To Be or Not to Be a Resident…

Most people start their process of immigration to the U.S. by getting an employment visa. This is a visa, not permanent residence. Employment visas usually have a time limit of 6 or 7 years. If you are not a resident by that time, you need to leave, it is a firm “goodbye”. You can apply to re-enter on a tourist visa, but you will need to be outside the country for at least a year. If you wish to remain in the U.S., you need to start working on your residence at least three years before your working visa expires, as it can take up to two and a half years to get it. The most important thing to remember is that you need a valid visa to remain in the U.S. legally as the process of applying for residence gives you “ZERO PROTECTION.” The big question is: How do I get my green card? And I respond: It’s not green, it’s pink and it means you are a lawful permanent resident, i.e. you live here. This is not a visa to enter and exit the country. If you are out more than 8 months, you lose it. If you live in Peru for 6 months and are in the U.S. 6 months, you are not a permanent resident.

I am often asked: “What are the benefits of becoming a permanent resident?

Well, you can stay for as long as you like and you will get a break for all the taxes you pay after 40 quarters. It can lead you to citizenship. Your children get to pay college as residents and not as foreign students. Your spouse and children can work. However, you do not receive social security benefits or Medicare until you have worked 40 quarters or become a citizen.

There are seven ways to become a lawful permanent resident:

1. You can be granted asylum. The grounds for asylum are that you have suffered harm as the result of political, religious, racial or social persecution by an entity known to the government, and from which the government cannot protect you. There is no asylum for economic persecution. Once you are granted asylum, you then need to wait for a visa number to be assigned to you in order to adjust your status.

2. An immediate relative can petition for you, however, there are waiting periods for each type of petition. A U.S. citizen can petition for a spouse, parent or children under 21 with no waiting period. A U.S. sister can petition for you, but you will wait 15 years. If a U.S. citizen petitions for a married son, the wait is over 8 years. However, it’s called the “Grandma Visa” as the spouse and children all get residence. This is a one-step process, which can be done cheaply and quickly at a consulate or here in the U.S.

3. You can win the lotto and then pray your number comes up.

The next three classifications are two-step processes. First, you must prove you meet the requirement and then you and your entire family must prove that there is no reason to exclude you.

4. You can apply as a religious minister. This is subject to the church proving it has the financial ability to pay a salary.

5. You can prove that you have exceptional abilities.

6. You can be transferred as a multinational executive.

The last classification is the most commonly used and is a three-step process. First, there is an application to the Department of Labor, then one to USCIS and finally, you and your entire family must prove that there is no reason to exclude you.

7. You can apply for a labor certification. This means a company desires to hire you in a permanent position, which requires at least 2 years of training. The company recruits for several months and if no suitable candidates are found, the reduction in recruitment request is filed with the Department of Labor. They process the labor certification fairly quickly. A petition is then filed with I.N.S. to prove that the company has the money to pay the salary of the alien and that the alien has the qualifications. Finally, you and your entire family must prove that there is no reason to exclude you.

Our lawyers practicing in this area include: