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Immigrant Visas
 

Legal immigration is a highly regulated and tightly controlled system that serves the national interest.  Through our legal immigration system, U.S. citizens and lawful permanent residents unite with close family members, and U.S. employers gain access to the specific skills necessary to strengthen the U.S. economy and remain competitive in the global economy.  Through legal immigration, the U.S. also fulfills its longstanding tradition of protecting a fraction of the world’s refugees.

Who is a legal immigrant?  A legal immigrant is a foreign-born individual who has been admitted to reside in the United States as a lawful permanent resident (LPR).  LPRs are given immigrant visas, commonly referred to as “green cards.”

Family-based immigration: a U.S. citizen or LPR can sponsor his or her close family members for permanent residence.  A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), children, brothers and sisters.  An LPR can sponsor his or her spouse, minor children, and adult unmarried children.  All citizens or LPRs wishing to petition for a family member must have an income at least 125% of the federal poverty level and sign a legally enforceable affidavit to support his or her family member.  Family reunion is allowed within the U.S. through adjustment of status process or overseas through the consular processing.  The process of adjustment of status is controlled by special provision of the Immigration and Nationality Act and it might not available to each alien.

Employment-based immigration: a U.S. employer can sponsor a foreign-born employee for permanent residence.  Typically, the employer must first demonstrate to the Department of Labor that there is no qualified U.S. worker available for the job for which an immigrant visa is being sought.  Different categories of the alien workers might have different processing time.

As an asylee, a person may gain permanent residence in the U.S. A person located outside the United States who seeks protection in the U.S. on the grounds that he or she faces persecution in his or her homeland can enter this country as a refugee.  In order to be admitted to the U.S. as a refugee, the person must prove that he or she has a “well-founded fear of persecution” on the basis of at least one of the following internationally recognized grounds: race, religion, membership in a social group, political opinion or national origin.  Refugees generally apply for admission to the United States in refugee camps or at designated processing sites outside their home countries.  In some instances, refugees may apply for protection from within their home countries.  If accepted as a refugee, the person is sent to the U.S. and receives assistance through the “refugee resettlement program.”

A person who is already in the United States and fears persecution if sent back to his or her home country may apply for asylum in the U.S.  The same like a refugee, an asylum applicant must prove that he or she has a “well-founded” fear of persecution based on one of the five enumerated grounds listed above.  Once granted asylum, the person is called an “asylee.”  In most cases, an individual must apply for asylum within one year of arriving in the U.S.  Refugees and asylees may apply for permanent residence after one year in the U.S.

How many immigrants are admitted to the United States every year?  By statute, Congress has placed a limit on the number of foreign-born individuals who are admitted to the United States annually as family-based or employment-based immigrants or as refugees. 

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320. 

Family-based immigration is governed by a formula that imposes a cap on every family-based immigration category, with the exception of “immediate relatives” (spouses, minor unmarried children and parents of U.S. citizens).  The formula allows unused employment-based immigration visas in one year to be dedicated to family-based immigration the following year, and unused family-based immigration visas in one year to be added to the cap the next year.  This formula means that there are slight variations from year to year in family-based immigration.  Because of the numerical cap, there are long waiting periods to obtain a visa in most of the family-based immigrant categories.

There is no numerical cap on the number of immediate relatives (spouses, minor unmarried children and parents of U.S. citizens) admitted annually to the U.S. as immigrants.  However, the number of immediate relatives is subtracted from the 226,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year.

In most cases, before the Immigration and Naturalization Service (INS) will issue an employment-based immigrant visa to a foreign-born individual, the employer first must obtain a “labor certification” from the U.S. Department of Labor confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired.  The Department of Labor also must confirm that employment of the foreign-born individual will not adversely affect the wages and working conditions of U.S. workers. The labor certification process takes different processing times based on the particular category of the alien worker.

The United States accepts only a limited number of refugees from around the world each year. This number is determined every year by the President in consultation with Congress.  The total number of annual “refugee slots” is divided among different regions of the world.
       
There is no limit on the number of people who can be granted asylum each year.  Both refugees and asylees may apply to become LPRs after one year.  The 10,000 cap fpr adjustment of status for asylees has been eliminated.  No limitation is imposed on either on refugees or asylees.





FAMILY-BASED IMMIGRATION

Historically, family reunification has been the principal policy underpinning U.S. immigration law.  Family-based immigration, a tightly regulated system, allows for close relatives of U.S. Citizens and Legal Permanent Residents (LPR) to rejoin their families here in America.

Family-based immigrants are admitted to the U.S. either as immediate relatives of U.S. citizens or through the family preference system.  Immediate Relatives are:

  • Spouses of U.S. citizens;
  • Unmarried minor children of U.S. citizens; and
  • Parents of U.S. citizens.

There is no cap on the number of visas available every year for immediate relatives.

The Family Preference System allows into the U.S. adult children (unmarried and married) and brothers and sisters of U.S. citizens; and spouses and unmarried children (minor and adult) of LPRs.  There are a limited number of visas available every year under the Family Preference system.

Under current immigration law, visas are allocated as follows:

FAMILY-SPONSORED PREFERENCES

First:  Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.
Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A.  Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B.  Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.
Third:  Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.
Fourth:  Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.
 
[1] Plus any visas left over from the 4th preference.
[2] Plus any visas left over from the 1st and 2nd preferences.
[3] Plus any visas left over from the previous preferences.

 


EMPLOYMENT-BASED IMMIGRATION TO THE UNITED STATES

There are five basic types of business immigrant visas, ranked in order of priority of need by U.S. employers and the economy, as determined by Congress.  All categories are limited by annual levels and per-country levels.

These immigrants become permanent residents -- obtain “green cards” -- and the indefinite right to live and work in the United States, as long as they do not commit any offense that would render them deportable.

Business immigrants usually are sponsored by a U.S. employer based on a demonstrated need.  Some business immigrants may self-petition if they meet statutory criteria for “extraordinary ability” in their field, or if their entry would be in the “national interest.”

Protections for U.S. workers are built into the system.  Most business immigrant cases require Department of Labor certification that no U.S. workers are able, qualified or willing to take the position offered to the foreign national and that admitting the immigrant will not negatively impact the wages and working conditions of similarly situated U.S. workers.  The only categories exempt from this requirement are those who are extraordinary or outstanding in their field or whose presence is in the “national interest.”

THE EMPLOYMENT PREFERENCE SYSTEM allows certain immigrants to obtain permanent residence (“green cards”) in the United States to work.  Currently, immigration law allots 140,000 employment-based visas to immigrants. These employment-based visas are divided into the following categories:

EMPLOYMENT-BASED PREFERENCES
First: Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".  
Fourth: Certain Special Immigrants:  7.1% of the worldwide level.
Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
4.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

        More particular information regarding the caps and processing times for the family-based and employment-based immigrant visas could be obtained on the Department of State website in the monthly published Visa Bulletin at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.