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.
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.