There are three primary ways that individuals from abroad can immigrate to the United States. They arebased on a qualifying family relationship,employment, orthe U.S. Diversity Lottery (also known as green card lottery). Permanent residency is also granted to other categories of immigrants such as refugees and asylees, and other special immigrants.

We will provide a brief overview of each type of immigration. Additional information can be found at the web sites of the U.S. Citizenship and Immigration Services www.uscis.gov or the U.S. Department of State www.state.gov

Family Based Immigration
Family based immigration is divided into categories:

• Immediate relatives
• Preference Immigrants
• Derivative Beneficiaries of Preference Immigrants
• Fiance(e)s

Family Based Preference Categories
People who want to come to the US as immigrants (other than immediate relatives of US citizens) are put into categories, based on what is known as the "preference system." Relatives in preference categories get visas only when a visa is available. The number of visas in the family based preference categories available is limited to 226,000 immigrant visaseach year. These are split among the four family based immigrant visa groups:

• 1st Preference (23,400) – Unmarried sons and daughters, over age 21 of United States citizens

• 2nd Preference (114,200 + any unusedfirst preference) – includes two subcategories:
  • 2A Spouses & unmarried children under 21 of LPRs;
  • 2B Unmarried sons and daughters over 21 of LPRs

• 3rd Preference (23,400 + any unused visas from first and second preferences) Married sons and daughters of US citizens

• 4th Preference – (65,000) Brothers and sisters of adult U.S. citizens, where the petitioning sibling is at least 21.

The spouse or unmarried child under the age of 21 can come with the principal alien who is the beneficiary of a family based preference immigrant visa petition providing they either immigrate at the same time or follow to join withinsix months.

In the case of the spouse of a preference based family petition, the marriage had to take place before the petition was approved in order for a spouse to come. This is because the unmarried sons and daughters of permanent residents, and the unmarried sons and daughters of US citizens, must remain unmarried until they immigrate to and enter the US. Consequently, they are not allowed to bring a spouse with them. In fact, if they marry, they become ineligible for a visa under the preference category under which they are seeking to immigrate.

Please be aware that the approval of an immigrant visa petition does not by itself guarantee that someone will be allowed to immigrate to the US. Applicants for immigrant visas must also meet other requirements for admission to the United States.

It is very important that your relatives not attempt to enter the US illegally or without inspection and authorization. Doing so may make them permanently ineligible for a green card. Similarly, if they enter the US in a valid non-immigrant status and overstay their visa, they can be prevented from obtaining permanent residency status unless and until they have remained outside the US for betweenthree and10 years depending on how long they remained in the US without authorization. While there are some exceptions, called waivers, in these kinds of situations for certain qualifying family members, not everyone can qualify or receive a waiver, so it is better to just make sure that you or your relative does not get permanently excluded from the United States by following the law.

For more information about family based immigration and how to petition for a family member, please come to one of our educational workshops. To request a workshop on this or another immigration topic for your group or organization, please contact us.

You can also obtain more information on the USCIS web site: www.uscis.gov

Employment Based Immigration

People can also come to the United States based on a qualifying employment relationship. Generally, employment based immigration requires that an employer file a petition so that their employee or prospective employee can be granted permanent residence status in the US. There are several different categories under which someone can immigrate to the United States based on employment or their profession.

First : Priority Workers: 28.6percent of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. This category is divided into three sections:

1. Workers of extraordinary ability;
2. Outstanding professors and researchers; and
3. Multinational executives and managers

Second: 28.6 percent(about 40,000) of the worldwide employment-based preference level, plus any numbers not required by first preference. This category includes individuals who qualify as:

1. Workers who are members of the professions holding advanced degrees or their equivalent; and
2. Workers "who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural, or educational interests, or welfare of the United States.

Third: 28.6 percentof the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers". Schedule A Workers : Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 "recaptured" numbers. This category includes people who qualify as:

1. Skilled workers (with at least two year of experience);
2. Professionals (baccalaureate degree required for position and alien); and
3. Other workers (less than two years experience required for position).

Fourth: Certain Special Immigrants: 7.1 percentof the worldwide level. This category includes religious workers as well as other classes of special immigrants such as:

• employees (officers or supervisors working in a managerial or executive capacity) of certain U.S. businesses operating in Hong Kong and who meet certain other criteria;

• certain aliens who have served honorably on active duty in the U.S. Armed Forces after October 15, 1978 (or are enlisted to serve) for at least 12 years, where the original enlistment was outside the United States (under a treaty or agreement in effect October 1, 1991) and who meet certain other criteria;

• certain scientists of the Commonwealth of the independent states of the former Soviet Union or the Baltic States (where the petition was approved on or before October 24, 1996) and who met certain other criteria;

• certain aliens declared dependent on a juvenile court (also known as special immigrant juveniles) who are eligible for foster care and where a determination has been made by the juvenile court that family reunification is no longer a viable option, and who meets certain other criteria; and

• returning residents who were outside the United States for a period of time beyond the statutory limitation because of circumstances beyond their control.

Fifth: Employment Creation: 7.1 percentof the worldwide level, There are 10,000 visas available per year under this category and there is no pass down to the investor category from the higher employment based preferences. Under this category, there are two types of investors: those investing in "target employment areas," which constitutes 3,000 of the annual 10,000 limitation, and those who invest anywhere else.

This Immigrant Visa Category was established to make it easy for alien investors to the United States who want to start new commercial enterprises that will help to employ American workers. Qualifying for permanent residency under this preference category does not depend upon a job offer, but instead depends on the amount of investment and the resulting creation of jobs for American workers. As a result, an alien entrepreneur may self petition for U.S. permanent residency status if s/he can show that s/he qualifies as an employment creation investor. Since Cook County has such a vibrant economy, and it is easy to find well qualified employees here, this is a great place for immigrant investors to consider making their home.

Immigration to the United States is available under this category to individuals investing a qualifying investment of $500,000 in target employment areas and $1,000,000 in other areas where that investment will create at least 10 full time positions. The amount of the investment, and the nature of the financial arrangements, and evidence of job creation is key to success in these applications.

To qualify for immigrant investor status, the alien investor must meet each of the following requirements:

• the investor must invest or be actively in the process of investing at least $1 million in the enterprise;
• the required amount of capital must be placed at risk for the purpose of generating a return on that capital;
• the capital invested must have been obtained through lawful means;
• the enterprise must benefit the U.S. economy and must create full-time employment for not less than 10 U.S. workers;
• the investment must be made in a "new commercial enterprise" or a "troubled business;"
• the investor must be engaged in the management of the enterprise, either through day-to-day managerial control or through policy formulation

Investors should be aware that the law gives the US CIS the ability to increase the $1 million figure to as high as $3 million for "high employment areas," and to lower the figure to $500,000 in "targeted employment" areas where the unemployment rate is at least 150 percentof the national average, and rural areas (outside a metropolitan statistical area or outside a city or town with 20,000 or more people).

In order to preclude making investments in the U.S., which you may not be able to adequately supervise if your petition is denied, it is strongly recommended that you consult with an experienced immigration attorney. This will help to insure that any investments made in order to secure U.S. permanent residency, meet the minimum thresholds established in practice by the US CIS.

Diversity Lottery

The Diversity Lottery (DV-) Immigrant Visa Program (Also known as the Visa Lottery or green card lottery) was created in order to allow natives of certain countries to immigrate to the United States despite the lack of immigration sponsorship from either close family or a U.S. employer.

The purpose of this program is to insure the diversity of immigrants to the United States, particularly from countries who historically have low immigration rates.

Qualifying Diversity Lottery applicants must also demonstrate that they have at least a high school education or its equivalent or, within five years preceding the date of application for a visa, have two years work experience in an occupation requiring at least two years training or expertise.

Every year, the U.S. Department of State issues instruction about how to apply for the Diversity Lottery, from what countries will applications be accepted, and other eligibility requirements. Not everyone who is selected will actually be granted a visa and the earlier you complete the necessary paperwork if you are selected, the better your chances.

Additional Information and registration instructions for the DV-2006 program can be found at www.dvlottery.state.gov.

Refugees and Asylees

The purpose of political asylum and refugee status is to grant refuge to individuals who are unable or unwilling to return their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Refugees
A refugee is someone who is outside the United States and applies for refuge from the U.S. government because they are unwilling or unable to return to their own country because of persecution or a well founded fear of persecution. The definition of a refugee found in American immigration law comes from the 1951 United Nations Convention relating to the Status of Refugees. There is a limited number of refugees who are admitted to the United States each year. The President of the United States determines what this figure will be each year, after consulting with Congress.

To qualify for admission to the United States as a refugee, each applicant must meet all of the following criteria:

• Be a refugee as set forth in section 101(a)(42) of the INA;
• Be of special humanitarian concern to the United States;
• Be admissible under U.S. law:
• Not be firmly resettled in any foreign country;

Spouses and minor children of qualifying refugees can derive status and also enter the United States as a refugee; either accompanying or following to join the principal refugee, providing they do so within certain time limits. Occasionally, family members may come to the United States as non-immigrants (see section below) independently from the principal refugee's admission. When this happens they can apply for and be given derivative refugee status without leaving the United States. It is important the family of a refugee entering the country separately apply promptly for this derivative status. If they apply late, or once the refugee has been granted permanent residency status, they may have to wait for an immigrant visa to become available.

Asylees

An asylee is a person currently in the United States who is unable or unwilling to return to his or her country of nationality because of persecution or a well founded fear of persecution and who has been officially recognized as such by the US CIS.

Theoretically, an asylee must meet the same criteria as a refugee; the only difference is in the location of the person at the time they are applying for refuge. The prospective asylee is in the United States or applying for admission at a port of entry, and the prospective refugee is outside the United States. In reality, since the United Nations typically first reviews refugee applications before it is sent to the US government, the documentation needed to prove refugee status is generally much less onerous than that required by the US CIS.

U.S. Asylum Program

Any alien physically present in the United States who applies within one year, or any alien who is at a port of entry and is seeking admission to the United States, may request political asylum in the United States. According to the Refugee Act, someone's current immigration status, and whether they are in legal or illegal status, is not relevant to an applicant's asylum claim. Aliens may also apply for asylum in one of two ways: with a US CIS asylum officer; or, if apprehended, with an immigration judge as part of a removal hearing.

Traditionally, aliens who appeared at ports of entry without proper documents and requested asylum were referred for exclusion hearings; however, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 made major revisions to the procedure, effective on April 1, 1997.

Under the new law, these asylum applicants are now referred to asylum officers for credible fear interviews. These interviews are not formal asylum hearings. The purpose of the interviews is to determine whether aliens have credible fear of persecution or torture and are thus eligible to apply for asylum or withholding of removal before an immigration judge. In credible fear interviews, aliens only need to show that there is a significant possibility that they might establish eligibility for asylum. To be granted asylum, applicants must show they have been persecuted in the past or have a well-founded fear of persecution. An alien may request that an immigration judge review a negative determination by the US CIS on a credible fear claim. Aliens denied asylum by the US CIS may renew asylum claims with an immigration judge once they are in removal proceedings. An important distinction though is that if someone is in a removal or deportation hearing, the standard is different when pursuing an asylum claim. An applicant for asylum who is otherwise removable from the USA, but is requesting "restriction from removal" to prevent the UC ICE (U.S. Immigration and Customs Enforcement) from deporting him or her, must show that his or her "life or freedom would be threatened" if s/he had to go back to the country of nationality.

Currently the US CIS standard is to conduct asylum interviews within 43 days after a claim is filed, and to identify and grant those cases that have merit (generally in 60 days from the date of filing the application). If the US CIS asylum officer does not grant the claim, the applicant is referred immediately for removal proceedings (unless the alien is still in a legal status). The immigration judge may grant the claim or may issue a denial and an order of removal. Under this system, asylum officers issue relatively few denials, but an interview followed by a referral to the immigration judge represents the asylum officer's judgment that the application should be denied. The US CIS will issue a denial (and cannot refer the case) when the applicant is still in a legal status. An applicant does not keep a scheduled appointment for an asylum interview without good cause is referred immediately for removal proceedings.

Legalization Applicants & Other Special Visa Categories

There have been a number of special programs over the yearsthat give amnesty type benefits to certain individuals who may have entered or remained in the USA illegally, if they met the program requirements. These programs are generally known as "legalization programs." Another are so called legalization or registry programs. Other programs allow certain individuals to stay in the USA for a period longer than their current non-immigrant visa status allows such as the Temporary Protected Status program and the deferred status program.

To find out if you qualify, it is important that you go to one of the volunteer agencies accredited to represent people before the immigration service. These voluntary agencies listed below usually provide service at no or little cost based on your income. You can also seek the advice of a private attorney specializing in immigration matters. It is not recommended that you go to the US CIS to ask if you qualify. It is better to let someone from an accredited volunteer agency or an attorney determine if you qualify and help you prepare the application and then submit it to the US CIS.

Here are some examples of special programs:

Registry Program
The "registry program" is one of the oldest of the legalization programs. In order to qualify under this program, you must have been present in the United States since January 1, 1972. If you qualify under the Registry program you are allowed to obtain lawful permanent residence even if illegally in the United States now, or if you initially entered the U.S. illegally.

Where Can I Find the Law?
The part of the law concerning the registry provisions is located at INA 249. The specific eligibility requirements and procedures for becoming a permanent resident through registry are included in the Code of Federal Regulations (CFR) at 8 CFR 1259 .

Who Is Eligible?
You are eligible to apply for permanent residence through the Registry program if you:

• Entered the USA before January 1, 1972;
• Have continuously lived in the USA since your original entry before January 1, 1972;
• Are a person of good moral character;
• Are not ineligible for citizenship, except for the requirement of five years of lawful permanent residence, AND you are not inadmissible because you participated in terrorist activities, certain criminal or security grounds, or for alien smuggling;
• Never participated in Nazi persecutions or genocide;

Note: Any alien who has at any time engaged in terrorist activities is ineligible for registry. Additionally, any person who does not appear at a removal hearing, or who does not depart from the USA after agreeing to voluntary departure, is ineligible for registry for a period of ten years.

In order to apply, a completed Form I-485 with filing fee, and a completed Form G-325A with evidence that you have continuously resided in the United States prior to January 1, 1972, must be sent to the USCIS district office having jurisdiction over the place in which you live. You must establish that you are eligible and that registry should be granted in the exercise of discretion. There is no appeal from the decision of the District Director but your application may be renewed in front of an Immigration Judge.

Applicants who have filed under the Registry program are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

Traveling Outside the United States
Registry applicants who have received a receipt from the USCIS documenting the fact that their application was received and is complete may travel outside the USA while they wait for their Application through to be processed, providing they first receive an Advanced Parole from the USCIS.

If an alien obtains Advance Parole from the USCIS following approval of a Form I-131, he or she can travel outside of the United States and return without jeopardizing their registry application. It is important that the travel bebrief though and not total more than 180 days. This is because any alien who has accrued more than 180 days of unlawful presence in the United States and then travels outside the United States is inadmissible for a period of 3 to 10 years. Registry applicants have, by definition, accrued long periods of time in unlawful status. If you are applying for permanent residence using the section 249 registry provisions, you should not travel outside of the United States without first obtaining advance parole from the Service, or you will be unable to return to the United States.

Withholding of Deportation or Removal
Withholding of deportation or removal is a status granted to individuals who have been given permission to remain in the U.S. because their life or freedom would be threatened if they are forced to return to their home country. This status is similar to, but separate and different from asylum and refugee status.

Cuban/Haitian Entrants

Cuban/Haitian entrants are foreign nationals of Cuba or Haiti who have been granted permission to enter the U.S. (or "paroled") either with the understanding that they will remain in the U.S. permanently or for a temporary stay. These individuals are eligible for refugee assistance and many other public benefits.

Amerasians
The Amerasian program granted lawful permanent resident status under a special law for persons born in Vietnam who either were born in Vietnam after Jan. 1, 1962, and before Jan. 1, 1976, and who had a U.S. citizen father, or who were the spouse or minor child of such an individual.

Immediate Relatives
The U.S. Government defines what they consider to be "immediate relatives" of U.S. citizens. These individuals do not currently have to wait for a visa to become available before they can come to the USA with a green card. They are able to come to the US as soon as the US citizen spouse, parent or qualifying son or daughter files an immigrant visa petition for them, that petition is approved, they pass the necessary medical exams, and when they meet other admission requirements such as showing that someone will support them when they immigrate to the United States. Immediate relatives include:

• Spouses of US citizens
• Unmarried children of United States citizens under the age of 21
• Parents of United States citizens providing the USC sons and daughters are at least age 21 at the time of the filing
• Spouses of deceased US citizens (if married for at least 2 years at the time of their spouses death)
• Battered children, spouses of US citizens, as well as children born to LPRs abroad

It is important to note that "immediate relatives" DO NOT get to bring derivative beneficiaries (spouses or children); a separate petition must be filed for each family member.

Preference Categories

Individuals seeking to immigrate to the United States are given a visa based on a combination of the category under which they are seeking to enter the United States, the country they are from, and the date the immigrant visa petition was filed on their behalf. This date is known as the persons "priority date."

In order to know what someone's priority date is, it is important to keep the original receipt and the Notice of Approval sent by the USCIS when the petition was filed and then approved. The filing date listed on these documents becomes the person's priority date.

Then, you have to look at the "Visa Bulletin" which is published each month by the U.S. Department of State. When you look at the Visa Bulletin, you first search for the preference category, then the country the person is from, and then find the date listed. That date is the priority date currently being processed during the current month for people in that category and from that country. If your country is not specifically listed, this means you fall in the "all chargeability" category. The Department of State Visa Bulletin can be accessed at http://travel.state.gov/visa/frvi/bulletin/bulletin_2943.html

The information in this site provides only general information on immigration related topics. It is not legal advice and the information herein may change without notice. If you have a specific immigration question, we recommend you contact a USCIS Accredited Representative or an Immigration Attorney for detailed information on a specific immigration related question.