Green Card (Permanent Resident Card)

Green Card types are divided into the following general categories:

• Green Card Through Family
• Green Card Through Employment
• Green Card Through Asylum
• Additional Types of a Green Card

Immigration Through Family

The following family members of a U.S. citizen or a  lawful permanent resident (LPR) fall under the Green Card Through Family category:

Immediate Relatives

• These are a spouse, unmarried children under 21 and parents of a U.S. citizen. If a U.S. citizen is petitioning for his or her parents, the petitioner must be at least 21 years old

The Family Preference System

• This includes unmarried children who reached age of 21, married children of any age and a sponsoring U.S.  siblings of a U.S. citizen.
• A permanent resident’s family member, such as a spouse and unmarried children.

What is the benefit of applying as an immediate relative rather than under the family preference system?

Number of visas available for relatives under family preference system is subject of early limitations. Because there are more applicants in some countries than available visas, it creates backlogs and visa applicants have to wait significant amount of time, which  sometimes lasts more than a decade.

The benefit of immigrating as an immediate relative is that immediate relatives, such as a spouse, unmarried children under 21 and parents of a U.S. citizen are exempted from the yearly numerical limitations and they don’t have to wait for their visas to become available.  If they are in the United States, they can apply for their permanent residence card without leaving the country or maintaining their legal status while their application is pending. 

Family Relationships

The existence of a family relationship is the first important requirement for the intended immigrant to claim eligibility for family-based immigration. Below are the terms and their definitions as to who can petition for immigration benefits and who can be eligible for such benefits. 

Petitioner—the family member who is either a U.S. citizen or an LPR. 

Beneficiary—the foreign citizen who is related to the U.S. citizen or LPR petitioner. The beneficiary could be a principal (main recipient of the immigration benefit) or a derivative, such as a spouse or unmarried child of the principal beneficiary).

Spouse— that is, the legal and bonofide spousal relationship that is not entered for the immigration benefit. Legality of marriage is defined by laws of Beneficiary’s county, but such marriage shouldn’t offend U.S. general and state laws and regulations either. Marriage between same sex couples is recognized as a legitimate marriage by U.S. law.

Parent—it also includes a stepparent, and adoptive parent and a parent of child born out of wedlock.

Brother or sister—such relationship can be demonstrated by the fact that Petitioner and Beneficiary have at least one common parent.

Child— defined as follows:

• A child born in wedlock
• A child born out of wedlock:
• A child born through Assisted Reproductive Technology 
• A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18
• An adopted child if the child was adopted before age 16 (or before their 18th birthday, under certain circumstances)

Immigration Through Employment

This category includes the following aliens:

• People who are eligible for a Green Card through a job offer.  Most of these types of Green Card applications require a labor certification and a potential employee who is ready and willing to hire and petition for the applicant.
• Those, eligible for a Green Card through investment, such as entrepreneurs who invest in commercial enterprises that create jobs in the U.S.
• People of Extraordinary Ability and those who are eligible for a Green Card under National Interest Waiver. This category of aliens can apply for a permanent residence card through self-petitioning without having a third-party petitioner and a job offer.
• Special category Green Card applicants such as Afghan/Iraqi translators, broadcasters, employees of international organizations, Iraqis and Afghans who assisted the U.S. government, nonimmigrant visa holders under NATO-6, employees of Panama Canal, physicians under National Interest Waiver, religious workers Informants (S nonimmigrant visa holder)

The U.S. government makes available approximately 140,000 employment based Green Cards each year.  These are allocated among five “preference categories” that correspond to the qualifications of the applicant and/or the type of profession in which he or she is involved.  Typically, a prospective applicant must be sponsored by his or her employer in order to be eligible for an employment based Green Card.  However, there are some cases, such as “investor visas” or “extraordinary ability visas,” in which employer sponsorship is not required.

The Employment First Preference EB1 category is for “priority workers.”  These include persons with “extraordinary” ability, outstanding professors and researchers, and managers or executives of multinational corporations. 

The Employment Second Preference EB2 category includes persons with “exceptional” ability and professionals with an advanced educational degree or equivalent experience.

The Employment Third Preference EB3 category includes certain professionals and skilled or unskilled workers.

The Employment Fourth Preference EB4 category is for certain special immigrants.  There are many subgroups within this category, covering highly specific professions and circumstances.

The Employment Fifth Preference EB5 category is for immigrant investors.  To be eligible in this category, a prospective immigrant must invest, without borrowing, a very substantial amount of money in a job-creating commercial enterprise in the United States.

Due to the limits on the number of employment based green cards that become available each year, some categories of prospective applicants will face significant wait times—sometimes several years—before they become eligible to file their immigrant visa or Green Card application.  Eligibility is determined based on a prospective applicant’s “priority date.”  The “priority date” is typically determined based upon the date when the sponsoring employer’s petition was properly filed with the U.S. Customs and Immigration Service (USCIS).  This means that the sooner an applicant’s employer submits its petition, the sooner the applicant will become eligible to receive an immigrant visa or permanent resident status.

Immigration Through Asylum

A person who fears persecution in his or her home country on account of race, religion, ethnicity, nationality, or social group can seek asylum in the United States.  The grounds for seeking asylum are limited to these bases; the mere fact that there is an ongoing war or an uninhabitable situation in one’s home country will not make a person eligible for this immigration benefit.

Process

In order to obtain asylum status, a person must go through an interview with an USCIS officer or immigration judge.

Seeking asylum can be an “affirmative” or “defensive” process. “Affirmative” one is when an applicant, on his or her initiative, submits an application before removal (deportation) proceedings have commenced. A “defensive” application occurs when removal proceedings have already started and an applicant submits the application as a defense against his or her removal. The main practical difference between these two is that the first one takes place at the USCIS office and the latter at the immigration court.   If an officer adjudicating an affirmative petition does not grant asylum, the case is referred to the immigration judge for removal (deportation) proceedings. At that point the case becomes defensive.

Asylum Bars

A person may face persecution in his or her country due to race, nationality, religion, ethnicity, or social group, and yet not be eligible for asylum because of certain bars defined by law. The most frequent bar is the one-year filing deadline.   If an application is not submitted within one year of the applicant’s arrival in the United States, the applicant is barred from obtaining asylum unless certain exceptions apply. However, the applicant can be eligible for other forms of relief such as Withholding of Removal. Withholding of Removal is a less favorable type of relief than asylum because it is not considered to be a legal status. It does not pave the way to a Green Card or citizenship, nor does grant a travel permit. The only collateral benefit associated with Withholding of Removal is a work permit, which is subject to renewal. This is why it is important for an asylum seeker to obtain a assistance from an immigration lawyer as soon as possible in order to avoid missing the one-year deadline.

The deadline for submitting the application is not the only restriction that bars one from obtaining asylum. If an applicant persecuted others, committed a serious crime, or represents a risk to U.S. security, he or she will be barred from receiving asylum as well.

One year after obtaining asylum, an Asylee (a person who is granted it) can apply for a Green Card.  Four years after receiving a Green Card, an Asylee will be eligible for naturalization.

Additional Types of the Permanent Resident Card

There are also other types of a Green Card which can be obtained through the following program:

• Diversity Visa Program (Green Card Lottery)
• Fiancé(e) visa
• Special Immigrant Juvenile Status – foreign children in the U.S. who have been abused, abandoned, or neglected
• Battered Spouse or Child (VAWA)
• Person born to a foreign diplomat in the U.S.
• Widow(er) of a U.S. Citizen
• V nonimmigrant visa for spouses and children of permanent residents
• Member of armed forces
• Amerasian Child of a U.S. Citizen – individuals who were fathered by a U.S. citizen and born in Korea, Vietnam, Laos, Cambodia, or Thailand between January 1, 1951 and October 21, 1982
• American Indian Born in Canada
• Cuban native or citizen
• Haitian refugee
• Indochinese Parole Adjustment Act – individuals from Vietnam, Cambodia and Laos who were admitted or paroled into the United States prior to October 1, 1997
• Nicaraguan and Central American Relief Act (NACARA) – individuals from Guatemala, El Salvador, and the former Soviet
• Registry (People who have been in the United States since January 1, 1972, irrespective of their immigration status)
• Victim of Trafficking (T Nonimmigrant visa holder)

Adjustment of Status

Adjustment of Status refers to the process of obtaining a Green Card for those who are already physically present on the territory of the United States.  When an intended immigrant plans to apply for a Green Card and is outside the U.S., he or she is required to apply to a U.S. consulate in his or her country for a visa.  First, the person is issued an immigrant visa and upon arriving in the U.S., he or she will receive a Green Card. 

In the case of Adjustment of Status, obtaining a Green Card is much easier and time-saving.  A person files an immigration petition and an application for Adjustment of Status with USCIS without leaving the U.S. While the application is being processed, he or she can obtain work authorization and in some cases a permit to travel outside the country.

Although Adjustment of Status is a very convenient way to obtain a Green Card compared to others, not everyone who is eligible for a Green Card can adjust his or her status.  If a person entered the territory of the U.S. illegally, he or she cannot adjust status.  In technical terms, this person is considered to have been admitted without inspection; therefore, immigration regulations require such person to leave the country and go through the immigration process at a U.S. consular service abroad.  There are some exceptions to this rule, though, such as seeking asylum in the U.S.  If a person fears persecution in his or her country and comes to the U.S. without inspection, such person is still eligible for adjustment of status, provided other requirements are met.

Usually, if a person exceeded an authorized period of stay for more than 180 days or was involved in illegal employment in the U.S., he or she cannot adjust status, but again there are some exceptions. One of the exceptions applies to an intended immigrant whose immediate relative is a U.S. citizen.   In such a case, illegal employment and long presence in the country will not render the applicant ineligible to adjust his or her status. 

Another bar to Adjustment of Status is committing a crime of moral turpitude.  Such crimes also are also a bar to getting a visa or obtaining a Green Card through consular processing. There is no pre-defined definition of what crimes are considered to be crimes of moral turpitude, but usually these crimes are those that involve lying or violence.  If a person committed a crime of moral turpitude, the bar to adjust status can be lifted only by obtaining a waiver, which is quite a complicated process.  Therefore, it is advisable to hire a knowledgeable immigration attorney in order to maximize the chances of obtaining a favorable decision.

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (248) 454-1057.  I accept clients from across the U.S. and around the world.  My law office is conveniently located in Bloomfield Hills, Michigan for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.