Immigrant Visas

In order to become a permanent resident, a foreign national must apply for an immigrant
visa petition. If the immigrant visa petition is based on employment, the foreign national
files an I-140, and must qualify for one of the employment-based visa categories. If the immigrant visa petition is based on a familial relationship, the foreign national files an
I-130 immigrant visa petition and must qualify for one of the family preference categories. Once the immigrant visa petition is filed, the individual receives a priority date, which
marks the place in line for a visa number. The immigration laws only allow for a
designated number of “visa numbers” each year for each preference category from
each country. Therefore, each month, the Department of State releases the visa
numbers for the following month, designating whether there are any available
immigrant visa numbers available, and if not, which priority dates are eligible to
receive a visa number and apply for permanent residence that month.

Each country is allocated a portion of the total visa numbers available, so if there are
too many individuals from one country applying under that category, their numbers will
not be current, and they must wait until a visa number is available for their country and
their preference category. Historically, individuals born in Mexico, the Philippines,
China, and India have been subject to waiting periods for visa numbers, depending on
their preference category.

Once a visa number is available, the individual may file an application for permanent residence, either through adjustment of status, or through consular processing abroad. Individuals whose visa category is “current” or where there is no wait for a visa, may
file the visa petition concurrently with the adjustment of status application upon
meeting the other eligibility requirements for adjustment of status.

Employment Based Categories

First Preference

This category is comprised of workers of extraordinary ability, outstanding professors and researchers, and multinational executives and managers.

Second Preference

To qualify for the second preference, an individual must have an advanced degree.
According to the USCIS, an “advanced degree” means any U.S. academic or professional degree or a foreign equivalent degree following a Bachelor’s degree. The equivalent of a Master’s degree is defined as a US Bachelor’s degree or a foreign equivalent degree
followed by at least five years of progressively responsible experience in the field. If a
doctoral degree is customarily required in the field, the applicant must have a US 
Doctorate degree or an equivalent foreign degree.

Third Preference

The third preference category is reserved for skilled workers, professionals, and other workers. The other workers category covers workers who are “capable of performing unskilled labor,” and who are not temporary or seasonal. Skilled workers must be capable of performing skilled labor requiring at least two years training or experience.

Fourth Preference

This visa category includes certain special immigrants, ministers, religious workers,
and former U.S. government employees.

Fifth Preference

The fifth preference visa category is reserved for qualified immigrants seeking to enter
the US to engage in a new commercial enterprise meeting certain investment criteria.
The amount of money the individual must invest in furtherance of the commercial
enterprise varies depending on which area of the country will benefit from the investment.
Each investor must employ at least 10 US workers. If the investor fails to meet the
conditions specified, he or she may lose permanent resident status.

Family Based Immigration Categories

The classifications below define the necessary familial relationships for immigrating to
the United States. It is important to note that even if there is some familial relationship
to either a US citizen or lawful permanent resident, but it does not fall under one of the
visa categories below, the foreign national will not be able to immigrate to the US based
on the relationship alone. For example brothers and sisters of permanent residents,
married children of permanent residents, or aunts and uncles of US citizens are not eligible to immigrate based on their familial relationship.

Immediate Relative

There are an unlimited number of visas available for those who qualify as immediate relatives of US citizens. Immediate relatives are defined as the spouse, child (under 21), or parent of a US citizen (if the US citizen is 21 years or older).

First Preference

To qualify for first preference, the individual must be the unmarried son or daughter
(21 years or older) of a US citizen. This category is comprised of US citizens’ children
who are grown and still unmarried.

Second (2A) Preference

To qualify for 2A classification, a foreign national must be the spouse or child (under 21)
of a lawful permanent resident.

Second (2B) Preference

The 2B preference category is reserved for the unmarried son or daughter (21 or older)
of a lawful permanent resident. It is important to note that if a son or daughter (21 or older) marries, he or she loses the ability to immigrate as there is no preference category available for married sons and daughters of permanent residents.

Third Preference

The third preference category is comprised of married sons or daughters (any age)
of US citizens.

Fourth Preference

The fourth preference visa category is reserved for the brother or sisters of US citizens.
To qualify, the US citizen who is petitioning for the relative must be at least 21 and both
siblings must at some time have been the children of one common parent.

Copyright © 2009 Law Offices of Melissa Harms All rights reserved.

The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their situation and to receive appropriate legal advice.