Permanent immigration is the ultimate goal of many individuals entering or planning to enter the United States. Lawful permanent residency offers individuals a multitude of benefits, including the freedom to live and work permanently in the United States. Potential immigrants should be as informed about the laws as possible.
Immigrants to the United States are divided into two categories:
1) Individuals who may acquire permanent residency without numerical limitation; and
2) Individuals subject to a yearly limitation.
There are three sub-division under these categories:
i) Family-based;
ii) Employment-based; and
iii) Diversity immigrants.
Sánchez-Roig Law, P.A. will help guide foreign nationals and/or United States employers through the permanent residency immigration process. We assist clients in completing petitions and fulfilling all requirements for both family- and employment-based permanent residency. To schedule a confidential consultation, please contact us at (305) 373-5385 or via e-mail. We are available for in-person, telephonic, or video consultations.
Employment-Based Permanent Residency Visa Categories
United States immigration law provides a pathway to permanent residency through employment. Every year, approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of United States immigration law. Employment based immigrant visas are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants.
To be considered for an immigrant visa under some employment-based categories, the applicant’s prospective employer or agent must first obtain labor certification from the U.S. Department of Labor before submitting the immigration petition. Once such certification is received (if required), the employer files the immigrant petition for the appropriate employment-based preference category. We are technologically equipped and well-versed in U.S. Citizenship and Immigration Services documentation requirements to expedite immigration visa approvals.
There are five categories of permanent worker visa preference classifications under which foreign workers or their employers can file petitions to immigrate. These categories are organized by the type of skills, education and work experience of eligible foreign citizens.
First Preference EB-1:
Applicant must be the beneficiary of an approved immigrant petition. Labor certification is not required. This category applies to: 1) persons with extraordinary ability in the sciences, arts, education, business, or athletics; 2) outstanding professors and researchers; and 3) multinational managers or executives.
Second Preference EB-2:
Applicant must generally have an approved PERM labor certification from the U.S. Department of Labor and a job offer before the immigrant petition is filed. This category applies to: 1) professionals holding an advanced degree or a baccalaureate degree and at least five years’ experience; and 2) persons with exceptional ability in the sciences, arts, or business.
Third Preference EB-3:
Applicant must have an approved PERM labor certification from the U.S. Department of Labor and a job offer before the immigrant petition is filed. This category applies to: 1) skilled workers, not temporary or seasonal, with a minimum two-year training or experience; 2) professionals whose jobs require at least a baccalaureate degree from a United States institution or its foreign equivalent; and 3) unskilled workers, not temporary or seasonal.
Fourth Preference EB-4:
Applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant with the certain exceptions. Labor certification is not required. There are many subgroups within this category.
Fifth Preference EB-5:
Immigrant investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which provide job creation. Applicants must invest $1 million or $500,000 (investment in a specific sector) in a new commercial enterprise.
Sánchez-Roig Law, P.A. will help guide foreign workers and United States employers through the employment-based permanent residency immigration process. We assist clients in determining their preference category, completing application procedures, and fulfilling additional requirements such as labor certification. We will also assist workers in completing visa applications for their spouses and children. To schedule a confidential consultation, please contact us at (305) 373-5385 or via e-mail. We are available for in-person, telephonic, or video consultations.
PERM Labor Certification
Employers seeking to sponsor a foreign national for permanent residency in the United States must clear specific hurdles. Among these hurdles is testing the labor market to ensure there are no qualified United States workers available for the foreign national’s position. The employer must first apply for Program Electronic Review Management (“PERM”) labor certification from the U.S. Department of Labor and show that there are an insufficient number of qualified United States workers to fill the position offered at the prevailing wage; and that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed United States workers. Once the PERM labor certification has been approved, the employer files the appropriate immigrant visa petition with the U.S. Citizenship and Immigration Services on the employee’s behalf.
There are complex legal issues involved in the labor certification and petition process for employment based visas. Our legal team is prepared to help all foreign national work visa applicants and U.S. employers swiftly and successfully obtain the most appropriate work visa. To schedule a confidential consultation, please contact us at (305) 373-5385 or via e-mail. We are available for in-person, telephonic, or video consultations.
Family-Based Immigration
Family is important and you do not want to be separated from your loved ones. We help you prevent or minimize separation of family members. You want someone you can trust to guide you in the complex process of family-based immigration for you or your loved ones. The process of bringing family members into the United States is not easy or automatic. Our knowledge of U.S. Citizenship and Immigration Services requirements and processes enables clients to bring a spouse, fiancé/fiancée, child, or relative into the United States in the shortest time possible. Whether your family member is already in the United States and seeking permanent residency, or you are filing a new immigration application on their behalf, we can help. For those who have gained permanent residency, we can help assess whether naturalization is a desirable step.
Eligible Family Members
Immediate Relatives of United States Citizens
United States citizens may file petitions for eligible family members. Unlike family members of green card holders, immediate relatives of United States citizens do not have to wait for a visa to become available. Immediate relatives of United States citizens include: 1) spouses; 2) children, unmarried and under the age of 21; and 3) parents. If a family member does not qualify as an immediate relative, United States citizens must use the preference categories when filing for family-based immigration.
Preference Categories; Relatives of Lawful Permanent Residents
Preference categories also apply to relatives of green card holders. The number of visas for each category is limited per year. Therefore, applicants must wait until a visa becomes available for their preference category before immigrating to the United States. The preference categories are as follows:
First Preference: Unmarried, children over age 21 of United States citizens;
Second Preference (2A): Spouses and unmarried children under 21 of green card holders;
Second Preference (2B): Unmarried children of green card holders;
Third Preference: Married children of United States citizens; and
Fourth Preference: Siblings of U.S. citizens age 21 or older.
You must prove that you can financially support the non-citizen relative by providing an affidavit of support attesting that your income is 125% above the mandated poverty line for your family, including the beneficiary, and other sponsored family members. This is a long-term, legally binding and enforceable contract that does not end by the termination of the family relationship. With so much required information, the affidavit of support can be a daunting obstacle for obtaining family-based permanent United States residence. Let us help guide you in this process.
K Visas
United States citizens who have married a foreign national, or are engaged to a citizen of another country can obtain visas allowing their foreign spouse, fiancé/fiancée to legally enter the United States. This process is complex and where a couple intends to marry often impacts which visa category to choose. It is very important to consult with a trusted immigration attorney.
The K-1: Fiancée/Fiancé
If wish to bring your fiancé/fiancée into the United States to marry, you must file for a K-1 fiancé visa on his or her behalf for their lawful entry into the United States, with the U. S. Citizenship and Immigration Services. Children of the K-1 holder can enter the United States with a K-2 visa. There are numerous requirements that United States citizens must establish to file for a K-1. These include: 1) previously met within the two years of the date of filing the petition, unless a waiver is granted; 2) a bona fide intention to marry; and 3) is legally able and actually willing to conclude a valid marriage in the United States within 90 days after the foreign fiancée’s or fiancé’s arrival.
We assist with all documentation, including proving to the U.S. Citizenship and Immigration Services that the impending marriage is not a fraudulent means to gain entry into the United States by a non-citizen. Upon approval, you can proceed to file a permanent residency (green card) application on behalf of your fiancée/fiancé. If you do not marry within ninety days, the K-1 fiancée/fiancé and any K-2 dependents will be required to depart the United States. Failure to depart will result in removal.
The K-3 and K-4: Spouse and Children of Spouse
Any United States citizen who has married outside the United States can file a K-3 spouse visa to bring their new husband or wife lawfully into this country. If the marriage is determined to be valid by the U.S. Citizenship and Immigration Services, and a spouse visa is granted, the spouse is automatically eligible to apply for permanent residency; and to file for a K-4 visa for entry of any children. Application for a K-3 visa must be made in the country where the marriage took place. Both the K-3 and the K-4 are temporary visas. Holders of these visas can enter the United States, file for adjustment of status after admission, and obtain employment authorization until becoming permanent residents.
The K-1, K-3, and K-4 visa processes are lengthy, expensive, and full of obstacles. Our experienced legal team is well prepared to assist you in pursuing your family-based permanent residency.
Immigration Benefits for Same-Sex Marriages
On June 26, 2013, in a landmark decision, the U.S. Supreme Court held that restricting United States federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (“DOMA”), was unconstitutional under the Due Process Clause as a deprivation of the liberty of the person protected by the Fifth Amendment. With invalidation of DOMA’s Section 3, same-sex marriages and spouses are now recognized as lawful under the Immigration and Nationality Act, if the marriage is valid under the laws of the state where it was celebrated. The ruling also applies to same-sex marriages celebrated in countries where such unions are valid the country’s laws. Therefore, spouses of same-sex marriages valid in the states or countries where the marriage was celebrated, are now eligible for marriage-based lawful permanent residency and adjustment of status.
Sánchez-Roig Law, P.A. is experienced in handling permanent residency and adjustments of spouses of same-sex marriages and can guide you through the process expeditiously and efficiently.
Provisional Waivers
The 1996 changes to the Immigration and Nationality Act barred individuals who have accumulated a certain period of “unlawful presence” in the United States and departed the United States permanent residents for a period of time unless they first obtained a waiver. After April 1, 1997, individuals who accumulated 180 days or more of unlawful presence and departed the country could not return to the United States for 3 years. Individuals who have accumulated one or more years of unlawful presence and left the country, were barred from returning to the United States for 10 years. Individuals illegally returning to the United States without seeking a waiver had to wait outside the United States for a period of 10 years before they could apply for a waiver. The same rule applied to persons who illegally reenter the United States after being deported.
Effective March 4, 2013, an applicant for lawful permanent residency can apply for an unlawful presence waiver within the United States without the risk of denial of a waiver while being abroad. An approved provisional waiver waives the unlawful presence ground of inadmissibility. An individual who entered the United States without inspection or without documents is now able to apply for an unlawful presence waiver while residing with their family in the United States. Upon approval of the waiver, the visa beneficiary must travel back to their native country to appear at the United States embassy or consulate for an interview to obtain their immigrant visa and be admitted to the United States as a lawful permanent resident. A well-documented application is necessary to address the numerous required factors in a provisional waiver request; and these requests should be handled by an experienced immigration attorney.
