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PERMANENT (IMMIGRANT) VISAS

Aliens who seek to enter the US in order to remain permanently are called “intending immigrants.” Immigrant visas are generally more difficult to obtain and require more lengthy application procedures than temporary visas.

A permanent resident receives a “green card” (also called a “resident alien card” or “alien registration card”). Permanent residency status is governed by a selection system involving aliens who must qualify within a numerical limitation (or quota) system and those aliens who are exempt from such quota limitations.

Those persons who may qualify for permanent visas without regard to the quota system include immediate relatives of US citizens (see “family-sponsored” immigrants below), persons classified as special immigrants, refugees, and asylees.

All other immigrant aliens must qualify according to the quota system. There is a limitation of persons from any single foreign country in each fiscal year (approximately 25,000 per country).

The total number of permanent resident visas available annually is now allocated among the following three categories: employment-based immigrants, family-sponsored immigrants, and “diversity” immigrants (those from under-represented countries).

Employment-Based Immigrants

Permanent “employment-based” visas are allocated annually according to a “preference” system consisting of five categories (EB-1 through EB-5). This is called a “preference” system because the annual numerical allotment of permanent visas in certain categories may be increased by the number of visas (if any) not claimed by certain of the other categories.

The five categories are as follows:

1. “Priority” Workers

There are three groups of “priority” workers, all of whom are equally entitled to available visas within this category and none of whom are required to satisfy a “labour certification” requirement.

Extraordinary Ability: Aliens who can demonstrate sustained national or international acclaim in the sciences, arts, education, business, or athletics.

Outstanding Professors/Researchers: Includes outstanding professors and researchers who can prove international recognition in a specific academic field and a minimum of three years teaching or research in the field along with a job offer in a tenured teaching or research position at a university or private employer.

Multi-National Executives/Managers: For executives and managers of international employers who are coming to a US managerial or executive position after having been employed for at least one of the preceding three years by the foreign affiliate, parent, subsidiary, or branch of the US employer.

2. Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability in the Sciences, Arts, Business, or Professions

This category includes two groups of aliens, all of whom must obtain a labour certification (unless the job is “pre-certified”) and a job offer by a US employer (except if a waiver of the job offer and labour certification is granted when it is deemed to be in the national interest to do so, such as the declaration of an interested US governmental agency).

First, an alien must demonstrate possession of an advanced degree or a bachelor's degree plus at least five years of progressive experience in a professional field. Aliens in the second group must demonstrate exceptional ability by more than mere possession of a university degree or professional license.

The second group (defined as “J” special immigrants) includes alien juveniles under court supervision and with respect to whom a determination has been made that it is not in their best interests to return to their home country.

3. Investor Immigrants

An alien, establishing a new commercial enterprise in the US, who has invested or is actively in the process of investing at least $1 million after October 1, 1991 may qualify for a permanent visa in this category. No labour certification is required. The enterprise must benefit the US economy and provide full-time employment for at least 10 US citizens or permanent immigrant workers. The required investment may be $500,000 if the enterprise is located in an area identified as a low employment area. Visas issued to investors will be issued on a conditional basis during a two year “test” period. Only 10,000 visas per year may be given to investor immigrants.

4. Family-Based Immigrants

A “preference” system of four categories governs the allocation of permanent visas to aliens based on family relationships. The four categories are as follows:

1) First Preference – unmarried adult children of US citizens

Immediate relatives of US citizens (spouses and minor children and parents of US citizens over 21 years of age) are admissible in unlimited numbers. The Legal Immigration and Family Unity Act allows spouses and minor children of a US citizen with a currently pending green card petition to enter the US and obtain work authorisation while waiting for the immigrant petition to be approved. This is accomplished by the US citizen filing a petition for a “K” visa with CIS in the US

2) Second Preference – family members of permanent residents

This category consists of two groups: spouses and minor children of permanent residents and unmarried adult sons and daughters of permanent residents. 3) Third Preference – married children of US citizens

4) Fourth Preference – brothers and sisters of US citizens (the citizen must be at least 21 years old)

5. Diversity “Lottery” Immigrants

Aliens coming from designated “low admission” countries and who have at least a high school education (or its equivalent) or at least two years work experience (gained within five years of the visa application) in an occupation requiring at least two years of experience or training may qualify for the annual diversity immigrant visas.

Most of these DV-1 visas are allocated to persons from Africa and Europe (except the UK). Persons from Canada, Mexico, China, India, Philippines, Vietnam, and South Korea are normally not eligible. Typically, over 4.5 million applications are submitted per year, but only 55,000 visas are awarded.

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Expat Focus would like to acknowledge the kind help given by Kirstie Wilson of British Business Connection in compiling this guide.

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