Immigrant visas come in two main categories: visas subject to numerical limitation and visas not subject to numerical limitation. The term numerical limitation means several things. First, it refers to the overall limits set by Congress on immigrants. Second, it involves the use of per-country caps. Third, and most important, numerically limited visas are organized along a system of preferences that favors certain aliens over others. Every immigrant wants the best shot at a visa, but qualifying for the easiest category—visas not subject to numerical limitation—is quite difficult. Congress has reserved this category for immediate relatives of U.S. citizens, resident aliens returning from temporary visits abroad, and former U.S. citizens. Consequently, for the vast majority of aliens who want to immigrate, demand is much higher than the relatively short supply prescribed by law.
Though having no numerical limitation makes it easier to obtain, the immediate-relative visa still carries strict limitations. Generally, the term immediate relatives means children, spouses, and parents, but unique rules apply to children and spouses. To qualify as a child, the person must be unmarried and under 21 years of age. The law is also concerned with how the parent came to have the child, and it applies special age restrictions to legitimate and illegitimate children, stepchildren, adopted children, and orphans. Spouses of U.S. citizens must pass the most demanding tests. The law requires the alien to have a "valid and subsisting marriage" with the citizen under the laws of the country where the marriage took place and considers a wide variety of marriages insufficient for granting the visa. This severity is an answer to the common abuse of marriage to obtain citizenship. The Immigration Marriage Fraud Amendments of 1986 impose criminal penalties for violations. The Fraud Amendments also impose a two-year conditional residency requirement before alien spouses and their sons and daughters may petition for permanent-resident status.
Three categories exist for visas subject to numerical limitation: family sponsored, employment related, and so-called diversity immigration. The last is a special category created to reverse the drastic reductions in immigration from European countries, particularly Ireland. Effective after 1995, a formula was used to determine whether in the previous five years a country had been "underrepresented." If so, an alien from that country is eligible for one of 55,000 visas annually allocated to diversity immigrants. Aliens may apply once a year in a lottery, making this a highly uncertain way to obtain a visa. Not everyone is eligible; applicants must generally have a high school education and two years of work experience. Different goals make more visas available to Hong Kong: because of uncertainty over the transfer of the country to China, the law allotted 20,000 visas annually to certain Hong Kong citizens who were employees of U.S. businesses, their spouses, and their children.
The primary types of numerically limited visas—family sponsored and employment related—are organized into preference categories. Preference means that the law allocates visas to certain aliens over others in order to promote such goals as preserving families, protecting U.S. jobs, and admitting immigrants most likely to benefit the nation. How the law ranks aliens can be seen from the numerical limits on each category. Families are allotted 226,000 visas annually, with a somewhat flexible maximum of 465,000 in four preference categories. Only 140,000 employment-related visas are allotted, in five preference categories. Unused visas from higher preference categories are reallocated to the lower categories.
Preference in family-sponsored visas is decided by the nature of an alien's relationship to the petitioner:
First preference: Unmarried sons and daughters of U.S. citizens, who are too old to qualify (age 21 or older) for the nonnumerically limited immediate-relative visa: 23,400 visas plus any unused visas from the other family-sponsored preference classes.
Second preference: Spouses, children, and unmarried sons and daughters of aliens who are lawful permanent residents: minimum of 114,200 visas. Spouses and children are allocated 77 percent of the visas; unmarried sons and daughters (at least 21 years old), 23 percent.
Third preference: Married sons and daughters of U.S. citizens: 23,400 plus any unused visas from the first-and second-preference classes.
Fourth preference: Brothers and sisters of U.S. citizens, if the citizen is at least 21 years old: 65,000 plus any unused visas from the three higher classes.
Employment-related preferences are not based on any familial relationship. They focus on educational attainment and stress occupations that are highly specialized. Their levels are set as percentages of the worldwide maximum of 140,000.
First preference: Priority workers are allotted 28.6 percent. These are persons of "extraordinary ability" in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and multinational executives and managers.
Second preference: Professionals holding advanced degrees or persons of exceptional ability in the sciences, arts, or business are allotted 28.6 percent.
Third preference: Skilled workers in short supply, professionals holding baccalaureate degrees, and other workers in short supply are allotted 28.6 percent.
Fourth preference: Certain special immigrants: 7.1 percent. These are mainly religious workers, as well as former employees of the U.S. government and international organizations.
Fifth preference: Employment creation immigrants are allotted 7.1 percent. These are investors who will create at least ten U.S. jobs by investing in a new commercial enterprise benefiting the U.S. economy, especially in areas of low employment. Generally, the minimum required investment is $1 million.
Though all potential immigrants face rigorous application requirements, certain categories are more exacting. Petitions are needed for visas based on the immediate-relative, family-sponsored, and employment-related preference categories. These must be filed in the United States by citizens or resident aliens on behalf of the applicant and then approved by the BCIS. (Under a significant exception, anyone may petition on behalf of Amerasian children of U.S. service members.) Many of the employment-related preference categories also need an employer's petition. As a safeguard intended to protect U.S. jobs, the employer is first required to seek an official form of permission called labor certification. This is approved only if (a) sufficient qualified workers are not available and (b) employment of the alien will not adversely affect wages or working conditions of similarly employed U.S. workers. The DEPARTMENT OF LABOR defines the occupations for which employers may seek certification in two groups: the professions and unskilled labor. Only rarely is an unskilled labor application approved. Furthermore, the job for which the employer seeks labor certification must also be permanent in nature.
After approval of the labor certification or preference petition, or both, the actual visa application process begins for an alien who resides outside the United States. This process takes place at the appropriate U.S. consulate, where authority to approve or deny an application belongs exclusively to consular officials. If eligible, the alien must submit considerable documentation. The required documents include biographical reports; police, court, prison, and military records; birth and marriage certificates; passports; photographs; and evidence that the alien will not become a public charge while in the United States. The alien gives the consul these documents and the results of a medical examination. If all is in order, the applicant signs a formal application under oath.
The consul usually rules on the application the same day. The principal consular officer reviews any refusal to issue a visa, but no formal review is available after that. The STATE DEPARTMENT has only limited authority over visa denials. The applicant has one year to overcome the objection to the visa on which a refusal was based, or the entire visa application process must be started anew. The BURDEN OF PROOF is always on the applicant to establish eligibility. If the applicant passes, the consul issues an immigrant visa. Under certain circumstances, immigrants unable to travel immediately may receive new visas later.
Once the immigrant actually arrives in the United States, an immigration officer again independently examines the alien's visa eligibility. This officer may exclude the alien in spite of the visa. In that case, the alien may be temporarily detained, either aboard the vessel of arrival or in the United States pending a ruling. If the officer finds the visa in order and admits the alien, the visa is retained by the BCIS as a permanent record of admission. The alien is then issued a form I-151, commonly known as a green card (even though its color is now off-white), and becomes a permanent-resident alien. Although it is most often thought of as an employment permit, the green card was originally designed to serve as evidence of the alien's status as a permanent resident of the United States.
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