IMMIGRANT VISAS

EMPLOYMENT IMMIGRATION | FAMILY IMMIGRATION

EMPLOYMENT IMMIGRATION:

An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

The USCIS must approve an immigrant petition (application) that was filed for you, usually by an employer.

In most employment categories (See EB-2 and EB-3 eligibility and filing information below), a U.S. employer must complete a labor certification (ETA Form 9089) on your behalf. This important stage involves advertising for the position. Once the labor certification is approved, your employer can file Form I-140.  

If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. Please see How Do I Get an Immigrant Visa Number? and How Do I Become a Lawful Permanent Resident while in the United States? If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. Consulate to complete the processing for an immigrant visa.

LABOR CERTIFICATION

In the complex Labor Certification process, a U.S. employer seeks a Labor Certificate from the U.S. Department of Labor for the benefit of a prospective alien employee. A Labor Certificate is a pre-requisite for a U.S. employer to file an immigration petition for the alien employee based on EB-2 and EB-3 categories.

The Labor Certification requirement is waived for a National Interest Waiver petition under EB-2 and is not required in an EB-1 petition. For information on whether you qualify for the National Interest waiver under EB-2 or EB-1 categories, please consult with our experienced immigration attorneys.

In Labor Certifications, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Since the Labor Certification is filed on the basis of prospective employment, it does not matter whether the alien works for the sponsoring employer during the application or after it is approved. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency.

EB-1 CATEGORY

A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. There are three (3) types of EB-1 petitions:

. Alien of Extraordinary Ability EB-1(a)

. Outstanding Researcher/Outstanding Professor EB-1(b)

. Managers and Executive Transferees EB-1(c)

The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement.

EB-2 CATEGORY

A Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence reserved for members of the professions holding advanced degree or aliens of exceptional ability. Applicants must have a job offer and labor certification. However, USCIS may waive the job offer and labor certification requirements if it is in the national interest to do so.

EB-3 CATEGORY

A Third Preference Immigration Petition (EB-3) is an employment-based petition for permanent residence reserved for skilled workers, professionals and other workers including foreign nationals with less than two years of training and work experience. All applicants in EB-3 category must have a job offer and labor certification.

 
FAMILY IMMIGRATION:

Congress, by conferring permanent residence eligibility upon certain family-based groups, has properly emphasized the importance of family unification in American immigration law. The preference system is a method, based on categories (or “preferences”), of distributing the limited number of immigrant visa numbers available each year. Obtaining an immigrant visa number is an essential step in the immigration process, and it means that an immigrant visa has been assigned to you. The documentation needed for a family-based petition for permanent residence is the same for immediate relative and family preference applicants. In short, the following is required:

Immediate Relatives:

§201(b) of the Immigration and Nationality Act (”INA”) defines “immediate relatives” to include:

a. spouses,

b. children (under the age of twenty-one), and

c. parents of U.S. citizens (if the citizens are at least 21 years old).

This category is clearly reserved for immediate relatives of U.S. citizens, not permanent residents. There is no limit to the number of immediate relative visas that may be issued in this category in any given year.

Spouses:

In order to obtain immigration benefits available to a “spouse”, there must be a valid and subsisting marriage between the parties. Generally, marriage is valid for immigration purpose if it is recognized by the law of the state or country where it occurs. However, a marriage between persons of the same sex will not be valid for immigration purposes, regardless of its possible validity where the marriage took place. Proxy marriages are specifically excluded by the INA, unless the marriage has been consummated. A marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife. Religious ceremonies alone may not create a binding marriage in some jurisdictions. However, if a religious ceremony alone is in fact sufficient in the jurisdiction where it occurs, the marriage is valid. A marriage ceremony might also be valid for immigration purposes, if the parties entered into it in good faith, believed themselves to be married and lived together as husband and wife.

The marriage must be legally subsisting at the time that the immigration benefit is sought. The only exception to this requirement applies to certain spouses of deceased U.S. citizens (discussed below). A marriage can be treated as legally subsisting even though the parties are separated, so long as they are still legally married. The courts have generally rejected the view that marriage must be “viable” to support entitlement to immigration benefits. It is now the administrative view that immigration benefits based on marriage may be sought even if the parties are separated, although the separation may be considered in determining whether the marriage was bona fide. However, if the couple is legally separated (i.e., by written agreement recognized by a court, or by court order) the alien no longer qualifies as a “spouse” for immigration purposes even through the couple has not obtained a final divorce (see Matter of McKee 17 I&N 332 and Matter of Zenning 17 I&N 2816).

Please read here our firm’s cutting edge legal analysis on the issue of Approval of Adjustment of Status after Divorce and Separation.

As a result of the Immigration Act of 1990, immediate relative status may be granted to an alien who was the spouse of a U.S. citizen for at least two years at the time of his or her death and not then legally separated, provided the alien spouse files a visa petition as an immediate relative within two years and has not remarried. This applies even if the deceased spouse was not a U.S. citizen for the entire two-year period before his or her death. However, the deceased spouse must have been a U.S. citizen at the time of his or her death. In July 2009, the law has changed, and the two year requirement of being married has been removed.

Children:

General
The meaning of “child” is not as simple as it first appears. For the purposes of family-based immigration, a “child” is defined in INA §101(b)(1) as follows:

A. a child born in wedlock;

B. a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

C. a child legitimated under the law of the child’s residence or domicile, or under the law of father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

D. a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

E. a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

F. a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child’s proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration benefits are sought. A child includes only an unmarried person under the age of 21. Accordingly, the child must be both unmarried and under 21 at the time the visa is issued by a consulate and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. However, certain exceptions to this “age-out” problem exist as a result of the Child Status Protection Act, which is discussed elsewhere in this web site.

Parents:

In order to petition a parent under the immediate relative category, the U.S. citizen petitioner must be at least 21 years old. “Parent” means a parent who is such by reason of his or her relationship to a “child” within the statutory definition of the term. However, the “child” must have qualified as such within the statutory definition at the time their relationship was established and the parent-child relationship must continue to exist at the time that the immigration benefit is sought.

The Family-Based Preference Categories:

Family-based preference categories apply to family immigrants, other than immediate relatives. The first preference category consists of unmarried sons or daughters of U.S. citizens. The second preference family-based category deals with relatives of permanent residents of the United States and is divided into two subgroups each with a separate waiting list for available visas: (a) spouses and minor children of permanent residents, and (b) unmarried sons or daughters (but not their children) of permanent residents. A married son or daughter of the U.S. citizen falls under the third preference category. The fourth preference category permits U.S. citizens over the age of twenty-one to petition their brothers and sisters for permanent residence.

These preference categories are subject to annual visa limits. This means that there are visa backlogs in some preferences. Available visas are issued to beneficiaries in order of their priority date, which is the date that their petition for permanent residence is filed. To see the applicable priority dates for each family-based category, click here.

Preference categories for relatives of permanent residents have longer backlogs than preference categories for relatives of U.S. citizens. Also, India, Mexico and the Philippines have a higher demand for immigrant visas and are subject to country-specific annual limits. Country of birth is relevant rather than citizenship. Therefore, Canadians originally born in one of these countries will be placed on the longer country-specific waiting lists.

Priority dates do not necessarily progress in real time. For example, although the backlog for the family-based fourth preference may be 10 years, the actual wait is far longer. The rate of progression for priority dates often varies. In fact, as the end of each fiscal year approaches (September 30th), it is not unusual to see a retrogression in priority date. This is done to keep visa issuances within the annual numerical limitation.

Derivative Status for Spouses & Children of Family Based Immigrants:

The immediate relative category normally does not confer derivative status on a spouse or child of an immediate relative. In other words, the alien spouse or child of an immediate relative does not automatically acquire permanent residence when the principal applicant obtains such status. The only exception is for children of a widow or widower of a U.S. citizen.

Notwithstanding the unavailability of derivative status, some family members of an immediate relative may be entitled independent immediate relative status. For example, an alien child of the principal beneficiary who is under the age of 18 at the time of the principal beneficiary’s marriage to the petitioner will qualify as a stepchild. However, a separate visa petition must be filed for each immediate relative.

In contrast, the spouse or child of a preference immigrant accompanying or following to join him or her, is entitled to the same status and the same order of consideration as the principal immigrant. The derivative classification of such spouse or child attaches immediately upon approval of the principal alien’s classification, and requires no separate visa petition.