GREEN
CARDS AND EVENTUAL CITIZENSHIP: THE BASICS
Introduction:
We are a
nation of immigrants and almost no one who lives in the United States has
ancestors who were here one hundred years ago, much less two hundred years
ago. It has been argued that what makes the United States a world power is
not its natural wealth, which is less than Russia or China, or its system
of education, which lags behind Europe and Russia, but its policy of
letting the “best and the brightest” immigrate into our nation. One Client put it well: “Everyone
who is motivated, hardworking, and intent on bettering themselves wants to
come into the United States. You get the
best people from all over the world.”
She is right, and the goal of most
immigrants is to get a “green card,” and, eventually,
citizenship.
Elsewhere on this website are in depth
articles about the types of visas that are available in business, for
students, and for trade and the reader is advised to read them after
reading this general article about “green cards,” since in
those articles are far more details about the process of obtaining visas
and eventually becoming a citizen of the United States. The purpose of this article is to outline
briefly what precisely a “green card” is and how one seeks to
obtain it and how it can lead to citizenship in the United States.
Definitions
and Basics
For starters: the “green
card” is not green. It is,
however, a ticket to a brighter future for thousands of people from all
over the world and if you learn the law and follow it, it may be available
for you and your family.
A green card is
legal permission to permanently live in the United States. Thus, its official name is “permanent residency.” A permanent resident (a foreigner with
the green card) can live anywhere in the U.S., work at
almost any job, and travel out and back into the U.S. without limit.
The green card is given to
foreigners who are admissible. They must also qualify for it and apply for
it.
There are several ways to qualify for
the green card. For example, it can
be a reward to foreign soldiers who fight during war in the U.S. military.
However, the most common ways to qualify for the green card are
through family and through employment as discussed in more detail below.
Family
Sponsored Green Cards
Family qualification for the green card is
simple in theory. A foreigner must
be an immediate relative or a “preference relative” to an
American. The American can be a U.S. citizen or a
permanent resident. Immediate
relatives are the foreign spouses of U.S. citizens. They are also the foreign parents of
children who are U.S. citizens and
who are over 21 years of age. They
are also the foreign children of U.S. citizens, but
the foreign children must be under 21 years of age and unmarried.
Preference relatives are foreign
parents or unmarried children who do not meet the age requirements of
immediate relatives. Preference
relatives are also the foreign spouses and unmarried children of permanent residents. Preference relatives are also the foreign
siblings of U.S. citizens.
There are an unlimited number of green
cards available for immediate relatives. Thus, immediate relatives can
receive the green card as soon as the paperwork is approved. However, green cards are limited for preference
relatives and preference relatives usually must wait 3 - 12 years for the
green card after the initial paperwork is approved.
Employment
Based Green Cards.
Employment-based green cards are for the
benefit of U.S.
employers. They are to help U.S. employers find
qualified workers when no qualified Americans apply for a job. (Again, Americans can include U.S. citizens and
permanent residents.) Hence, U.S. employers
usually must go through a lengthy and somewhat burdensome process to prove
that they have advertised fairly for a position and that no qualified
Americans have applied for the position.
(There are exceptions for foreigners who are so skilled, knowledgeable,
capable or renowned that they are deemed to be of “extraordinary
ability,” “priority workers” or otherwise in the
“national interest.”)
Thus, the employment based green card is rarely the first step that U.S. employers must
take to fill a position. Instead, U.S. employers must
usually first sponsor an employee for a temporary work visa such as the
H-1B or the L Visa. (The reader should read Coming to
America: Non-Immigrant and Immigrant Business Visa Applications.) Then, if there are no qualified Americans
for the position, the employer can sponsor the foreign employee for a green
card.
Clearly, then, the decision to sponsor
a foreigner for an employment-based green card is not one to be taken
lightly. U.S. employers must
be ready to commit to a process of a year or more: usually first sponsoring
a foreigner for a temporary work visa, then seeking a qualified American, and
then sponsoring the foreigner for the green card. Also, the employer must be prepared to
pay advertising costs, government filing fees and, if hired, lawyer’s
fees that could total in the range of $6,000 - $10,000 USD.
Further, the employer must prove that
the total compensation (salary and benefits) for a position is the same,
regardless of being offered to American or foreigner workers. Furthermore, the employer is taking a risk.
Once the foreign employee has the green card (plus a few months), the
foreigner will be legally able to look for another employer. Finally, there are a limited number of
employment-based green cards per year.
If the limit is reached, an approved foreigner would have to wait
till the next year (and perhaps to renew a temporary work visa) until a
green card became available.
Nevertheless, employment-based green cards can supply a real need
when qualified American labor is unavailable to work for American
employers.
The Five Categories Of Employment Based
Green Cards
Employment based green cards are
available in five categories, which are called “preferences.”
1. The first preference is for people
of extraordinary ability, international renown or acclaim, executives in
multinational organizations, high level managers in multinational
organizations, and the like.
2.
The second preference is generally for professionals with advanced
degrees (a professional degree or other graduate level degree or higher) or
for persons of “exceptional ability.” Exceptional ability is less than international
renown or acclaim, but it is usually requires at least national renown or
acclaim.
3. The third preference is for professional
workers without advanced degrees (i.e., people who have a bachelor’s
degree but not a graduate degree), upper level managers, skilled workers,
and (although not often used) even unskilled workers.
For these first three preferences, the
work can be in the arts, business, education, the professions, science,
skilled trades or sports.
4.
The fourth preference is for clergy and religious workers; it is
also for certain miscellaneous workers.
The clergy must have a valid offer of a “job” (including
monks, counselors, regular clergy, etc.) from a recognized religious
denomination.
5.
The fifth preference is for
foreign investors. If a foreign
investor is willing to spend a minimum of $1,000,000 USD in a “new
commercial enterprise” (a new
business or a new development within an existing business, but not merely
purchasing stocks, bonds, etc.), and if the investment would create at
least 10 jobs in the U.S. for Americans,
the foreign investor could qualify for a green card. Furthermore, the minimum investment is
only $500,000 if the area is a rural (less than 20,000 people) or if the
area has an unemployment rate that is 150% higher than the national
average. See 8 CFR 204.6(f).
Through
30 September 2003, there are
some additional areas (including Hawaii) that require
only a $500,000 investment also.
Danger to Keeping the Green Card
Green cards can be lost. Chiefly, they can be lost by breaking
American laws, especially immigration laws, drug laws, and criminal laws
involving violence, sex, theft and fraud.
Otherwise, a green card can be lost if the permanent resident spends
over a year outside the U.S. That is because the green card is to
allow a foreigner to live in America
permanently. If the foreigner does
not live in America for a year, a
rebuttable presumption arises that the foreigner does not want to live in America
permanently. (However, for
emergencies or other unforeseen circumstances, special permission can be
obtained to re-enter the U.S. after an
absence of more than 12 months.)
Furthermore, it can cause questions if the permanent resident spends
more than 6 months out of every 12 months outside of the U.S. Thus, permanent residents should obey
American laws, and they should spend over half the year physically living
inside the U.S.
THE ULTIMATE GOAL: OBTAINING
CITIZENSHIP.
The green card is the main prerequisite
for acquiring U.S.
citizenship. Naturalized citizens
(people who acquire U.S. citizenship
through law and not by birth) share fully in U.S. citizenship,
except that they cannot become president of the U.S. In addition to living, working and
traveling as they wish (which the green card allows), citizens can vote,
hold public office, and be absent for the U.S. as long as they
wish.
In short, U.S. citizenship
allows a person to participate fully in American life because citizenship
makes a foreigner into an American.
Perhaps most important, U.S. citizens cannot be deported and the United States will fight for
the safety and rights of a citizen mistreated abroad. (Remember, the State
Department recently publically stated they would not take any official
action to protect Green Card Holders in China who were still
Chinese citizens.) U.S. citizenship
that was lawfully acquired makes a foreigner into an American, whose home
is America and who cannot
be deprived of that home. (The only
exception is if the citizenship was acquired through fraud: for example,
citizenship that was based upon a green card that was based upon a
fraudulent marriage to a U.S. citizen. In cases of fraudulently acquired
citizenship, the citizenship can be revoked -- because it was never legally
obtained in the first place.)
The requirements for naturalization to U.S. citizenship
are as follows:
1.
The foreigner must be a permanent resident (have the green card) for
5 years; half of that time must
be spent physically inside the U.S. (This is another good reason for
permanent residents to spend over half of each year physically inside the U.S.) The required time is only 3 years if the foreigner is married
to a U.S. citizen and
remains to that same U.S. citizen. Also, the foreigner must be fluent in
English, supportive of the U.S., knowledgeable
about the U.S. form of
government and American history; and the foreigner must have a good moral
character.
2.
Then, the foreigner files the proper form (N-400) and fee and
attends an interview.
If all is in order, the foreigner is
approved for citizenship. Either
then in front of an Immigration Officer or (usually) a few weeks later in
front of a judge, the foreigner becomes an American through the oath of citizenship.
Finally, U.S. citizenship
can also be acquired through birth. Anyone (except children of diplomats)
who is born in U.S. territory is a
U.S. citizen. People who are born of at least one U.S. citizen parent
are almost always U.S. citizens. Sometimes, people who had a grandparent
who was a U.S. citizen are
also U.S. citizens;
however, the law on this has changed widely over the years. Anyone who suspects they might be a U.S. citizen
through birth should consult with an immigration lawyer.
CONCLUSION
As seen in the various other articles
on this web site, the rights granted to American citizens are unique in the
world. The American Constitution, which forms the basis for many of the
aspiring new nations in the world, guarantees in the Bill of Rights
freedoms that are the very core of what America stands for-but which are
normally only available for the citizen. It is a goal well worth striving
for and perhaps it is noteworthy to recall that the immigration officer
examining you or the attorney advising you was either an immigrant him or
herself…or his parents were…or his grandparents were.
At some point fifty or a hundred years
ago, all of us had ancestors who confronted the issue you now face: how to
become a citizen of this powerful nation and win for your future
generations the benefits of American citizenship. It will not be easy, but
then, what truly worthwhile is ever easy?
The
millionaire Nelson Rockefeller, whose own great grandfather was an
immigrant, put it well: “Whenever we look upon this earth, the
opportunities take shape within the problems.” The opportunity lies before you.
These Articles are
to give the reader a general description of certain areas of the law. Legal
advice is necessary to apply these legal concepts to your particular situation.
The Reader should obtain competent legal advice before relying on the
Articles.
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