers
L-1B                     Intra-company transferees who are specialized knowledge workers
N                          Parents or children of special immigrants
O                          Persons of extraordinary ability
P                           Athletes, artists or entertainers
Q                          International Cultural exchange visitors
R                          Religious workers
S                           Federal witnesses
T                           Trafficking of persons victims
TN                        NAFTA professionals (Mexico and Canada)
U                          Certain crime victims
V                          Certain spouses/children of green card holders waiting for green cards

Appendix B

FAMILY-BASED IMMIGRATION

Family-based immigrants are admitted to the U.S. either as immediate relatives of U.S. citizens or through the family preference system.

Immediate relatives are:

  • spouses of U.S. citizens;
  • unmarried minor children of U.S. citizens; and
  • parents of U.S. citizens.

There is no cap on the number of visas available every year for immediate relatives.

The family preference system allows into the U.S.:

  • adult children (unmarried and married) and brothers and sisters of U.S. citizens; and
  • spouses and unmarried children (minor and adult) of LPRs.

There are a limited number of visas available every year under the family preference system.  Under current immigration law, visas are allocated as follows:

THE FAMILY PREFERENCE SYSTEM

U.S. SPONSOR RELATIONSHIP PREFERENCE # VISA ALLOCATED
U.S. Citizen unmarried
adult children
(21 years or older)
1st Preference 23,400 visas/year, plus
anyvisas left from the
4th preference
LPR spouses and minor
children
2nd Preference 87,900 visas/year
LPR unmarried adult
children
(21 years or older)
2nd Preference 26,300 visas/year
U.S. Citizen married adult
children
3rd Preference 23,400 visas/year, plus any
left over from the
1st and 2nd preferences
U.S. Citizen brothers and sisters 4th Preference 65,000 visas/year, plus any
left over from the
previous preferences

Appendix C

EMPLOYMENT-BASED IMMIGRATION

THE EMPLOYMENT PREFERENCE SYSTEM allows immigrants who have skills and talents in the United States to be admitted to work.  Currently, immigration law allots 140,000 employment-based visas to immigrants.  These employment-based visas are divided into the following categories:

FIRST PREFERENCE:

    Up to 40,000 visas a year may be issued to priority workers.  People who have “extraordinary ability” or who are “outstanding professors and researchers” or “certain multinational executives and managers” fall into this category.  In addition, any visas left over from the fourth and fifth preferences (see below) are added to this category.

SECOND PREFERENCE:

Up to 40,000 visas (plus any visas left over from the first preference) may be issued to persons who are “members of the professions holding advanced degrees or aliens of exceptional ability.”  This category usually requires “labor certification” unless the individual can establish that he or she is going to work in the national interest of the United States.

THIRD PREFERENCE:

Up to 40,000 visas a year (plus any visas left over from the first and second preferences) may be issued to skilled workers, professionals, and other workers.  The other workers category covers workers who are “capable of performing unskilled labor,” and who are not temporary or seasonal.  Workers in this category are limited to 5,000 visas per year.  Skilled workers must be capable of performing skilled labor requiring at least two years training or experience.  These categories always require a “labor certification.”

FOURTH PREFERENCE:

Up to 10,000 visas a year may be issued to certain special immigrants, including ministers, religious workers and others.

FIFTH PREFERENCE:

    Up to 10,000 visas a year may be issued to persons who have between $500,000 and $3 million to invest in a job-creating enterprise in the U.S.  At least 10 U.S. workers must be employed by each investor.  The amount of money can vary depending on which area of the country will benefit from the investment.  If the investor alien fails to meet the conditions specified, he or she can lose permanent resident status.

Overview of Employment-Based Immigration in the United States

I.   INTRODUCTION

Foreign nationals who are skilled or educated and who have job offers have the possibility of immigrating to the United States. Employment-based (EB) immigration is limited by the Immigration and Nationality Act (INA) to 140,000 persons per year.

INA § 203(b) sets forth five EB preferences.  They use up the 140,000 visas annually in the following proportions:

EB-1 provides 40,000 numbers for persons of extraordinary   ability, outstanding researchers and professors, and multinational  managers and executives;

EB-2 provides 40,000 numbers for persons with advanced degrees or with exceptional ability plus any unused EB-1 numbers;

EB-3 provides 40,000 numbers for professionals having baccalaureate degrees, skilled and unskilled workers plus any unused EB-1 and EB-2 numbers;

EB-4 provides 10,000 numbers to special immigrants, which includes religious workers; and

EB-5 provides 10,000 numbers for investors who create 10 jobs and invest up to $1 million (although the amount may be higher or lower depending on whether it is a rural area or a low or high unemployment area (TEA)).

In addition, no country can use more than 7% of the worldwide numbers in any of the above categories.  Therefore, nationals of a particular country are limited to no more than 9,800 EB numbers per year.  Due to greater demand for EB visas from countries with large populations like China and India, the EB-2 and EB-3 backlogs often tend to be far greater for persons born in these countries.

This overview focuses on the first three preferences – EB-1, EB-2, and EB-3. The process is generally three fold: a) The employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL) (although, as discussed below, labor certification is not required in some cases);[1] b) the employer applies for immigrant visa classification by filing Form I-140 under the EB-1, EB-2 or EB-3[2] and c) the foreign national applies for lawful permanent residency or the “green card” through adjustment of status[3] in the United States or consular processing overseas.

II. LABOR CERTIFICATION 

In most cases under the EB-2 and in all cases under the EB-3, the employer must obtain “labor certification” from the DOL confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired.[4] To establish this, the employer must advertise and perform other recruitment efforts to try to find someone who is already a U.S. citizen or permanent resident qualified to take up the position. The employer should have also offered the position at the normal or prevailing wage.

The key to the labor certification process is for the employer to decide true minimum requirements for the position. The requirements  must be normal to the occupation and not more than the worker possessed when hired for the position.  Nor can the requirements be tailored to the foreign worker’s specific skills and qualifications. A test of the labor market is done through newspaper advertisements and other forms of recruitment, along with an internal posting and a job order on a DOL job site. Any responses to the recruitment must be evaluated carefully and in good faith. The employer can reject applicants only for lawful, job-related reasons.

A labor certification is only a first step in the permanent resident process to obtain the “green card.” It continues to be a lengthy process and does not give authorization for a foreign national to remain or work in the United States unless he or she is in another nonimmigrant visa status that authorizes work, such as an H-1B visa.

a.Describe the Labor Certification Programs?

On March 28, 2005, the DOL streamlined the labor certification process under a system called Program Electronic Review Management (PERM).[5] An employer is required to place two Sunday advertisements for the position. For professional positions, the employer has to conduct three further recruitment steps. The employer also needs to place a 30-day job order on a website authorized by the State Workforce Agency (SWA), as well as obtain a prevailing wage determination from the SWA. Furthermore, the employer has to internally post a job notice for 10 days. After the employer has completed the mandated recruitment steps, it may electronically file a PERM application attesting that it has undertaken the necessary recruitment under PERM as well as attesting to various other requirements within 180 days from the earliest recruitment step. If the application is not audited, it generally gets approved in about 6 months. The DOL, however, may select an application for an audit or for supervised recruitment and it would exercise this scrutiny for both problematic and random applications. Many applications have been selected for an audit resulting in delays of up to 1.5 years. Although PERM was designed to streamline and expedite labor certification, the program has once again been mired by delays and backlogs especially if a case has been selected for audit. In some cases, the DOL will conduct a supervised recruitment, and these are becoming increasingly common in recent months. Furthermore, in an era of increased unemployment, previously qualified laid off workers by the employer must be considered if the application is being filed within 6 months of the lay off of a qualified worker in the same or related occupation.

b. Are There Any Ways To Expedite The Labor Certification Process?

Physical therapists and professional nurses have been exempted from most of the labor certification requirements.[6] Labor certifications for college and university teachers and performing artists can also be expedited through a process known as a “Special Handling.”[7] Also, certain persons of exceptional ability are exempted from labor certification. [8]

c. Can Labor Certification Be Avoided Altogether?

Labor Certification is only required for individuals applying under the EB-2 and EB-3.

Individuals who qualify under the EB-1 do not require a labor certification. The three categories under the first preference are: (I) Persons of Extraordinary Ability, (ii) Outstanding Professors and Researchers; and (iii) Multinational Executives or Managers. Applications requesting a waiver of the job offer requirement in the national interest under the employment-based second preference also do not require labor certification.

(i) Persons of Extraordinary Ability  

An individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. [9] Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. No job offer is required. The legislative history indicates that this category is intended to be “for the small percentage of individuals who have risen to the very top of their field of endeavor.”

Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards.

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.

3. Published material about the person in professional or major trade publications or other major media.

4. Participation as a judge of the work of others.

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

6. Authorship of scholarly articles in the field.

7. Artistic exhibitions or showcases.

8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation.

9. High salary or remuneration in relation to others in the field.

10. Commercial success in the performing arts. [10]

An applicant may also submit comparable evidence if the above standards do not readily apply. Comparable evidence may include expert opinion letters attesting to the applicant’s abilities.

A recent decision has clarified that the USCIS cannot require additional requirements beyond those set forth in the ten criteria. Thus, in Kazarian v. USCIS, 596 F.3d 1115, the 9th Circuit held,  “Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5.” Id. at 1121. See also Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)(criticizing the government’s circular argument requiring that “plaintiff must prove he is a doctor of extraordinary ability in order to prove that he is a doctor of extraordinary ability”); Gülen v. Chertoff, Civil Action No. 07-2148, 2008 WL 2779001 (E.D. Pa. July 16, 2008), at *4 (“Because Gülen has met the requirements of three of the subcategories of 8 C.F.R. § 204.5(h)(3), the AAO’s determination that he has not demonstrated extraordinary ability is contrary to applicable law and must be reversed”).  However, despite meeting the regulatory criteria, the USCIS still insists on a “final merits determination” where it can judge the quality of the evidence even though the petitioner has met 3 out of 10 of the regulatory criteria.[11]

(ii) Outstanding Professors and Researchers 

An individual must establish that he or she is an outstanding professor/researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field.[12]

This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities and the department, division or institution has achieved documented accomplishments in an academic field. An offer of employment is required from the sponsoring employer in the form of a letter. [13]

Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:

1. Receipt of major prizes or awards for outstanding achievements.

2. Membership in an association which requires outstanding achievement.

3. Published material in professional publications written by others about the applicant’s work.

4. Evidence of the person’s participation as a judge of the work of others.

5. Evidence of original scientific research.

6. Authorship of scholarly books or articles in the field.[14]

USICS will also apply the “final merits determination” of the evidence submitted in satisfaction of 2 out of the 6 regulatory criteria.

(iii) Multinationals Executives and Managers 

An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch or affiliate of a foreign corporation.[15] The individual must further establish that he or she worked in a managerial or executive capacity for at least one year in the past three years immediately prior to his or her entry into the U.S. in the parent, subsidiary, branch or affiliate of the U.S. entity.

(iv) National Interest Waivers 

The labor certification procedure may also be avoided altogether even under the second preference if the foreign national can establish that the “job offer” requirement should be waived in the national interest.[16]The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest.

In a precedent decision of the Administrative Appeals Office (In Re New York State Department of Transportation, 22 I&N Dec.215, a three-prong test was established:

1. The person must seek employment in an area of substantial intrinsic merit;

2. The person must demonstrate that the proposed benefit will be national in scope; and

3. The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary, i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process.

It is also worth noting that under President Obama’s Immigration Accountability Executive Actions of November 20, 2014, there will be enhanced opportunities for foreign investors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the United States. In a Memorandum from DHS Secretary Jeh Charles Johnson entitled “Policies Supporting U.S. High Skilled Businesses and Workers” dated November 20, 2014 (“Executive Actions for Skilled Workers Memo”), the DHS Secretary directs USCIS to implement two administrative improvements to the employment-based immigration system, as follows:

First, the “national interest waiver” provided in section 203(b)(2)(B) of the Immigration and Nationality Act (INA) permits certain non-citizens with advanced degrees or exceptional ability to seek green cards without employer sponsorship if their admission is in the national interest.[17]  This waiver is underutilized and there is limited guidance with respect to its invocation.  I hereby direct USCIS to issue guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.

Second, pursuant to the “significant public benefit” parole authority under section 212(d)(5) of the INA [citation omitted].  USCIS should propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.  Parole in this type of circumstance would allow these individuals to temporarily pursue research and development of promising new ideas and business in the United States, rather than abroad.  This regulation will include income and resource thresholds to ensure that individuals eligible for parole under this program will not be eligible for federal public benefits or premium tax credits under the Health Insurance Marketplace of the Affordable Care Act.”

III. IMMIGRANT VISA PETITION 

The EB immigrant visa petition (Form I-140) is filed with the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security along with the approved labor certification.  The I-140 petition must be filed within 180 days of the approval of the labor certification; otherwise the labor certification will no longer be valid.[18]   If the labor certification is not required, the I-140 petition becomes the initial filing. The priority date determines the availability of an immigrant visa.[19] For EB petitions, the priority date is either the date the labor certification is filed or the EB petition, where no labor certification is required.  The I-140 petition is filed to classify a foreign national under EB-1, EB-2 and EB-3.

Some EB categories are backlogged. This means that the cut-off date for that EB category is not current, and one has to wait for the official cut-off date to coincide with the individual’s priority date before being able to file either the final adjustment of status application, if in the US, or the immigrant visa application, if overseas (see below). Since October 2015, the State Department has created a dual date system in the visa bulletin – the filing date and the final action date. If the filing date is current, an applicant may file an adjustment of status application or an immigrant visa petition, if overseas. While the filing date only allows the applicant to file, it is the final action date that determines whether the applicant will be granted permanent residence. Note that under the new visa bulletin system, the USCIS will determine whether the filing date is applicable each month for purposes of filing adjustment of status applications. In the event that the USCIS determines that the filing date is not applicable, applicants will need to rely on the final action date in order to file an adjustment of status application within the US.

If there is a backlog, it usually takes many more years to immigrate under the particular preference category.  Note that India and China are more backlogged than other countries in the second and India in the third EB preferences. The general rule is that a person is charged to his/her country of birth, and not the country of citizenship, although there are exceptions under which an individual can cross-charge to another country.[20] The main exception is the ability for one to cross-charge to the spouse’s country of birth.[21]

The Executive Actions for Skilled Workers Memo include taking steps to modernize and improve the visa process, which includes ensuring that all immigrant visas are issued to eligible individuals when there is sufficient demand for such visas and improving the system for determining when immigrant visas are available to applicants during the fiscal year. The dual date system in the visa bulletin is part of the visa modernization efforts.

IV. APPLYING FOR ADJUSTMENT OF STATUS OR CONSULAR PROCESSING 

a. Adjustment of Status

If the foreign worker is within the United States, he or she may apply for adjustment of status by filing an application with the USCIS in the U.S. Under a 2002 rule, the adjustment of status application may be filed concurrently with the Form I-140, discussed in the previous section.[22]

As noted, the individual’s filing date under the new visa bulletin should be current at the time of filing this application. Thus, if the foreign worker is in an EB preference that is backlogged, he or she can only file the I-485 application upon the filing date date becoming current. The I-485 application can remain pending for several months before the USCIS issues lawful permanent residence to the foreign national. An adjustment applicant may apply for a temporary work permit during the pendency of the application.[23] If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.”[24] However, “advance parole” is not required for people on H-1B or L status with the corresponding visas stamped on their passports. Upon approval of the application for adjustment of status and if the final action date in the visa bulletin coincides with the priority date of the individual applicant, the individual is granted the “green card.”[25] But if one who is maintaining H-1B or L status and reenters on an advance parole, this person can still apply for an extension of that H or L status, and may continue his/her H-1B or L employment after entering on advance parole. [26]

b. Who Are Eligible For Adjustment Of Status?

Adjustment of status is only available to individuals who have always maintained lawful status in the United States.[27] However, those whose labor certifications or immigrant visa petitions were filed prior to April 30, 2001, could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their non-immigrant visas, and pay a penalty fee of $1000.[28] Also, certain EB visa applicants could adjust status if they had not been out of status for more than an aggregate of 180 days since their last admission, even if the labor certification was filed after April 30, 2001.[29]

c. Portability

An adjustment of status applicant based on an EB first, second or third preference petition that is pending for more than 180 days “shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in a same or similar occupational classification as the job for which the petition was filed.”[30]

d. Consular Processing 

Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must also return to their home country for consular processing. Many opt for consular processing as adjustment of status is more time consuming. On the other hand, adjustment allows for benefits such as portability and employment authorization, even for the accompanying family members. Individuals who have been unlawfully present by more than 180 days would be barred from reentering the United States for three years.[31] Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for ten years.[32] There are very limited exemptions for overcoming these bars, and those who are unable may apply for a waiver by demonstrating extreme hardship to a spouse or parent, who is a US citizen or permanent resident.[33]

e. H-1B Extensions Beyond 6 Years  

Individuals who cannot process their green cards timely should ensure that they can remain in H-1B status even beyond the maximum allotted time of six years. §106(a) of the American Competitiveness in the 21st Century Act (AC21) allows one to apply for a 7th-year H-1B extension if a labor certification or an I-140 petition was filed 365 days prior to the end of the 6th-year.

§104(c) of AC21 also provides a one-time protection for an H-1B visa holder by allowing him or her to extend the 6th-year period for three years at a time if he or she is the beneficiary of a first, second or third preference employment-based approved petition, but due to backlogs in the employment preferences, is unable to file for adjustment of status.  Such H-1B extensions will be granted in three year increments.

[1] INA §212(a)(5)(A).

[2] INA §203(b)(1), 203(b)(2) & §203(b)(3).

[3] INA §245(a).

[4] 20 CFR §656, 69 Fed. Reg. 77325-77421 (Dec. 27, 2004).

[5] Id.

[6] 20 CFR §656.15(c)(1) & §656.15(c)(2).

[7] 20 CFR §656.18(b); INA §212(a)(5)(A)(ii).

[8] 20 CFR §656.15(d).

[9] INA §203(b)(1).

[10] 8 CFR §204.5(h)(3).

[11] USCIS, Office of the Director, Policy Memorandum, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14, No. PM-602-0005.1 (Dec. 22, 2010).

[12] INA §203(b)(1)(B).

[13] 8 CFR §204.5(i)(3)(iii).

[14] 8 CFR §204.5(h)(3).

[15] INA §203(b)(1)(C). 

[16] INA §203(b)(2)(B).

[17] INA § 203(b)(2)(B), 8 U.S.A. § 1153(b)(2)(B).

[18] 20 CFR §656.30(b).

[19] 22 CFR §42.53(a).

[20] INA §202(b); 22 CFR §42.12.

[21] 22 CFR §42.12(c).

[22] 8 CFR §245.2(a)(2)(i).

[23] 8 CFR §274a.12(c)(9).

[24] 8 CFR §245.2(a)(4)(ii).

[25] 8 CFR §245.2(a)(4)(ii)(C).

[26] Memo, Cronin, Acting Assoc. Comm., Office or Programs HQADJ 70/2.8.6, 2.8.12, 10.18 (May 16, 2000).

[27] INA §245(a) & (c).

[28] INA §245(i).

[29] INA §245(k).

[30] INA §204(j).

[31] INA §212(a)(9)(B)(i)(I).

[32] INA §212(a)(9)(B)(i)(II).

[33] INA §212(a)(9)(B)(v). 

Global Immigration

Global Immigration

World Map

The Firm has access to a well developed database of law firms from all over the world who can assist  clients in complying with immigration laws of other countries.

Upon contacting this Firm, we will work with the foreign law firm to assist and understand your needs, acquire the necessary work and residency permits and also ensure compliance with the foreign country’s immigration laws.

The Firm will be able to assist you with respect to your immigration needs for the following countries:

ASIA PACIFIC EUROPE, MIDDLE EAST AND AFRICA THE AMERICAS
Australia
China
Hong Kong
India
Indonesia
Japan
Malaysia
New Zealand
Philippines
Korea
Singapore
Taiwan
Thailand
Vietnam
Austria
Belgium
Czech Republic
Denmark
France
Germany
Greece
Hungary
Ireland
Israel
Italy
Netherlands
Norway
Poland
Russia
South Africa
Spain
Sweden
Switzerland
Turkey
United Arab Emirates
United Kingdom
Argentine
Brazil
Canada
Cayman Islands
Chile
Costa Rica
Mexico
Peru.