US immigration law provides a special status for individuals who are not citizens but enjoy the right to live and work freely in this country. Individuals with this status are known as “permanent residents” (or “lawful permanent residents” or “resident aliens”). Permanent residents can enter and leave the US with very few restrictions, work at virtually any job that does not involve national security, sponsor certain family members for permanent residence, and later apply for US citizenship.
If you are a permanent resident you can later lose that status if you obtained that status by fraud, commit certain crimes, or live primarily outside the US. But only an immigration judge can strip you of your permanent resident status.If you are granted permanent residence, you will be given a document confirming that status that is about the size of a credit card and is informally known as a “green card.”
Obtaining permanent residence is not easy and often takes many years. Most often, you will need a sponsor to petition for you.That sponsor is called the “petitioner” and you, as the person seeking a green card, is referred to as the “beneficiary”. The sponsor is usually a close family relative or an employer or potential employer. You can be sponsored by several different family members and by a family member and an employer at the same time but even if you do qualify for sponsorship, it is only the first step in what we describe as a two-step process. The second step involves obtaining a green card, either through adjustment of status in the US or through consular processing abroad. A wide range of obstacles can arise between the first and second steps, including the possibility of many years of backlogs, the death or withdrawal of the petitioner, the presence of the three or ten-year bars, or the occurrence of numerous other “inadmissibility” factors, including criminal convictions, deportation orders, immigration fraud, and health or security related issues.
We briefly review these procedures below. They are discussed in greater detail elsewhere.
FAMILY BASED SPONSORSHIP
Only certain family members can sponsor you for permanent residence. These include a spouse who is a US citizen or permanent resident, a parent who is a is a citizen or a permanent resident or a child over 21 who is a US citizen. In several of these sponsorship categories, or “preferences” the law limits the number of green cards that can be issued each year as well as setting a limit on the total number of green cards that can be issued to citizens of any one country. This often creates long times that can extend for many years.
EMPLOYMENT BASED SPONSORSHIP
You may qualify for permanent residency based on your job skills. In most cases, you will need an employer who requires your job skills if the employer can demonstrate a shortage of US workers who are “able, willing, qualified and available” for the job. The employer must undertake a recruitment effort to try to attract US workers for the job, must describe fairly and offer to pay the US worker a “prevailing wage” as determined by the US Department of Labor. If the recruitment does not result in attracting a qualified US worker, the employer will be granted a labor certification (or PERM) that can then be used to obtain permanent residency. Not every employment case requires an employer-sponsor or a labor certification, particularly as it applies to very highly skilled workers and certain international business executives. In some cases, you may even “self-sponsor” without needing either an employer or a labor certification.
ADJUSTMENT OF STATUS vs. CONSULAR PROCESSING
US immigration law anticipates that applicants for permanent residency (called “beneficiaries”) would undergo final adjudication of their applications before a US consular official in the beneficiary’s home country. This is known as consular processing. Generally, the procedure calls for an initial approval of an I-130 family based petition or and I-140 employment based petition by USCIS. After the petition is approved, the case is forwarded to an office of the State Department in the US known as the National Visa Center or NVC. The NVC will retain the file until your application comes to the top of the visa waiting list at which time the NVC will update the file and then forward the case to the appropriate consular office abroad.
A special procedure was established to allow certain beneficiaries in the US to obtain the green card without the necessity of returning home for final processing through a procedure known as Adjustment of Status (AOS). If you are like most clients, you will generally prefer AOS over consular processing because it allows you to stay in the US while the case is being reviewed, eliminates the expense required in returning home, and generally allows you to remain in the US while you are appealing a denial of your case.
AOS is only permitted in a relatively small number of situations, including:
- If you are currently in legal status in the US when the visa number becomes available and you have not previously been in unlawful status.
- OR, you entered the US legally and you an Immediate Relative
- OR you are currently the beneficiary of Temporary Protected Status
- OR you are the beneficiary of an Employment Based application and you have been out of status less than 180 days.
Determining whether to apply for Consular Processing or Adjustment of Status is often a difficult decision and we strongly suggest that you consult with an experience immigration attorney before making you decision.