Green Cards for Permanent Residents

Green CardA lawful permanent resident is someone who has been granted authorization to live and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card, commonly called a “green card.”

Immigration law provides a number of paths to permanent residency. Most individuals are sponsored by a family member or employer in the United States. Others may become permanent residents through asylee or refugee status or other humanitarian programs. In some cases, you may be eligible to file for yourself.

The steps toward becoming a permanent resident are different for each category and will depend on whether you are currently living inside or outside the United States. There are two broad categories of green cards: family-based and employment-based.

Family-Based Green Cards

Family members of certain U.S. citizens and lawful permanent residents (LPRs) are eligible for their own lawful permanent resident (green card) status. These family members fall into three general categories: Immediate Relatives, Preference Relatives, and Accompanying Relatives.

Immediate Relatives. Immediate relatives of U.S. citizens may immigrate to the U.S. in unlimited numbers. They are not controlled by any annual limit or quota. These people qualify as Immediate Relatives:

  • Spouses of U.S. citizens. This includes widows and widowers of U.S. citizens if they were married to the citizen for at least two years and are applying for a green card within two years of the citizen’s death.
  • Unmarried people under the age of 21 who have at least one U.S. citizen parent.
  • Parents of U.S. citizens, if the U.S. citizen child is age 21 or older.
  • Stepparents and stepchildren qualify as immediate relatives if the marriage creating the parent/child relationship took place before the child’s 18th birthday. Parents and children related through adoption may, in some cases, qualify as immediate relatives.

Preference Relatives. Certain other family members of U.S. citizens and green card holders are also eligible for permanent residence status. However, only a limited number of green cards are available to these Preference Relative applicants, based on their place in the preference categories outlined below:

  • Family First Preference. Unmarried people, any age, who have at least one U.S. citizen parent.
  • Family Second Preference. 2A. Spouses of green card holders and unmarried children under age 21. 2B. Unmarried sons and daughters (who are over age 21) of green card holders.
  • Family Third Preference. Married people, of any age, who have at least one U.S. citizen parent.
  • Family Fourth Preference. Sisters and brothers of U.S. citizens where the citizen is over 21 years old.

Family members in the Preference Relatives categories may have to wait several years for their green cards. These waiting times can be tracked using the monthly Visa Bulletin published by the U.S. State Department.

Accompanying Relatives. If you are getting a green card as a Preference Relative and you are married or have unmarried children below the age of 21, your spouse and children can get green cards as accompanying relatives.

The Application Process. In most cases, the first step in a family member’s acquiring a green card is submission to the U.S. Citizenship and Immigration Services (USCIS) of a Petition for Alien Relative (I-130). After USCIS approves the Petition, and when a green card is available, the immigrant applies for permanent residence. If the immigrant applies for permanent residence in the United States, it is called “adjustment of status” processing, and is handled through the local USCIS District Office. “Consular processing,” by contrast, is where the immigrant applies through a U.S. consulate abroad. Note: where an Immediate Relative is already present in the United States, he/she can apply for adjustment of status at the same time his/her relative submits the Petition for Alien Relative.

Upon approval of the application for permanent residence, the relative will be granted permanent residence and issued a green card.

Employment-Based Green Cards

The process for obtaining an employment-based green card generally involves an employer sponsor and includes three steps: (1) the labor certification; (2) the visa petition; and (3) the application for permanent residence.

Step 1: Labor Certification Application. A “labor certification” is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill the job (given the job’s minimum requirements), and that the immigrant employee will be paid the “prevailing wage.” One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. It is extremely important that the labor certification application correctly describes the minimum requirements for the job as well as explains the reasons why these requirements are necessary.

In 2005, the Department of Labor drastically changed the way it processes labor certification cases. The primary difference between the new process (referred to as “PERM”) and the old process is how recruitment-related documentation is handled. Previously, supporting documentation such as newspaper ads and other recruitment efforts, justification of the job requirements, prevailing wage determinations, etc., were submitted when the labor certification application was filed. Under PERM, while the same documentation must be prepared or assembled, it is kept by the employer and only submitted if and when requested by the Department of Labor. The employer is required to retain this documentation for a period of five years.

Under PERM, occupations are classified as “professional” or “nonprofessional” and each classification has different recruitment requirements. Both classifications require two Sunday newspaper ads and a 30-day job posting with the State Workforce Agency (SWA). For professional positions, the employer must also comply with at least three out of 10 listed steps: (1) job fairs; (2) employer’s website; (3) job search website other than the employer’s; (4) on-campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) employee referral program with incentives; (8) campus placement offices; (9) local and ethnic newspapers; and (10) radio or television advertisements.

Applying for a labor certification does not bind the employer legally. The employer remains free to dismiss the employee or take other personnel action with regard to the employee, as it would with regard to any other employee. Conversely, the application does not bind the employee to the employer either. Also, the employer may withdraw the labor certification application at any time.

Step 2: Visa Petition. Upon approval of the labor certification, the employer must submit a visa petition to U.S. Citizenship and Immigration Services (USCIS). The purpose of the visa petition is to prove to USCIS that: (1) the job has been certified by the Department of Labor; (2) the immigrant employee meets all of the requirements listed on the labor certification; and (3) the employer has sufficient resources to pay the employee’s salary. This step will also establish the immigrant preference classification. The most common classifications are “second preference” (normally a person with at least a master’s level education) or “third preference” (a person with less than a master’s level education). In some cases, the preference for which the immigrant employee qualifies may determine how long it will take to obtain legal permanent residence status. At times, it takes a person with a third preference approval longer to immigrate than a person with a second preference approval.

By the time the employer files the visa petition, the employee must decide whether he/she will apply for permanent residence here in the United States or at an American consulate abroad. Normally, the application for permanent residence will be processed here in the United States. There are, however, reasons that may dictate processing through an American consulate in the employee’s home country; e.g., the need for frequent travel abroad, local USCIS time delays, or ineligibility for processing in the United States.

Step 3: Application for Permanent Residence. As the last phase in the process, the employee applies for permanent residence. If the employee applies for permanent residence in the United States, it is called “adjustment of status” processing, and is handled through the local USCIS District Office. “Consular processing,” by contrast, is where the employee applies for an immigrant visa through a U.S. consulate abroad.

In general, employment-based adjustment of status cases are not subject to interviews with the local USCIS District Office. On the other hand, individuals who undergo consular processing of employment-based cases are always required to attend an interview.

Upon approval of the application for permanent residence, the employee will be granted permanent residence and issued a green card.

Our Immigration Attorneys

Livesay & Myers, P.C. has a team of experienced immigration attorneys in Northern Virginia, representing clients in Virginia, D.C., Maryland and all across the United States. Be sure to read our client reviews, then examine the profiles of each of our immigration lawyers to find the one who is the best fit for you. Then, contact us to schedule your consultation with one of our experienced attorneys today—in person, over the telephone, or via webcam on Skype or Google Hangouts.

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