In the United States, there are many foreign nationals in various forms of compliance with our immigration laws. Some are here legally and some are here illegally. Many are in the process of obtaining the ability to remain here permanently while others are without any hope of changing their status from illegal to legal. U.S. immigration law and policy is complicated and confusing, yet it has an enormous effect on the lives of anyone who is not a U.S. citizen. Attorneys representing foreign nationals in any context need to be aware of the individual’s status in the U.S. and whether that particular status can be changed.
Foreign nationals who wish to reside and work in the U.S. permanently must obtain permanent resident status. Permanent resident status is the first step toward becoming a U.S. citizen. A permanent resident remains a national of his or her home country, but is allowed to live and work permanently in the United States, provided they do not do anything to trigger deportation. Permanent resident status is an immigrant visa, and is evidenced by the Alien Registration Card, more commonly known as a "Green Card," although it is no longer green. Only those individuals eligible for an immigrant visa under the Immigration and Nationality Act ("INA")1 can obtain permanent resident status.
The primary purpose of this article is to outline the means by which a foreign national can obtain permanent resident status. For the most part, foreign nationals in the United States fall into one of three categories:
(1)Unauthorized aliens. These are individuals in the U.S. without authorization from our government. Some are individuals who have come here legally and overstayed their visas, and others are individuals who entered illegally.
(2)Nonimmigrant visa holders. These individuals are in the U.S. for a specific purpose, and have a visa consistent with that purpose. Examples include visitors, students, temporary foreign workers, foreign media, and diplomats.
The first question in determining whether a foreign national can obtain permanent resident status is, "Is the individual eligible for permanent residence?" The United States does not have an open border, and only individuals who qualify for permanent resident status will be granted the ability to live and work here permanently. After eligibility for permanent residence is established, the second question is, "Can this individual obtain permanent residence?" The primary focus in determining whether or not an eligible individual can obtain permanent residence is the individual’s history in the U.S. and their present basis for being in the U.S. Individuals that entered the U.S. illegally, without inspection, are generally prohibited from obtaining permanent residence inside the United States. Individuals who were initially in the U.S. on nonimmigrant visas, but overstayed or violated those visas, may also be prohibited from obtaining permanent residence in the U.S.
The two main methods of immigrating to the United States are through family and through employment. There are other methods such as diversity visa lottery2, asylum3, and cancellation of removal4. However, this article will focus on family and employment based immigration.
The basic principle of family-based immigration is that the foreign national has a specific relationship to either a U.S. citizen or a permanent resident. For many individuals immigrating through family, it also means waiting for many years for a visa to become available, as visas for most family-based immigrants are limited by statute5. There are far more individuals who want these visas than there are visas available, so a form of a wait-list has been established by the U.S. Department of State.
The only individuals immigrating based on family who are not subject to the wait list are the immediate relatives of U.S. citizens6. "Immediate relative" is a term used by the INA, and it means spouse, parent, or child7 of a U.S. citizen.8 Immediate relatives are allowed to immigrate immediately by virtue of being an immediate relative of the U.S. citizen. The most common type of immediate relative immigration is based on a marriage. When a U.S. citizen marries a foreign national, the foreign national is immediately qualified for permanent resident status.
The United States allows family-based immigration for the following classes of individuals:
1. Adult, unmarried sons and daughters of U.S. citizens;
2. Spouses, children, and unmarried adult sons and daughters of permanent residents;
3. Married sons and daughters of U.S. Citizens;
4. Brothers and sisters of U.S. Citizens.
The only way to immigrate through family is to qualify based on one of these relationships9. There is no immigration based on being the aunt, uncle, cousin, or grandparent of a U.S. Citizen.
When a U.S. Citizen or permanent resident wants to sponsor a relative, other than an "immediate relative," for an immigrant visa, that individual files a "preference petition" with the United States Citizenship and Immigration Services ("U.S.C.I.S.")10 Upon receipt of this petition, U.S.C.I.S. sends confirmation of receipt of the petition to the petitioner, and this receipt contains a "priority date" which is the date the petition was received by U.S.C.I.S. Each month, United States Department of State publishes a document called the "Visa Bulletin"11 which states the priority dates of petitions for which the individuals are now able to obtain immigrant visas. For example, in December of 2004, the priority date for unmarried adult sons and daughters of U.S. citizens is November 22, 2000. This means that individuals whose preference petitions were filed on or before November 22, 2000 are now eligible for immigrant visas.
Individuals for whom preference petitions have been filed also have "derivative beneficiaries."12 Derivative beneficiaries are the spouses and unmarried, minor children of the person for whom the preference petition was filed. They receive the same priority date and immigrate with the individual for whom the petition was originally filed, as long as the spousal or unmarried, minor child relationship continues to exist at the time the priority date becomes current.
Employment - Based Immigration
Employment-based immigration is the other main route to permanent resident status in the U.S. Like family-based immigration, employment-based immigration includes several different classifications, and in order to qualify, the individual must satisfy all of the requirements for the classification.13 Immigrant visas issued based on employment are sorted into "EB" categories, and there are five EB categories.
The first EB category, "EB 1," which includes persons of extraordinary ability14, outstanding professors and researchers15, and multinational executives and managers16. This classification allows the U.S. to attract the best and brightest individuals from all over the world and allows the U.S. to benefit from the exceptional talents of these individuals.
Extraordinary ability means individuals who can demonstrate they have received national or international acclaim for their accomplishments in the sciences, arts, education, business, or athletics. They must show that they are coming to the U.S. to continue to work in their field, and they must show that their work will be of substantial benefit to the U.S. Outstanding professors and researchers are accomplished scholars who must be recognized internationally as outstanding in a specific academic area. Multinational executives and managers are the top-level executives and managers from international companies who have served these companies overseas for at least one of the most recent three years prior to transferring to the U.S.
The second EB category, "EB 2," includes professionals holding advanced degrees17 and aliens of exceptional ability.18 The third EB category, "EB 3" includes skilled workers, professionals, and other workers19. For the most part, aliens seeking to immigrate in the EB 2 or EB 3 category, must obtain a labor certification20. Obtaining a labor certification means the individual must have a sponsoring employer who is willing to go through the labor certification process.
A labor certification is a document issued by the United States Department of Labor ("DOL") to an employer on behalf of the intended alien beneficiary if the DOL is convinced that there is no qualified U.S. worker who is ready, willing, and able to do the work for which the employer seeks to hire the foreign national. This is done through a labor market test which consists of a series of strategically placed help-wanted advertisements. The employer must conduct a recruitment campaign for the position for which they seek to hire the alien and then show the DOL that no U.S. worker with the necessary credentials was available for the position. The necessary credentials are those set forth by the employer based on the education and work experience necessary for an individual to perform the duties of the specific position.
The labor certification process is difficult, unpredictable, and time consuming. At present, new regulations which completely revise the process are pending with the DOL. The new regulations, called "PERM,"21 have been pending since May 6, 2002, but have yet to be implemented. The new system is designed to reduce the amount of time it takes to obtain a labor certification, but many immigration practitioners feel the new system will make labor certifications more difficult to obtain by reducing the employer’s ability to require specific credentials.
The fourth and fifth EB categories are somewhat unusual. The EB 4 category refers to "special immigrants," and is mainly comprised of certain religious workers, persons seeking reacquisition of citizenship or returning residents, Panama Canal Treaty employees, and select foreign medical school graduates.22 The EB 5 category is for foreign investors who invest between $500,000 and $1,000,000 in a new U.S. commercial enterprise which employs at least ten U.S. workers23.
Like the family-based immigrant visa categories, the employment-based categories also have statutory numerical limitations.24 However, at present, there are no waiting periods for employment-based visas. For an employment-based visa, the priority date is established by the filing of the petition, usually by the employer. This petition is similar to the preference petitions filed by U.S. citizens and permanent residents on behalf of family members. The date of filing establishes a priority date, and the Visa Bulletin set forth the priority dates currently eligible for immigrant visas. Although all employment-based categories are available at present, this is expected to change in the future.
Employment-based immigrant visa categories also allow for derivative beneficiaries.25 This means the spouse and children26 of the principal alien become eligible for permanent residence with the principal.
Obstacles to Obtaining Permanent Resident Status
Once the eligibility for permanent residence is established, the next question is whether the foreign national can obtain the status. Many individuals may qualify for status based on family or employment but find themselves without the ability to become a permanent resident because of prior violations of the INA. A determination of whether an alien has violated the INA in such a manner as to render himself unable to become a permanent resident requires an analysis of the individual’s history inside the U.S.
There are two methods of obtaining permanent resident status: adjustment of status and visa processing. Adjustment of status means making the application for permanent residence from inside the U.S., with the alien present in the U.S. while the application is processed. Visa processing means the alien departs the U.S. and returns to his/her home country to apply for permanent residence.
Adjustment of Status
Adjustment of status is usually the preferred method of obtaining permanent residence because the alien does not depart the U.S. An application for permanent residence is filed with the proper office of U.S.C.I.S., and the alien waits for a decision on the application. The application must be accompanied by evidence that there is a visa available to the alien. Some individuals must report to their local office of U.S.C.I.S. for an in-person interview while others receive approval of their application through the mail. Any application for adjustment of status includes a background check and security clearance.
Section 245 of the Immigration Act sets forth which aliens are eligible for adjustment of status. Not every foreign national in the U.S. is eligible for adjustment of status, and determining the eligibility requires an understanding of which category of immigrant visa (discussed in the first part of this article) is being used for the immigration. For all family-based classifications, other than immediate relative of U.S. citizen, the alien must be present in the U.S. subsequent to a lawful admission with a nonimmigrant visa. The alien must have complied with the terms of the nonimmigrant visa, including not ever accepting unauthorized employment, and not have overstayed. This can be difficult, given the amount of time some aliens must wait for their turn to immigrate due to the limits on numbers of immigrant visas.
Immediate relatives of U.S. citizens27 are granted special treatment under Section 245 of the INA in that they are allowed to adjust status despite status violations as long as they entered the U.S. legally.28 For example, a British national enters the U.S. in 2002 with a visitor visa. He overstays the visa and accepts illegal employment. Later, in 2004, he falls in love with and marries a U.S. citizen. Despite the fact that this individual has been out of status for two years and has worked illegally, he is still eligible for adjustment of status.
Individuals immigrating in an employment-based classification are given 180 days to be out of status or accept unauthorized employment before they are barred from adjustment of status.29
Prior to January 14, 1998, a provision of the Immigration Act, Section 245(i), allowed for adjustment of status by someone with prior immigration violations such as overstaying a visa or accepting unauthorized employment provided the alien paid a penalty of $1000 to forgive the immigration violation which prevented the alien from adjusting status under Section 245. This provision allowed aliens who entered the U.S. without inspection by immigration authorities to still adjust status if they otherwise became eligible based on any of the family or employment categories. Section 245(i) expired on January 14, 1998, leaving many aliens who otherwise qualified for permanent residence without the ability to receive the status because they violated the Immigration Act.
Section 245(i) has grandfathering provisions, and any alien who is the beneficiary of an immigrant visa petition or labor certification filed on or before January 14, 1998 can use Section 245(i) to adjust status and forgive immigration violations in the future. Additionally, in late 2000, Section 245(i) was revived by the LIFE Act30 which reinstated Section 245(i) until April 30, 2001. This revival of Section 245(i) also grandfathers any alien who is the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001. The derivative beneficiaries of anyone grandfathered by the LIFE Act are also grandfathered to use Section 245(i) in the future. The future use of the provision is not limited to the initial petition or labor certification. For example, if an alien is the beneficiary of a labor certification filed on or before April 30, 2001, that alien as well as his spouse and children may use Section 245(i) in the future to immigrate based on a different labor certification or family preference petition, in the event the initial labor certification fails or becomes invalid because of a change in circumstances surrounding the employment upon which the labor certification was based.
For individuals using the grandfathering provisions of Section 245(i) under the LIFE Act, they must also prove that they were physically present in the U.S. on December 21, 2000.31 The logic behind this provision is to prevent individuals from entering the U.S. without inspection in order to adjust status.
For many individuals, Section 245(i) is the only route to permanent residence because they cannot visa process due to their immigration violations (discussed in the next section). At present, there are many individuals inside the U.S., potentially eligible for an immigrant visa, who cannot adjust status because they entered the U.S. without inspection or overstayed a nonimmigrant visa. Unless such a person is grandfathered by a previous preference petition or labor certification filing made prior to April 30, 2001, they may be completely without the ability to obtain permanent residence, leaving them forever illegal, absent a change in the Immigration Act.
Visa processing, also called consular processing, is the other method of immigration where the foreign national receives the grant of permanent resident status outside the U.S., at a consulate, usually in the home country of the foreign national. This process is commenced by the foreign national’s family member or employer filing the initial case with U.S.C.I.S. inside the United States. Upon approval of the case, U.S.C.I.S. forwards the case to the U.S. State Department at the appropriate consulate. The alien is assigned an appointment with the consulate where he/she is interviewed, and a security check is completed. If the consulate is satisfied that the alien is eligible for the immigrant visa sought and has no issues rendering him or her inadmissible to the U.S., the alien will be granted permanent residence which allows him to enter the U.S. and reside here permanently.
Visa processing can be used in certain situations where an alien is present in the U.S. but cannot adjust status because of a status violation. As long as the status violation has not rendered the alien inadmissible, he can depart the U.S. and return to his/her home country to visa process.
Issues rendering the alien inadmissible must be analyzed before the alien appears at the consulate. "Inadmissible" is the term used by the INA to describe someone who by law cannot legally enter the U.S., and the grounds of inadmissibility are set forth at Section 212 of the INA. Examples of grounds of inadmissibility include criminal convictions, inability to financially provide for one’s own support, and employment-based applicants possessing no labor certification.
One of the most common situations in which an alien is inadmissible and without the ability to legally enter the U.S. is when the alien has been in the U.S. previously without authorization for over 180 days.32 "Unlawful presence" is the term used by the INA to describe the time in which an alien is present in the U.S. past the period of lawful admission. For example, an alien enters the U.S. with a visitor visa, valid until January 1, 2004. On January 2, 2004, that alien has accrued one day of unlawful presence.
After an alien has been unlawfully present for 180 days, he/she is inadmissible to the U.S. for three years. After an alien has been unlawfully present for one year, he/she is inadmissible to the U.S. for ten years.33 These grounds of inadmissibility, commonly referred to as the "three- and ten-year time bars," are problematic for an alien ineligible for adjustment of status. Because the alien is in the U.S. illegally, he/she is barred from adjustment of status. If the time period during which the alien was unlawfully present in the U.S. exceeds one year, that alien cannot return to his or her home country for visa processing, unless he/she is willing to wait ten years outside the U.S. to return.
For some aliens subject to these time bars, there is a waiver available which, if granted, allows the alien to return to the U.S. prior to the three or ten years. If the alien is the spouse, son, or daughter or a U.S. citizen or permanent resident and can prove that his/her absence from the U.S. will result in extreme hardship to the U.S. citizen or permanent resident relative, the alien will receive a waiver of the ground of inadmissibility and can return to the U.S. without waiting the three or ten years.34 This waiver is difficult to obtain and requires the alien to depart the U.S. without any guarantee he/she will return as the waiver must be adjudicated at the U.S. consulate outside the U.S. Making the situation more uncertain is the fact that there is no judicial review of a waiver denial. The decision to grant or deny a waiver rests solely with the U.S. State Department.35
In order to even consider the option of visa processing with this waiver, the alien must have the right relationship to a U.S. citizen or permanent resident. Many foreign nationals seeking to immigrate based on eligibility in one of the employment-based classifications do not have the required relative as the entire family is immigrating together. These aliens, if inside the U.S. without authorization for over 180 days, cannot visa process at all because they are ineligible for the waiver. They also cannot adjust status because they are not in valid immigration status.
In conclusion, the obstacles to obtaining permanent residence may be impossible for some foreign nationals to overcome, even if the alien is potentially eligible based on family or employment. Past immigration violations cannot be undone, and the future of an unauthorized alien is always uncertain, especially if the INA provides that alien with no route to permanent residence. There are many foreign nationals in this situation, and most of them chose to remain here in their illegal status rather than return to their homelands. Attorneys representing these individuals in any forum need to understand that they have a client who may never be able to become a legal resident of the U.S., absent a change in the INA.
1 The Immigration and Nationality Act, commonly referred to as the "INA" begins at 8 U.S.C. 1101.
2 INA Sec. 203(c)
3 INA Sec. 208
4 INA Sec. 240A
5 INA Sec. 201
6 INA Sec. 201(b)(2)(A)(i)
7 "Child" is defined at INA Sec.101(b)(1) and the "Child Status Protection Act," passed Aug. 6, 2002, Pub. L. 107-208
8 INA Sec. 201(b)(2)(A)(i)
9 INA Sec. 203(a)
10 United States Citizenship and Immigration Services or U.S.C.I.S. is the name of the federal agency with authority over immigration. The former Immigration and Naturalization Service or I.N.S. ceased to exist as of March 1, 2003, when the immigration function of the federal government was removed from the U.S. Department of Justice and placed into the newly-formed Department of Homeland Security.
12 INA Sec. 203(d)
13 INA Sec. 203(b)
14 INA Sec. 203(b)(1)(A)
15 INA Sec. 203(b)(1)(B)
16 INA Sec. 203(b)(1)(C)
17 8 C.F.R.204.5(k)(2)
18 8 C.F.R. 204.5(k)(3)(ii)
19 INA Sec. 203(b)(3)
20 INA Sec. 212(a)(5)
21 "PERM" stands for Program Electronic Review Management system, and the regulations, not yet implemented, can be found at 67 Fed. Reg. 30465-521 (May 6, 2002).
22 INA Sec. 101(a)(27)
23 INA Sec. 203(b)(5)
24 INA Sec. 201(d)
25 INA Sec. 203(d)
26 "Child" is defined at INA Sec.101(b)(1) and the "Child Status Protection Act," passed Aug. 6, 2002, Pub. L. 107-208
27 INA Sec. 201(b)(2)(A)(i)
28 INA Sec. 245(c)
29 INA Sec. 245(k)
30 Legal Immigration and Family Equity Act
31 8 C.F.R. 245.10(n)
32 INA Sec. 212(a)(9)(B)(i)(I)
33 INA Sec. 212(a)(9)(B)(i)(II)
34 INA Sec. 212(a)(9)(B)(v)
35 INA Sec. 212(a)(9)(B)(v)
Mary L. Field is a solo practitioner in Oak Brook, and she concentrates her practice in the area of immigration law. She has a J.D. from Loyola University School of Law and a Bachelor’s Degree in Public Accounting from Loyola University School of Business Administration.