Immigrating to United States

Immigrants Not Subject to Numerical Limitation

Immediate Relatives of US Citizens

Parents, spouses or children of US citizens are eligible to immigrate the United States under category of immediate relatives. INA 201(b). Immigrants in this category are not subject to yearly numerical limitation, but immigration by immediate relatives substantially reduces the quota for other family-sponsored immigration categories. INA 201(c).

  • CHILD - Under INA definition a child is someone who is unmarried and under 21 years old. Besides biological, definition also encompasses stepchildren and  adopted children. INA 101(b)(1).
  • PARENT - A parent who has any of the relationships described under definition of "child" meets the statutory definition of a parent, INA 101(b)(2), provided thesponsoring US citizen son or daughter is at least 21 years old. INA 201(b). When an adopted child obtains US citizenship, his or her biological parents lose the right to immigrate based on the child's citizenship. INA 101(b)(1)(E)-(G).
  • SPOUSES - In order to immigrate as the spouse of a US citizen, the foreign  citizen must have a "valid and subsisting marriage" with that citizen. The validity of themarriage is generally determined by the laws if the country where the marriage took place. Marriage entered into for the sole purpose of conferring an immigration benefits, does not provide the requisite relationship, regardless where the marriage took place. The standard used by the immigration authorities when determining validity of the marriage is whether the couple intended "to establish a life together at the time they were married." Bark v. INS, 511 F.2d 1200 (9th Cir. 1975). Another standard formerly widely utilized was whether the marriage was "factually dead" or nonviable at the time the petition was filed. However, this standard was discarded when Court of Appeals in Dabaghian v Civiletti, 607 F.2d 868 (9th Cir. 1979), rejected the "factual dead" test and held that if the marriage was not a fraudulent marriage from its inception, it could serve as a basis for immigration benefit until legally dissolved.

Congress, in an attempt to deter immigration-related marriage fraud, in 1986 passed the Immigration Marriage Fraud Amendments. The law imposed a two-year conditional residency on a non-citizen spouses and their children if at the time of petition the marriage was less than two-years old. To remove the conditional status, the couple must file a petition, supported by evidence substantiating the marriage, within the last 90 days of the conditional status. Based on documentation submitted together with the petition,  the conditional status will either be removed or an interview will be scheduled to ascertain that a) the "qualifying marriage" was entered into "for the purpose of procuring an alien's admission as an immigrant;" b) the marriage has not been judicially annulled  or terminated, other than through the death of a spouse; or c) a fee or other consideration other than attorney's fees was not given for the filling of the alien's petition. INA 216.  

When providing removing the conditional status, couples are strongly encouraged to provide evidence that their marriage was bona fide. Leases or property records, joint financial accounts, birth certificates of joint children, and any other similar documents should be included with the petition. However, since the standard is what the couple intended at the time of marriage, such evidence does not preclude a finding that the marriage was fraudulent. In Nikrodhanondha v. Reno, 202 F.3d 922 (7th Cir. 2000), a marriage was found to be a sham even though the couple had two children, the court held that the couple did not intent to create a life together at the time of marriage. The court relied on the fact that the couple gave conflicting testimony regarding their relationship, lived together for only three months, and maintained separate finance.

If the immigration authorities make a favorable decision, conditional status is replaced with a Lawful Permanent Status. If the decision is unfavorable the Conditional Resident Status is terminated and the non-citizen spouse is subject to removal.

The Conditional Resident Status is also terminated if the couple never appeared for the interview unless a waiver is available. INA 216(c)(4). To qualify for a waiver, the conditional resident must establish that the hardship they face is extreme in comparison to the hardship normally inherent in comparison to removal and that it is based on factors that arose after they became conditional resident. 8 CFR 216.5(e)(1). Foreign citizens often utilize other waivers found in INA 216, finding them easier to qualify for. If the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault. INA 216(c)(4)(B). A waiver is also available if the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent. INA 216(c)(4)(C). This provision was added by Congress as part of the Violence Against Women Act (VAWA), non-citizens no longer have to remain in abusive relationships in order to maintain their immigration benefits. In order to prevent fraudulent claims the waiver petition must be supported by police reports or professional evaluations, 56 Fed. Reg. 22635-01, however, immigration authorities must consider any credible evidence of abuse. INA 216(c)(4).

If marriage was entered into while the non-citizen was in removal proceedings, immediate relative status cannot be granted until the non-citizen has resided at least two years outside of the United States. INA 204(g).  An exception is available to this requirement if the non-citizen demonstrates by "clear and convincing evidence" that the marriage was undertaken in good faith and not for the purpose of evading immigrations laws. INA 245(e). The Marriage Fraud Amendment imposes up to five years and/or not more than $250,000 in criminal penalties and fines for marriage fraud and make the non-citizen permanently barred for any immigration benefit.       

Immigrants Subject to Numerical Limitation

Family Members of US Citizens

Immigration law limits immigration by relatives of US citizens at 480,000, this includes immigration by immediate relatives and by other family members subject to numerically-limited  family-sponsored categories. The law also mandates that at least 226,000 must immigrate through the four family-sponsored preference categories:

First Preference: Unmarried sons and daughters (21 years or older) of US Citizens - 23,400 plus any unused visa numbers from the other family-sponsored preference classes.

Second Preference: Spouses, Children, and unmarried sons and daughters of lawful permanent resident aliens - 114,200, plus any visa numbers in excess of 226,000. Separate numerical limits exist for:

  1. Spouses and children - 77% of the visa numbers issued under this preference, or about 87,000.
  2. Unmarried sons and daughters (at least 21 years old) - 23% of the visa numbers issued under this preference, or about 26,300.

Third Preference: Married sons and daughters of US citizens - 23,400 plus any unused visa numbers from the first and second preference categories.

Fourth Preference: Brothers and sisters of US citizens, if the citizen is at least 21 years old - 65,000 plus any unused visa numbers from the first, second and third family sponsored preference categories.  

The State Department publishes a monthly bulletin that summarizes the availability of visa numbers, approximate wait times, and lists any countries that are oversubscribed. To view the bulletin please click here.

Employment-Related Preferences

As a result of Immigration Act of 1990 (the 1990 Act), the American Competitiveness in the Twenty-First Century Act of 2000 and the Real ID Act of 2005, employment-based immigration has dramatically increased over the last twenty years. Under the current law employment-based immigrants must qualify for one of the following five preference categories:

First Preference: Priority Workers - 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. INA 203(b)(1). Priority workers consist of:

  • Persons of "extraordinary ability" in the science, arts, education, business, or athletics;
  • Outstanding professors and researchers;
  • Certain multinational executives and managers.  

Extraordinary Ability is defined as a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 56 Fed.Reg. 60897-01. Immigration law further requires that the extraordinary ability be reflected through "sustained national or      international acclaim" and documentation establishing non-citizens contribution to the field. INA 203(b)(1). To qualify as an outstanding professor or researcher, a non-citizen must be internationally recognized in his or her field, as shown by published work, awards, or other achievements. 8 CFR 204.5(i). Multinational executives and managers must have been employed for at least one year in an executive or managerial position at an overseas office of a company with an affiliate office in the United States. Immigrants qualifying under extraordinary ability category can self-petition, but professors, researchers, executives, and managers must be sponsored by an employer.   

Second Preference: 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.   

An Advanced Degree is defined as any degree above the baccalaureate. A baccalaureate degree plus five years' work experience in the field can be substituted for a master's degree unless the profession customarily requires a doctorate, in which case doctorate degree must be attained. Exceptional Ability is defined as a degree of expertise significantly above that ordinarily encountered in the arts, science, or business.  

Proof of a job offer is required for most non-citizens wishing to immigrate under this category, however, this requirement can be waived if the employment will be in the national interest. Doctors willing to work for five years in undeserved areas can qualify for a nation interest waiver if the federal or state agency affirm that their work will be in the public interest.   

In In re New York State Department of Transportation, 221 I. & N. Dec. 215, Interim Decision 3363 (BIA 1998), the Board of Immigration Appeals established a three-part test to determine under what circumstances a national interest waiver can be granted - 1) the immigrant must work in a field of "substantial intrinsic importance," 2) the employment must provide a benefit that is national in scope, and 3) the immigrant must be capable of serving the national interest to a greater degree than would a qualified US worker.   

Third Preference:  Skilled Workers, Professionals, and Other Workers in short supply - 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 "other workers" may immigrate each year.

Professionals, for the purpose of second and third preference categories, are architects, engineers, lawyers, physicians, surgeons, and teachers. INA 101(a)(32). Workers whose profession requires at least a baccalaureate degree are also considered professionals. 8 CFR 204.5(l)(2). "Skilled workers" means anyone who is able to perform his job which requires at least two years of training or experience. 8 CFR 204.4(l)(2).  

Fourth Preference:  Certain Special Immigrants - 7.1% of the worldwide level. This preference category includes religious workers, former employees of the US government and international organizations, and juveniles who are dependent on a US court of state agency. INA 101(a)(27)(C)-(m).    

Fifth Preference:  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 Pub. L. 102-395.

Initially this preference was for investors who, as a result of a least $1 million investment, created 10 or more jobs. To encourage the usage of this category, Congress, in 1992, established a pilot program that set aside 3,000 visas for immigrants investing $500,000 in a government designated Regional Centers. Immigrants investing under this pilot program need only to show that their investment only indirectly created ten or more jobs, no direct managing of the business was required by the investor.

The State Department publishes a monthly bulletin that summarizes the availability of visa numbers, approximate wait times, and lists any countries that are oversubscribed. To view the bulletin please click here.

Diversity Immigrants
The Immigration Act of 1990 established a permanent diversity immigration program, now known as DV-1. Under the program 55,000 diversity immigrants from countries with historical low figures of immigration to the US are selected by lottery each year. To qualify for the diversity program, an applicant must be a high school graduate or its equivalent, or have at least two years of work experience in an occupation which requires at least two years of training or experience. Winners are selected from a random process during a designated period, persons selected must obtain immigration status by the end of the fiscal year.

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