This category is set aside for “priority workers,” which includes individuals of extraordinary ability, outstanding professors and researchers, and multinational executives and managers. The first preference category is not subject to the labor certification process, therefore one need not show that there are no U.S. workers qualified for the position.

The second employment-based preference is set aside for professionals having an advanced degree or persons possessing exceptional ability. This category is subject to labor certification, with the exception of petitions filed for persons of exceptional ability or for a National Interest Waiver of the job offer requirement. To obtain a National Interest Waiver, an applicant must demonstrate that he or she will substantially benefit the U.S. in areas such as improving the economy, wages and working conditions, education, health care, the environment, housing for disadvantaged Americans, etc.

The labor certification process can be arduous and time consuming. The purpose of labor certification is demonstrate that (a) a real job exists, (b) no American worker is available for the employment, (c) the foreign applicant meets the qualifications for the employment, and (d) that the employer is offering competitive wages and working conditions. The Department of Labor directs and oversees a recruitment effort to locate U.S. workers and, if this is not successful, will certify the position as one which may be filled by a foreign worker. Once this process is completed, the employer may then apply to Citizenship and Immigration Services (CIS) for an immigrant visa for its prospective employee.

To qualify in this category the position must go through a labor certification process, and must require:

a) at least two years of education, training or experience as indicated by the employer and the U.S. Department of Labor, or

b) at least a baccalaureate degree, or

c) less than two years education, training or experience.

This preference includes all of those potential immigrants who do not fit into an existing employment or family-based category. Special immigrants include: persons trying to reacquire citizenship, returning residents, religious workers, overseas employees of the US government, and others.

In order for qualify for an immigrant visa in this category, a foreign national must establish that he or she has invested in a qualifying enterprise, including showing a substantial investment ($500,000 to $1 million depending on the geographic area) and creation of at least ten jobs. If the foreign national is able to demonstrate the above factors to the satisfaction of CIS, then the investor will be granted conditional permanent resident status. At the end of two years as a conditional resident, the investor must demonstrate that the enterprise continues, that the required capital was invested, and that the ten new jobs still exist.

FAMLY-BASED CATEGORIES

A U.S. citizen may file an immigrant visa petition on behalf of his or her immediate relatives, such as parents, spouses and minor children. There are no numerical limitations on the number of immigrant visas which can be granted to the immediate relatives of a U.S. citizen, but there are numerical limitations on the issuance of visas to other relatives, such as siblings, adult children and married children, of citizens. A Permanent Resident may file an immigrant visa petition on behalf of his or her spouse and minor children, but there are numerical limitations on visa issuance and thus waiting lists have developed. The annual cap on family preference immigrants is 480,000. There are four family preferences, which are:

In all four preference categories, there can be very long waits to obtain a visa. A monthly visa bulletin released by the U.S. Department of State gives up-to-date processing on visa issuance under these categories. See the Visa Bulletin for the current bulletin.

OTHER OPTIONS

The U.S. offers asylum and refugee protection based on an inherent belief in human rights and in ending or preventing the persecution of individuals. Asylum is a precious and important protection granted by federal law to qualified applicants who are unable or unwilling to return to their country of nationality because of persecution or a well-founded fear of persecution. A claim of persecution must be based on at least one of five internationally recognized grounds: race, religion, nationality, membership in a particular social group, or political opinion. A claim for asylum must be made within a year from an individual's last entry into the U.S., unless he or she can demonstrate that a significant change has occurred since the one year deadline which causes the applicant to seek asylum.

In addition to asylum and refugee protection, withholding of removal is available to a refugee in the United States who can show a likelihood his or her life or freedom would be threatened if he or she were returned to the country in question. Withholding of removal is in some ways similar to asylum, but is governed by a higher standard, requiring an applicant to establish that it is more likely than not that he/she would be persecuted. Unlike asylum, however, once this standard is met, there is no discretion to deny withholding and the applicant may not be returned to the country as long as the same conditions exist. Also, there is no requirement to file the application within one year of entry. It should be noted that withholding of removal does not permit one to obtain permanent residence, and may only be requested in removal proceedings.

Finally, an international treaty prevents the U.S. from returning persons to countries where they would likely be tortured. Relief of this nature may only be requested in removal proceedings.

Each year, 50,000 immigrant visas are made available through the Diversity Visa Lottery Program (Green Card Lottery). Conducted each year by the Department of State, an entrant who is selected under this program will be given the opportunity to apply for permanent residence. If permanent residence is granted, the applicant will be authorized to live and work permanently in the United States. Permanent resident status is also accorded to the spouse and minor children of the applicant.

Many unscrupulous companies have sprouted up which prey on persons who are hoping to win the lottery. Individuals should be very careful before paying money to a company that promises to help win the lottery. The entry procedures are very simple and the process of selection is highly random; there is no reason to pay hundreds of dollars to have someone prepare an application that consists of only one sheet of paper. An individual may prepare and file this him or herself for the cost of a piece of paper, an envelope, and postage. For more information, visit the State Department's Visa Lottery website