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Obtaining Permanent Resident Status in the U.S.
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If you seek permanent resident status (a "green card") in the United States and do not have a close relative who is a U.S. citizen or legal permanent resident, you most likely will need your employer to sponsor you. Exceptions exist for asylum seekers, diversity lottery winners, investors, and ministers, among others. There are three steps in the usual process to obtain a green card based on a job. The first step is called labor certification. The second step is the visa petition itself. The third step involves adjustment to permanent resident status through an immigration agency office in the U.S., or consular processing at a U.S. embassy or consulate overseas. Avoiding Labor Certification The first step, labor certification, can be the most difficult part of the process. There are several ways to avoid or decrease the burden of labor certification. For example, three types of workers, together referred to as "priority workers," are totally exempt from the labor certification requirement. These are foreign nationals of "extraordinary ability," "outstanding professors and researchers" who have at least three years full-time teaching experience and a full-time tenure track offer in the United States, and certain executives and managers of multinational corporations. Another way of avoiding labor certification is by proving that your continued employment in the United States is in the "national interest" of the United States. This proof is made by showing that your employment benefits the economy, national health care system, educational system, or other high-priority federal interest. Further, nurses and physical therapists and foreign nationals possessing "exceptional ability in the arts or sciences" are eligible for an exemption from labor certification called "Schedule A." College and university professors and foreign nationals possessing "exceptional ability in the performing arts" are eligible for a special form of labor certification called "Special Handling." If you do not fit into any of the categories described above, you must secure an approved labor certification from the U.S. Labor Department before applying for a green card from the immigration agency. To obtain an approved labor certification, your employer must prove that there are no American workers qualified or available to do the job you seek to fill. To make this proof, your employer must advertise the position, list the position with the local Labor Department job bank, and post a notice disclosing the position, title, and salary to other employees or unions at the work place. The employer must also pay a salary that the Labor Department deems comparable to the average wage paid for this type of position in your area. The Visa Petition Once labor certification is approved or if you are exempt from labor certification, your employer can apply for immigrant visa ("green card") classification on your behalf by filing Form I-140 with a Regional Service Center of the U.S. immigration agency. The visa petition seeks classification in one of several employment-based ("EB") categories. On this form, the employer must describe the business, the position, and your qualifications. Depending upon which classification is sought, a visa may be immediately available, or there may be a delay of several years before a visa is available. These delays are caused by quotas assigned to the various visa classifications and countries of origin. Visa availability is determined by the State Department each month. Current information can be found at http://travel.state.gov or by calling (202) 663-1541. The "EB-2" category is for advanced degree holders, meaning that you must hold either a Bachelor's degree and at least five years of progressive experience or an advanced degree, and will be employed in a professional job. The "EB-3" category is for skilled workers, professionals, and other workers. Skilled workers are defined as those with at least two years' training or experience, including foreign nationals holding two-year Associate's degrees. A professional is defined as someone holding a Bachelor’s degree or its foreign equivalent. The Other Worker sub-category of the EB-3 classification encompasses unskilled workers. It can take several months to obtain approval of a visa petition from the immigration agency. If you have a spouse and/or minor children, they may obtain green cards with you as your dependents. Adjustment and Consular Processing After a visa petition approval is received from the U.S. immigration agency, you, the foreign national, may complete the third step of the process--either adjustment to permanent resident status or consular processing. "Adjustment" is made by filing Form I-485 with an immigration agency office in the U.S. This form asks for biographical, health, and other personal information. The last step in the adjustment process may be an interview conducted at an immigration agency office. Alternatively, you can obtain your green card at a U.S. consular office in your home country. The consular office will conduct an interview, medical exam, and investigation of your past that is very similar to the adjustment process. The forms and procedures, however, are different because the U.S. consular offices are under the jurisdiction of the State Department, not the U.S. immigration agency. Conclusion From start to finish, obtaining a green card can take a long time, particularly if your visa category is subject to a backlog. During this time, you can usually travel freely, unless you are subject to a restriction. You should always check with your lawyer if you plan to travel while your labor certification, visa petition, or adjustment application are pending. In addition to being time consuming, obtaining a green card is expensive. No fee is paid to the Labor Department for labor certification, but several hundred dollars must be paid to the immigration agency or State Department for the visa petition, adjustment and medical exam. Legal fees for the entire process vary, depending upon your case. Once you obtain a green card, you are subject to most of the same rights and obligations as U.S. citizens. For example, you must pay U.S. income taxes on your worldwide income. You are eligible for some government benefits. However, you cannot vote. Most significantly, you are subject to the "abandonment of residency" rules, meaning that you may lose your green card if you are absent from the U.S. for an extended period of time. If you want to become a naturalized U.S. citizen, you usually must hold your green card for five years and physically reside in the U.S. at least half that time. While obtaining permanent resident status based on a job in the U.S. can take a substantial amount of your time and money, there are numerous advantages of permanent resident status. By obtaining a green card, you greatly enhance your ability to travel, seek employment and/or relocate. For further information on these or any other immigration issues, please contact Miller Mayer.
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