I. All aliens in the U.S. are either nonimmigrants or immigrants.

A nonimmigrant is an alien who is in the U.S. for a temporary purpose and who intends to return home upon completion of the temporary activities. Nonimmigrants include students (F-1 visa), exchange visitors such as students and research scholars (J-1 visa), temporary workers in specialty occupations (H-1B visa), tourists (B-2 visa) and many other categories of aliens in the U.S. temporarily.

An immigrant . . . officially known as a lawful permanent resident . . . is an alien who is permitted to remain in the U.S. indefinitely. Immigrants are in possession of a "green card" (which is no longer green), designated Form I-551, and may engage in employment without special permission. In most respects immigrants are treated like U.S. citizens and are eligible for most government benefits available to U.S. citizens. Immigrants are able to apply for U.S. citizenship after residing here permanently for 5 years (3 years if married to a U.S. citizen).

II. The Immigration and Nationality Act authorizes the issuance of immigrant visas to aliens who qualify in one of several categories. These categories include family-sponsored alien preferences, employment-based alien preferences and diversity and other aliens. They are explained in detail on the accompanying sheet.

III. Even though an alien may be qualified for one of the preferences, an immigrant visa in that preference may not be immediately available. In other words, there may be more people who are qualified for visas in particular preferences than there are available visas. This leads to a waiting period, which can be very lengthy for these individuals. Furthermore, there is a per-country limit for preference immigrants set at 7% of the total annual family-sponsored and employment-based limits and a limit of 2% that can be allocated to natives of any one dependent territory.* This may cause the backlog of available visas to be greater (and the waiting period longer) for aliens from particular countries in particular preferences.

IV. A U.S. citizen or permanent resident files a family-sponsored relative petition. If the alien beneficiary is in the U.S. and an immigrant visa is currently available, that individual (and spouse and dependent minor children) generally may apply for adjustment of status to lawful permanent resident at the same time. If the alien beneficiary is outside the U.S., the U.S. Embassy or Consulate designated in the petition will notify the individual when and how to apply (with family members) for an immigrant visa.

V. Outstanding professors and researchers sponsored by their employer may qualify in the 1st employment-based category.

VI. Obtaining an Alien Employment Certification (labor certification) for a permanent position is a prerequisite to a petition for most 2nd and all 3rd employment-based preferences. The labor certification process is complicated and time-consuming, governed by intricate federal regulations. Generally, aliens can be certified only if there are no qualified U.S. citizen or permanent resident applicants who emerge from a legitimate professional search conducted in cooperation with the State Workforce Agency. College and university teachers are treated specially; they can be certified if they are the best qualified applicants who emerge from a legitimate search. If it is determined that it is in the “national interest” of the U.S. for an alien to be granted permanent residence, the job offer and the labor certification requirements can be waived; the standard for this waiver is very high.

A labor certification, by itself, does not change a person's immigration status. A labor certification is granted by the U.S. Department of Labor; immigration decisions are made by the U.S. Citizen and Immigration Service, a division of the U.S. Department of Homeland Security. In other words, a labor certification does not entitle an alien to remain in the U.S., to enter the U.S., to undertake employment or to continue employment.

VII. After a labor certification is obtained, the prospective employer files an immigrant petition. For an individual in the 1st employment-based category or an individual in the 2nd employment-based category for whom a job offer has been waived in the national interest, either an employer or an individual may file the immigrant petition. If the alien beneficiary is in the U.S. and an immigrant visa is currently available, the individual (and spouse and dependent minor children) may apply concurrently for adjustment of status to lawful permanent resident. If the alien beneficiary is outside the U.S., the U.S. Embassy or Consulate designated in the petition will notify the individual alien when and how to apply (with family members) for an immigrant visa.

VIII. With certain exceptions, a nonimmigrant alien who has filed an application for adjustment of status to lawful permanent resident should not leave the U.S. while the application is pending. As an intending immigrant, the individual generally can not be readmitted to the U.S. in a nonimmigrant visa classification. That individual must obtain an immigrant visa at a U.S. Consulate. Since this may take many months (or years if a visa is not currently available), leaving the U.S. during the pendency of an application for adjustment of status without having obtained "advance parole" (permission to return) will significantly disrupt the life of the alien and his or her family members. Exception for aliens with "advance parole": An alien may apply to the U.S. Citizen and Immigration Service for special permission to return to the U.S. while the permanent resident decision is pending, in cases of emergent personal or bona fide business reasons. An alien returning to the U.S. with "advance parole" may be employed only pursuant to an Employment Authorization Document issued by the U.S. Citizen and Immigration Service. Exception for aliens in the H-1B visa classification: An alien who has filed for adjustment of status to permanent resident, has a valid unexpired H-1B visa in his or her passport and whose period of authorized stay in the H-1B visa classification extends beyond the date of return may leave the U.S., re-enter as H-1B and resume his or her prior employment as an H-1B visa holder. An alien in the H-1B visa classification who does not have a valid unexpired H-1B visa stamp in his or her passport but whose H-1B Approval Notice will still be valid on the date of return to the U.S. must return with "advance parole" but may resume the same H-1B employment pursuant to the Approval Notice.

IX. Aliens (with a few exceptions, such as those who are immediate relatives of adult U.S. citizens) who are not in lawful nonimmigrant status or who were employed without authorization or who have otherwise violated the terms of their nonimmigrant visa are not eligible for adjustment of status (becoming a permanent resident while remaining in the U.S.). They are eligible for permanent residence, however, through the process of obtaining an immigrant visa at a U.S. consulate abroad. In other words, aliens who have ever been out of status (such as by being less than full-time students, by working beyond what their visa classification permitted or by remaining in the U.S. after their authorized stay expired) may become permanent residents only by departing the U.S. and applying for an immigrant visa at a U.S. consulate. This process, which takes several months inevitably causes great expense and inconvenience to the intending immigrant and his or her family members, including the possibility of losing a job or job opportunity. Consequently, it is extremely important for aliens seeking permanent residence to remain in lawful status throughout the period of time spent in the U.S.

X. Examples

(1) Mr. A is a Brazilian student in the U.S. whose brother is a U.S. citizen. The brother filed a relative petition for Mr. A in 2001. Mr A is determined to be in the 4th family-sponsored preference. When Mr. A receives his Ph.D. in 2008, there is still a 9-year waiting list for this preference. Unless Mr. A is able to change to another nonimmigrant visa classification, he must leave the U.S. and wait until an immigrant visa is available, at which time he applies for the visa at a Consulate in Brazil.

(2) Ms. B is a Japanese student in the U.S. In the final year of her doctoral studies she is offered a position of Assistant Professor to begin after she receives her Ph.D. Since she has not yet been granted tenure, the institution hiring her successfully petitions for an H-1B visa on her behalf. The petition is approved, she is granted a change of nonimmigrant visa classification and she begins work. Several months later her employer applies for an Alien Employment Certification (labor certification) on her behalf and it is granted. The employer then files a petition for the 2nd employment-based preference and Ms. B applies for adjustment of status. When the petition and the application are approved, Ms. B becomes a permanent resident while remaining in the U.S. If Ms. B is not in lawful status in the U.S. when an immigrant visa becomes available, she must leave the U.S. and apply for the visa at a U.S. Consulate in Japan. Her position, on which the labor certification and employment-based petition were granted, must be kept available in order for her to be able to be eligible to be issued the immigrant visa and re-enter the U.S. as a permanent resident.



IMMIGRATION PREFERENCES (CATEGORIES)

Family-sponsored categories

Immediate relatives of adult U.S. citizens [no limitations]
Spouses, unmarried minor children, parents

1st Preference [23,400]
Unmarried children of U.S. citizens

2nd Preference [114,200]
Spouses and minor children of permanent residents [87,934]
Unmarried children of permanent residents [26,266]

3rd Preference [23,400 minimum]
Married children of U.S. citizens

4th Preference [65,000 minimum]
Brothers and sisters of adult U.S. citizens

All Preferences [226,000]

Employment-based categories

1st Preference [40,040]
Priority workers - no labor certification needed
Aliens of extraordinary ability
Outstanding professors and researchers
Multi international executives and managers

2nd Preference [40,040]
Professionals with advanced degrees
Aliens of exceptional ability

3rd Preference [40,040]
Skilled workers
Professionals with baccalaureate degrees
Unskilled workers in short supply [10,000]

4th Preference [9,940]
Ministers of religion
Religious workers [until September 30, 2008]
Certain others

5th Preference [9,940]
Investors (at least $1,000,000, create employment for at least 10 U.S. workers; 3000 of these visas are reserved for aliens who create employment in targeted rural or high unemployment areas and 3000 for aliens who are investors in regional centers)

Diversity and other immigration categories

* Some visas that are unused in particular preferences may be used by certain other preferences. This results in slight variations in the per-country limits from year to year.

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