Immigrant (Permanent) Visas
An "immigrant visa" (also known as a "green" card or permanent resident status) permits a foreign national to remain in the United States permanently. A permanent resident has the right to become a naturalized U.S. citizen after three to five years. Immigrant visas are numerically limited by country and by class, e.g. family relationship or job skills.
To enter or to stay in the United States as a nonimmigrant or immigrant usually requires several steps. First, a foreign national or his or her employer or relative often files an application with the U.S. Citizenship & Immigration Service (USCIS) to be classified in one of the nonimmigrant or immigrant visa categories. If the USCIS approves the application, the foreign national may need to go to a U.S. embassy or consulate overseas to have a visa stamped in his or her passport. This stamp indicates the visa class and the date of issuance and expiration. At the border, an immigration inspector will review the visa stamp and issue an admission card (Form I-94 for nonimmigrants). The inspector can authorize admission for any length of time, up to the expiration date on the visa stamp. The USCIS also issues permanent resident alien cards to immigrants in the United States.
IMMIGRANT VISA CATEGORIES
An immigrant or legal permanent resident ("LPR") is someone admitted to the United States permanently. To obtain immigrant status, an applicant must meet both the substantive and numerical requirements of the law. Substantively, one must qualify as a specified close relative of a U.S. citizen or another LPR, as an employee of a sponsoring employer or prospective employer, or as a "diversity immigrant" under a visa "lottery" program. Further, the potential immigrant must not fall within any of the general categories of inadmissible aliens specified in the law, such as criminality, mental defect, Communist party affiliation, drug trafficking, or terrorism.
In addition to substantive requirements, there are also country-specific and world-wide statutory quota limits imposed on most categories of family and employment-based immigrant visas. These quota limitations often can result in extended waiting periods before immigrant status may be obtained.
Currently, about 670,000 immigrant visas are available each year.
A. EMPLOYMENT-BASED IMMIGRANTS
There are five employment-based immigrant visa categories (of which three have additional sub-categories of their own). They are as follows:
Employment-Based Category 1 (EB-1)
PRIORITY WORKERS
The first employment-based category covers "priority workers." No labor certification is required in this category. Roughly 40,000 visas are allocated annually to this group. This category has three subcategories.
Category 1 - Sub-category A
Aliens with "extraordinary ability" in arts, sciences, education, business or athletics - To qualify in this sub-category, the applicant must show sustained national or international acclaim and achievements recognized through extensive public documentation, and must be able to demonstrate that his or her contribution would "substantially benefit" the United States prospectively.
Outstanding professors and researchers - To qualify in this sub-category, the applicant must establish international recognition or acclaim, must have at least three years' experience in teaching and research in the field, and must have an offer of employment for a tenured or tenured-track teaching position at a U.S. university or college, or a comparable research position in private industry.
Certain multinational executives and managers - This sub-category provides an immigrant visa for individuals who were employed as executives or managers overseas during at least one year within the three-year period immediately prior to transfer into the United States, and who are transferred to the United States to perform executive or managerial duties. The overseas and U.S. employers must be the same or affiliated entities. The definitions of executive capacity and managerial capacity are fairly broad, and include managing a function, not just employees.
Employment-Based Category 2 (EB-2)
ADVANCED DEGREE HOLDERS AND ALIENS OF EXCEPTIONAL ABILITY
The second employment-based category annually allows for 40,000 visas, plus any spilldown of unused visas from the EB-1 category. This category has two sub-categories. The first is open to members of the professions holding advanced degrees (e.g. above that of baccalaureate) or their equivalent. The second sub-category is available to those who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Under the second sub-category, the applicant's exceptional ability must be demonstrated by more than just a degree or license, and must be substantially above that normally encountered in the sciences, arts or business.
An applicant in this category generally must obtain a labor certification for his position. However, a specific job offer and labor certification may not be necessary if an applicant can demonstrate that such an exemption would be in the national interest.
Employment-Based Category 3 (EB-3)
SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS
This category also allows for 40,000 visas annually, plus any spilldown of unused visas from the EB-1 and EB-2 categories.. There are three sub-categories in this category. An applicant in each of these sub-categories must obtain a labor certification for his or her position.
Category 3 - Sub-category A
Skilled workers - An alien qualifies as a skilled worker if, at the time of petitioning for classification, he or she is capable of performing skilled labor requiring at least two years training or experience, and is being sponsored for a permanent position for which qualified workers are not available in the United States.
Category 3 - Sub-category B
Professionals - This sub-category encompasses aliens holding baccalaureate degrees or their equivalent who are members of the professions. The employer must show that no qualified U.S. workers are available for the job.
Category 3 - Sub-category C
Other workers - This sub-category is reserved for aliens capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. A cap of 10,000 visas within the overall 40,000 annual limit for the EB-3 category is set for applicants seeking to qualify in this sub-category.
Employment-Based Category 4 (EB-4)
SPECIAL IMMIGRANTS
This category has 10,000 visas available per year, and encompasses religious workers, certain former United States government employees, and certain foreign nationals working for international organizations.
Employment-Based Category 5 (EB-5)
EMPLOYMENT-CREATION IMMIGRANTS
This "immigrant investor" category provides up to 10,000 visas annually to applicants who invest a minimum of $1 million in a new enterprise in the United States that will create jobs for at least ten U.S. citizens or permanent residents, other than immediate family members of the investor. In certain targeted employment areas, the investment may be reduced to $500,000.
B. FAMILY-BASED IMMIGRANTS
There are two basic types of familial relationships that serve as a basis to apply for permanent resident status: immediate relatives and family-sponsored preference immigrants. There is worldwide cap on family-sponsored immigrants of 480,000 per year.
Immediate Relatives
Spouses and minor (i.e., under 21) unmarried children of United States citizens, parents of U.S. citizens (provided the citizen is over 21 years old), and certain spouses of deceased U.S. citizens can qualify for an immigrant visa as immediate relatives. There are no numerical limitations on this category of immigrant visas.
Family Sponsored Immigrants
Each family preference category has its own annual allocation of visas under the worldwide limit on family-based visas. The current family-based preference categories and annual numerical limits are:
Family First Preference
(23,400 visas)
Unmarried sons and daughters of U.S. citizens
Family Second Preference
(114,000 visas)
Spouses and unmarried children of permanent resident aliens
Family Third Preference
(23,400 visas)
Married sons and daughters of
U.S. citizens
Family Fourth Preference
(65,000 visas)
Brothers and sisters of U.S. citizens, if such citizen is at least 21 years old
In addition, the spouse or child of the principal alien is entitled to the same status and order of consideration, if accompanying or following to join the spouse or alien.
C. DIVERSITY IMMIGRANTS
"Diversity immigration" refers to a concept of allowing people a chance to immigrate to the United States even if they lack close relatives or a job offer. 55,000 immigrant visas are available each year to people from countries that traditionally have not had much immigration to the United States in the past. To qualify for this program, applicants must have at least a high school education or its equivalent, or have worked two years in an occupation that requires two years of training or experience.
The diversity immigration program is aimed at helping potential immigrants from such regions as Africa and Europe. Millions of people apply for the permanent diversity visa program every year.
TAX NOTES
Residence for tax purposes
U.S. law creates a statutory definition of the term "resident alien" for tax purposes. There are two tests, one based upon visa status, the other based upon "substantial presence" in the United States.
First, an alien who has been granted lawful permanent resident status is a resident for U.S. tax purposes, without exception. Absence from the United States for the entire year does not prevent the need to file a U.S. tax return, unless the alien's permanent resident status has been terminated under the immigration laws. Permanent resident status can be relinquished in appropriate cases.
Second, even many nonimmigrants can be deemed to be U.S. residents for tax purposes if they have been physically present in the United States for 183 or more days within the calendar year. This is known as the "substantial presence" test. Alternatively, one is deemed "substantially present" in the United States if he or she has been "cumulatively present" in the United States over the last three years for a sufficient number of days. Cumulative presence is calculated by a complex formula. An exception to the cumulative presence rules is provided for an individual alien who is able to show that his or her "tax home" and family connections remain in a foreign country.
Generally, non-residents holding A, F, G, J or M visas are not considered residents for tax purposes. However, non-residents who are engaged in trade or business in the United States or who have U.S.-source income may have to file form 1040-NR and pay applicable taxes on that income.
Estate taxes and immigration status
Ordinarily under U.S. law, if a person dies he or she can leave a certain amount to his or her spouse tax free. This is known as the "marital deduction." That deduction normally is not available where the surviving spouse is not a U.S. citizen unless there is a disposition by means of a qualified domestic trust. Accordingly, it may be important for spouses to consider careful tax planning or apply for naturalization as U.S. citizens to avoid excessive estate taxes.
Further, the federal income tax definition of resident does not apply for federal estate or gift tax purposes. Rather, one is a resident for estate or gift tax purposes if his or her "domicile" is the United States. If one dies a resident of the United States, i.e., is a "domiciliary," the estate is subject to U.S. estate tax on everything he or she owns, regardless of its location. If one dies a nonresident, the estate is subject to U.S. estate tax only on property situated in the United States.