As discussed in the last chapter, there are several categories through which people with certain job skills (or family relationship) can petition (or be petitioned through their perspective employer) to obtain a green card:

1. Immigration through a Family Member

2. Immigration through Employment

3. Immigration through Investment

4. Immigration through Diversity Lottery

Conditional Permanent Residency

If an alien obtained permanent residency through marriage to a U.S. citizen or through an EB-5 investment visa (Form I-526) http://uscis.gov/graphics/formsfee/forms/i-526.htm, permanent residency may be considered conditional. For the former, this would apply if the parties were married for less than two years when permanent residency was granted. To avoid having the permanent residency expire in two years, one should apply to have the condition removed. That process involves submitting a Petition to Remove Conditions on Permanent Residency (Form I-751) http://uscis.gov/graphics/formsfee/forms/i-751.htm within the 90 day period preceding the expiration date.

In order to become a lawful permanent resident, eligible investors must file Form I-829 http://uscis.gov/graphics/formsfee/forms/i-829.htm, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the U.S. as a conditional resident. See 8 U.S.C. § 1153(b)(5) and 8 C.F.R. § 204.6.

Rights and Responsibilities

As a permanent resident, one is entitled to live permanently in the U.S. and to work for all but a few types of employers. Basically, a permanent resident will have most of the same rights as Americans. Yet, there are a few exceptions to the rights extended to American citizens:

• Except for a few local elections, a permanent resident will not be permitted to vote in most elections (attempting to vote in an election restricted to U.S. citizens could get the person deported).
• A permanent resident can be deported if the person commits a crime. Generally, only felonies will subject the person to deportation, but certain serious misdemeanors can also have the same effect.

Like Americans, permanent residents are expected to pay income taxes. Specifically, a permanent resident is taxed on worldwide income rather than just U.S. source income. In addition, if the permanent resident is a male between the ages of 18 and 25, the person is required to register with the Selective Service (i.e., the draft). Failure to register for the draft is a ground for denying naturalization, in addition to the other legal penalties that apply to anyone failing to register. Now, one can register online at: http://www.sss.gov/. This policy also applies to children of permanent residents.

As discussed, as a permanent resident, the person will no longer need a separate visa to enter the U.S. in most circumstances. Rather, the person will be able to enter the U.S. with a passport and an unexpired I-551 stamp (temporary evidence of lawful admission for permanent residence) in the passport or a passport and the green card. The I-551 stamp in a passport has the same legal meaning as the actual I-551 permanent residence card. The only difference is that the stamp must be renewed after a year and the card must be renewed after two years if it is conditional or ten years if it is not conditional.

State Department Visa Bulletin

The U.S. Department of State (“DOS”), through the Bureau of Consular Affairs, publishes the monthly “Visa Bulletin.” The Visa Bulletin lists the availability of “immigrant numbers” during the month of publication, and is intended as a guide for consular officials, attorneys and others who would like to know if visas are immediately available for individuals in particular categories. It is accessible at: at http://travel.state.gov/visa_bulletin.html.

Section 201 of the INA establishes limits on family and employment based immigration. There is no limit on the number of spouses and minor children of U.S. citizens, but there is an annual limit on the other categories of family based immigrants of just under 500,000. The limit for employment-based immigration is 140,000. Section 202 of the INA states that the total number of visas that may be issued (“charged”) to specific countries may not exceed 7 percent of the total number of family- or employment-based immigration on a worldwide basis. It is this limit on the number of visas that may be received by a country’s nationals that creates the backlogs for some countries.

The Visa Bulletin indicates the availability of visas for family- and employment-based preference categories, and separately lists countries that may have exceeded their allocation of visas. Countries that have exceeded their allocation of visas are “oversubscribed” and individuals from those countries must wait before a visa can be issued.

As a reminder, family based immigration is divided into four preference categories and “immediate relatives” of U.S. citizens. Immediate relatives of U.S. citizens are parents, children under 21 and spouses. This category is not subject to any limits, and visas are always immediately available to those within it. As a reminder, the preference categories are:

• First preference : unmarried (whether single, widowed, or divorced) children over 21 of U.S. citizens;
• Second preference : 2A—for spouses and unmarried children under 21 of permanent residents; 2B—for unmarried children over 21 of permanent residents;
• Third preference : for married children (any age) of U.S. citizens;
• Fourth preference : for brothers and sisters of U.S. citizens (over 21).

As illustrated in Chart I, the backlog for the various categories of the immigrants from Mexico and the Philippines can run as long as 22 years.

Chart I

Visa Bulletin

Family-based Immigrant Numbers

June 2004

*NOTE : For June, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUN97; 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUN97 and earlier than 08DEC99. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

A priority date is assigned when an individual, who is qualified for the category of immigration she requests, files a complete application (Form I-130) http://uscis.gov/graphics/formsfee/forms/i-130.htm. Individuals whose priority date is after the one listed in the tables must wait until their priority date is included in a table published in the monthly Visa Bulletin. Contrary to what one might believe, priority dates do not necessarily advance one month at a time, and depend upon the number of applications filed around the time of an individual’s application. A surge in applications for a particular chargeability area at the time of filing could lead to priority dates advancing only one week per month. Similarly, a sharp drop in applications for a particular chargeability area when the application was filed might result in priority dates that advance two months at a time.

Example: Roy is a citizen of the Philippines. He has a brother who lives in Oklahoma. His brother became a naturalized U.S. citizen three years ago. If Roy wants to seek permanent residency based on his relationship with his brother, it will take about 22 years before he can get an immigrant number. According to the priority dates in Chart I, the priority date for citizens of the Philippines in the 4th family preference is March 22, 1982.

As a reminder, employment-based immigration is divided into five preference categories (Form I-140) http://uscis.gov/graphics/formsfee/forms/i-140.htm:

• First preference category (EB-1) : for “priority workers” such as outstanding professors and researchers, aliens of extraordinary ability and multinational executives and managers;
• Second preference category (EB-2) : for members of the professions holding advanced (post graduate) degrees, aliens of exceptional ability, and others whose immigration is in the “national interest”;
• Third preference category (EB-3) : for skilled workers, professionals and other workers;
• Fourth preference category (EB-4) : “special immigrants” and includes certain U.S. Government employees, religious workers, foreign medical graduates, employees of international organizations, juveniles, members of the U.S. Armed Forces, and limited number of other individuals; and
• Fifth preference category (EB-5) : for “entrepreneurs,” commonly known as immigrant investor visas. The investment typically required is $1,000,000, and requires the creation of at least 10 new full-time jobs in the U.S. for individuals other than the investor's spouse or children.

Unlike the family-based immigrant visas, priority dates for employment-based immigrant visas are current—designated as “C” in Chart II.

Chart II

Visa Bulletin

Employment-based Immigrant Numbers

June 2004

In addition, DOS has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated in the middle of each month with information on cut-off dates for the following month.

Example: Stacy is a citizen of Greece. Her family made a lot of money in the retail business in Europe. She would like to expand her family’s operations to the U.S. She anticipates that it would cost $10 million to open stores in San Francisco and New York City. She anticipates employing over 50 U.S. citizens. Given her plans, Stacy would likely apply for an EB-5 investor visa. According to the Visa Bulletin in Chart II, there is no backlog of visas for this category. Yet, the visa would grant conditional permanent residency status during the first two years. She can apply to have that removed 90 days before her second anniversary in the U.S.