Mitchell C. Zwaik and Associates P.C. -- Long Island Immigration Lawyer

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5014 Express Drive So
Ronkonkoma, NY 11779
Tel: 631-588-4040
Fax: 631-588-7175
mczwaik@zwaik.com

30-89 42nd Street
Astoria, NY 11103
Tel: 718-777-1110
Fax: 718-932-7188

OBTAINING PERMANENT RESIDENCE

Overview of the Eligibility Requirements

Noncitizens who come to the United States are generally permitted to stay for a limited period of time. If you wish to remain indefinitely they must apply to become a Lawful Permanent Resident (LPR.) LPR's are given a plastic identity card commonly called a "green card" (although these cards have not been green in color for about fifty years!) The process by which you can become a permanent resident is often difficult and time consuming. Congress has created a complex, multi-stage process to determine who can become a permanent resident and how many persons can be approved for permanent residency each year.

Preference System

Generally applicants for permanent residence must be sponsored by a close family member or an employer. Family based sponsors must be a U.S. citizen spouse, parent, adult child or sibling or a permanent resident spouse or parent. Your relative will need to provide documentary evidence of your relationship, including birth and/or marriage records, divorce records, and death certificate when applicable.

An employer sponsor will often need to show that it requires your services because he or she has been unable to find a U.S. worker who is ready, willing and able to perform the work at a wage which the Labor Department believes is the "prevailing wage." The employer will need to prove to the U.S. Department of Labor that it has made a good faith effort to find a U.S. worker. If the labor Department agrees, it will issue a "labor certification." This certification is issued only after a complicated, tightly monitored recruitment program in which the employer tries to locate a U.S. worker under procedures established by the Labor Department. Not all employment based applicants need to go through this labor certification process, however. Some, international executives and other individuals have exceptional ability or special skills that are required for America's national interest and may be able to apply for immigration status without the labor certification.

The sponsorship described above is only the first step in becoming a permanent resident. Congress has established a priority system to determine how and when sponsored applicants will receive permanent residency. This priority system is based on categories of sponsorship and each category is allocated a specific number of green card visas. If that category receives more applications than it can issue during any fiscal year, it creates backlogs or waiting lists for permanent visas. Unless your sponsor is a U.S. citizen spouse or adult son or daughter, the process often results in long waiting periods that can stretch for more than 10 years. The priority system categories are as follows:

Family Based

First Preference- Adult, unmarried children of U.S. citizens
Second Preference
- 2A- Spouses and unmarried children under 21 years oldof permanent residents
Third Preference-Married children of U.S. citizens
Fourth Preference-Brothers and sisters of U.S. citizens

Employment Based

First Preference: Multinational Executives
Second Preference: Professionals
Third Preference: Professionals and Skilled Workers
Fourth Preference- Other (unskilled) workers

There are several important things to note about this preference system. The first is that spouses, children and parents of U.S. citizens are called "immediate relatives" and are exempt from the preference system. Secondly, certain applicants can "self-petition" and do not need a sponsor. These self petitioners include abused spouses and children of U.S. citizens and certain "priority workers" with extraordinary ability and persons with special job skills that are determined to be in the National Interest.

There are other methods by which permanent residency can be obtained. These include:

Selection in the Diversity Lottery
Approval of an asylum or refugee application followed by a year of residency in the United States
Self-petition as a battered spouse or child
Approval of a Cancellation (or "10 year case") in deportation proceedings
Qualifying under a special program approved by Congress, such as Registry, NACARA, or a CSS/LULAC Life Adjustment

Final Processing

After you have been approved for sponsorship and your visa number becomes current, you can begin final processing for your green card. This final step usually requires that the applicant appear before a consular officer at a consulate abroad or a Citizenship & Immigration Service (CIS) officer in the U.S for final processing. At the time of final processing, the officer will inquire into the applicant's criminal record, prior U.S. immigration history, possible ties to terrorist or Communist organizations, drug or alcohol addictions, and serious health problems such as tuberculosis or HIV. The applicant will generally need to provide financial information from his or her sponsor (or joint sponsor) to show that they can be adequately supported in the U.S.

This final processing step can become a nightmare for many. If you have prior immigration problems that include prior deportation proceedings, entries with fraudulent documents, and periods of unlawful presence in the U.S. you may be denied permanent visas despite waiting many years under the preference system. Perhaps more disturbing is that changes may have occurred since the application was originally filed that make you currently ineligible, such as when you "age out" by turning 21 or if you are a second preference applicant who marries while awaiting final adjudication of the visa.

Adjustment of Status vs. Consular Processing

One of the key decisions you must make in applying for permanent residency is whether to undergo final processing in the United States, under a procedure known as "adjustment of status" or at the U.S. consulate in your home country. Sometimes the choice is simple. If you are living abroad and have been unable to obtain a nonimmigrant visa to come to the United States, consular processing may be the only option. Similarly, you may have to apply for adjustment of status in the U.S. if you are already here, are eligible to adjust but would face a ten year bar to returning to the U.S. if you returned home and interviewed before the consulate. Other times, the choice is more difficult. Some general rules to keep in mind:

Adjustment of status is generally only an option if:

You entered the U.S. legally AND are currently in legal status in the U.S. when the visa number becomes available OR
You entered the U.S. legally AND are the spouse, child under 21, or parent of an adult U.S. citizen OR
You are under a special exception to the general rule, such as:
- Grandfathered" under Section 245(i) because a preference petition or application
  for labor certification was filed on their behalf or for a spouse or parent or before
  April 30, 2001
- Was granted asylum or refugee status
- Qualifies under another special program such as NACARA, Cancellation, or Registry

Putting It All Together

An experienced immigration attorney will often work with the applicant to keep him or her in legal temporary, nonimmigrant status while working to obtain permanent residency for you when the visa becomes available.

Frequently Asked Questions (FAQs)

Q. What is the procedure for family based petitions?
A. Ordinarily, the sponsoring citizen or permanent resident completes an application form (I-130) which is filed with the designated USCIS regional office along with the appropriate filing fee and supporting documents that prove the relationship (such as copies of birth or marriage certificates.) The sponsor should receive a receipt from USCIS with a receipt number, filing date, preference status requested and the amount of the fee that was paid. Once the application is adjudicated, a copy of the decision is forwarded to the sponsor (and his attorney) and the original approved application is sent to the National Visa Center in New Hampshire where it will stay until the visa is available. At that time, the NVC will notify the sponsor (and the attorney) and request additional documentation including financial information from the sponsor. When the file is finally complete, it will be forwarded to the U.S. consulate in the applicant's home country for a final visa interview.

Q. Is the process different if the sponsored applicant is in the U.S.?
A. Maybe. If the sponsored family member is eligible for adjustment of status, all applications and supporting documentation are filed together at the office designated by USCIS and final processing will be conducted at the local office of USCIS nearest the beneficiary's home. Processing times will differ around the country but are currently running less than 6 months.

Q. I have heard that the green card interviews in marriage cases can be very intimidating with officers asking very embarrassing questions. Is this true?
A. Many of the "horror stories" about marriage based interviews are exaggerated but examining officers whether in the U.S. or at consulates abroad are trained to be very sensitive to marriage fraud cases. Couples should prepare well in advance with documentation showing their ongoing relationship such as photographs, phone bills, leases, insurance documents, email or other correspondence (if one spouse is abroad) hotel bills, airplane tickets. They should also be prepared to answer fairly detailed questions about each other, including everything from each other's date of birth to how they take their coffee or tea.

Q. Why are some green cards based on marriages issued for only 2 years?
A. As part of the effort to cut down on marriage fraud cases, a foreign national who obtains residency through marriage to a U.S. citizen or permanent resident will be classified as a Conditional Resident if the parties are married less than two years at the time the application is approved. A Conditional Resident will receive a green card that is valid for 2 years. In the ninety days prior to the expiration date of the card, the Conditional Resident must file an additional application with USCIS (form I-751) with documentation to show the couple is still living together.

Q. I have been sponsored by my Dad as an unmarried son of a permanent resident [Family Based Second Preference 2B.] What will happen if I marry before I get my green card?
A. Your Dad's application for you will be automatically revoked as of the date of the original filing if you marry at any time before you are approved for adjustment of status or are approved at the consulate and depart for the U.S. This is not true if your Dad becomes a U.S. citizen before you marry. In that case you will be automatically switched to the Family Based First Preference as the adult child of a U.S. citizen. Then when you marry, you will be automatically switched to the Family Based Fourth Preference as the married son or daughter of a U.S. citizen. The point here is that your marriage (or divorce) may have a significant impact on your visa application. You should check with an immigration attorney first to know the impact of such decisions.

Q. I am a United States citizen. I am told that I can bring my parents to the U.S. in about a year but my 10-year old brother will not be able to enter with them. Is this true?
A. Yes. This is one of the worst inequities in U.S. immigration law but it has been a part of the law for many years. Simply stated, immediate relatives (spouses, parents and children under 21 of a U.S. citizen) cannot bring derivatives beneficiaries. This means that the person being sponsored cannot include anyone other than themselves. So in your example, you must file separate applications for your Mom and Dad and they cannot include your brother. You would have to file for him separately as a Family Based Fourth Preference. The problem here is that the waiting list for Fourth Preference is over ten years. The good news is that preference immigrants (unlike immediate relatives) do include derivative beneficiaries. So by the time your brother is eligible to come to the U.S., he will be able to bring his wife and children as derivative beneficiaries.

Q. Many categories are limited to children under the age of 21. What happens if they turn 21 while waiting for a visa to become available?
A. It depends on the individual facts of your case. Congress has set up a very complicated formula that allows certain applications to go forward even if the beneficiary turns 21. Other applicants are just out of luck. You should speak to an immigration attorney directly to get an analysis of your case.

Q. Does processing of Employment Based applications work differently from Family Based applications?
A. In many respects they are actually very similar. An application is filed by the sponsor (or self-petitioner) with USCIS. If approved, the application is forwarded to the National Visa Center for further processing before being forwarded to the appropriate U.S. consulate abroad for final visa processing. If the immigrant is in the U.S. and the visa number is currently available, the applicant can file for Adjustment of Status. The biggest difference, of course, is that the immigrant usually needs an employer sponsor and the employer usually must first obtain a labor certification before applying to USCIS.

Q. How does the labor certification process work?
A. The concept behind the labor certification process is that the Employer should not be able to sponsor a foreign national for permanent residence if there is a U.S. worker (citizen or permanent resident) who is willing and able to perform the job at the prevailing wage. Therefore in order to sponsor a foreign worker, the employer must first undertake a recruitment effort under very detailed rules established by the U.S. Department of Labor to show it has first tried to find a U.S. worker for the job. The recruitment effort requires, at a minimum some form of print advertisement and often internet and other recruitment efforts as well. An application is then filed with the U.S. Department of Labor.

Q. What is PERM?
A. Applications for labor certification are currently filed electronically and initially reviewed by computer. In most cases, the computer actually adjudicates the case. This processing is called PERM (Program Electronic Review Management.) Until March of 2005, these applications were filed on paper applications and reviewed manually by the Department of Labor in the individual state where the employee would be working. The PERM processing has allowed most applications to be adjudicated in months, rather than years, but it has created other problems, including long backlogs for visas. It can also be a little frustrating arguing with a computer if the case is delayed or denied.

Q. What kinds of jobs are suitable for labor certification?
A. Virtually any job can be the suitable for a labor certification, as long as there is a shortage of U.S. workers for the position. A Sushi chef in rural Idaho will have an easier time than an inexperience accountant in New York City.

Q. My brother owns a gas station. Can he sponsor me as a mechanic for a green card?
A. Probably not. The U.S. Department of Labor will insist on an honest recruitment effort and will no doubt be suspicious of your brother's willingness to hire another U.S. worker for the position you are seeking.

Q. Do I have to be presently working for the employer who sponsors me?
A. No. The only requirement is that the employer has a job position open and available for you from the time the labor certification is filed until your green card application is finally approved or until 180 days after you file for Adjustment of Status, whichever sooner occurs.

Q. I have been sponsored for a green card by my employer but I am having problems at work. What will happen to my case if I leave my job or get terminated?
A. If the labor certification has not yet been approved, the employer can withdraw the application and you will have to start from the beginning with another employer. If the labor certification has been approved and the employer has filed an immigrant worker petition with USCIS (form I-140), you can change employers 180 days after the filing of the application for Adjustment of Status as long as you find alternative employment in the same or similar occupation. In that event, the employer can no longer withdraw the application and you are "safe." The problem with this "solution" is that visas are backlogged in many categories. If it takes five years before you can apply for Adjustment of Status, you are dependent on that employer for at least five years.

Q. Can I quit my job after I get my green card?
A. Yes. But be careful. Although there is no specific time limit on how long you must continue to work for the employer who sponsored you, USCIS does require that the application be in good faith. If you quit the job two days after you get the green card, it will likely result in USCIS determining that the application was not in good faith. Most attorneys will recommend that you stay on the job for about six months and if you do leave the job that you stay in the same occupation for six months to a year.

Q. I have seen the State Department waiting lists and some countries have longer waiting lists than others. Why?
A. U.S. immigration law limits the number of permanent visas that can be issued to citizens of any one country to 7% of the total permanent visas issued (or 26,120 for fiscal 2007.) This is to prevent citizens of any one country from monopolizing the visas. As a result, citizens from Mexico, India, China, and the Philippines, which have the greatest number of applicants, face longer backlogs than citizens from other countries.

Q. My visa number is available but I have a prior deportation order. Will this be a problem?
A. Probably. A deportation order bars a foreign national from receiving immigration benefits in the United States for ten years from the date of departure. If you are within that ten year period you will have to reopen the deportation order if you are in the United States or obtain a waiver if you are consular processing.

Q. I understand that my application for permanent residency will take many years. Will I be allowed to live in the U.S. until my green card application is approved?
A. As a rule, applicants for permanent residency are required to remain in their home country until the immigrant visa is available. A skilled immigration lawyer may be able to help you obtain legal nonimmigrant status and remain legally in the U.S. in a nonimmigrant status until your permanent visa is available. This often requires a great deal of planning and a lot of luck. The types of nonimmigrant visas that are available is often very limited and a bad decision can result in you finding yourself "out of status" in the U.S. and subject to deportation. We discuss nonimmigrant visas under a separate topic.