Your Options for Obtaining Legal Immigration Status in the
United States by Navid Dayzad, Esq.*
Two basic paths exist for obtaining legal immigration status
in the United States. A foreign-national can either apply for
a temporary visa or permanent residence (commonly known as a
"green card"). A temporary visa allows an individual
to live for a certain number of years in the United States for
a specified purpose. In contrast, permanent residency allows
an individual to live in the United States on an ongoing basis
with few restrictions. Once an individual has been a permanent
resident for some time, she/he can apply to become a US citizen.
Temporary Visas
There is a wide range of temporary visas, used for many different
purposes, with the validity periods ranging from a few days
to several years. A visa may be granted to the principal applicant
as well as to his/her spouse and minor children. The different
temporary visa categories are classified by a letter. The
following is a brief list of the visa categories, to give
you an idea:
• A: Diplomatic employees and their households
• B: Business visitors or tourists (one of the most
common temporary visas)
• C: Passengers passing through at an airport or seaport
• D: Previously assigned for crew members, but eliminated
in June 2004
• E: Investors or persons engaged in commerce
• F: Students
• G: Employees of international organizations, such
as International Red Cross
• H: Professionals, nurses, and cultural workers, temporary/seasonal
workers, trainees (one of the most common temporary visas)
• I: Representatives of international media
• J: Exchange visitors, such as students, graduate medical
trainees, professors and researchers, short-term scholars,
camp counselors
• K: Fiancés, fiancées, spouses of US
citizens married abroad
• L: Certain employees of international companies
• M: Language and vocational students
• N: NATO employees
• O: Persons with extraordinary skills that are recognized
nationally or internationally
• P: Athletes, entertainment groups
• Q: Cultural exchange visitors
• R: Religious workers, such as Rabbis and Priests
• S: Criminal informants
• T: Victims of international trafficking in persons
• TN: Certain professionals from Canada, Mexico
• U: Victims of crimes
• V: Spouses and minor children of permanent residents
who are awaiting green cards
An experienced immigration attorney can help you determine
which temporary visa classification would best suit your goals
and craft the application to ensure the highest chance of
success.
Permanent Residency (Green Card Holders)
Permanent residence is far more desirable than a temporary
visa. It is more advantageous because it allows a foreign-national
to live in the United States indefinitely, does not require
constant renewal of a visa, and provides automatic work authorization.
There are four main ways of obtaining permanent residence:
through a family member, employment, asylum, or cancellation
of removal.
Family
Permanent residence through a family member requires a relationship
to a US citizen or permanent resident. You are eligible to
apply for permanent residence if you have a US citizen spouse,
parent, siblings, or child who is 21 years or older. You are
also eligible for permanent residence if you have a permanent
resident spouse or if you are unmarried and have a permanent
resident parent. Often, obtaining permanent residence through
a family member is the fastest and most secure route.
Employment
The most common route for obtaining permanent residence through
employment is by obtaining a labor certification. The US Department
of Labor grants a labor certification when a company can prove
that there are no qualified US workers available to fill the
foreign-national's position. The labor certification process
was dramatically changed in December 2004. It is now significantly
more streamlined and the Department of Labor will issue a
decision in 45 to 60 days, as opposed to the two to five year
wait required under the former system. (You may refer to another
article I have authored on this web site for more details.)
Permanent residence through employment is also available
for professors, researchers, persons who have served as an
executive or manager at an international company, persons
who have extraordinary skills that are recognized nationally
or internationally, or persons who can demonstrate they will
benefit the US's national interest.
Asylum
Persons who fear they will be persecuted if sent back to their
home country may apply for asylum and subsequently a green
card. You must prove that you have a "well-founded"
fear of persecution based on your race, religion, sexual orientation,
membership in a social group, political opinion, or your national
origin. Persons from countries with known human rights abuses
and intolerant governments, such as Iran, have better chances
of receiving asylum. An application includes a lengthy form,
declarations, and reports on the conditions in your home country.
In most cases, you must apply for asylum within one year of
arriving in the United States, unless you can justify the
delay.
Cancellation of Removal
Persons in removal proceedings, also known as deportation
hearings, may apply in court for a special pardon to receive
a green card and stay in the United States. For individuals
who have never had a green card, the critical element is proving
that you have a spouse, parent, or child who is a US citizen
or permanent resident who would suffer extreme hardship if
you were not allowed to stay the United States. You must also
prove that you have lived in the United States for 10 years
and have otherwise obeyed the laws.
With the advice of an immigration attorney, you will know
which of these routes is best for you, least expensive, and
fastest. Further, an immigration attorney will write the applications
and prepare the documentation necessary to prove your case,
based on the subtle nuances of the office at which you apply
or the Immigration Judge before whom you will appear. He or
she will also represent you at your interview with the Immigration
Service or at your hearing in Immigration Court.
US Citizenship
The most secure immigration status you can have is that of
a US citizen. As described above, a temporary visa is restrictive.
A green card can be taken away if you take a lengthy trip
outside the US or commit certain acts. In contrast, US citizenship
affords many advantages, such as ease of travel with a US
passport, the right to vote, and the option to apply for certain
relatives to move to the US more quickly.
In order to apply for citizenship, generally you must already
have a green card for three or five years. In certain circumstances,
you can apply for citizenship as soon as you receive your
green card. Other requirements include having lived in the
United States for certain amount of time, having English skills,
and having knowledge of US history (the last two requirements
can be waived).
Living in the United States legally or becoming a US citizen
is a dream for many. Beginning with an immigration application,
you can embark on your journey to realize these dreams and
aspirations.
Disclaimer:
This publication
serves only as general information and is not a substitute
for consultation with an attorney who can assess the specifics
of a case and inform of the constant changes in law and policy.
No attorney-client relationship is formed by the transmission
of this information.
Copyright © Navid Dayzad 2005
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