Applying for a Green Card or Permanent Residency & U.S. Citizenship

Do I Qualify for Permanent Residency or US Citizenship?

U.S. citizenship is automatically available to all persons who are born in the U.S. or through birth abroad to a U.S. citizen parent who meets certain specific criteria.  Foreign born persons may also become U.S. citizens through naturalization. In order to naturalize, the person must:

1. be age 18 years old or older
2. already be a U.S. permanent resident
3. prove continuous residence in the U.S. for at least 5 years (3 years for those who receive residency through marriage to a U.S. citizen) or be eligible for a waiver
4. physically present for at least 30 months in the U.S. (18 months if married to a U.S. citizen)
5. lived for at least 3 months in the state of residence
6. speak, read and write basic English and demonstrate an understanding of U.S. history or be eligible for a waiver of the requirements
7. signed up for selective service if a male between the ages of 18 and 26 when residency received
8. filed all tax returns and owe no taxes
9. owe no back child support or alimony
10. have no convictions which causes deportability
11. good moral character for the last 5 years, and
12. pay the $675 government filing fee.

Permanent Residency

Typically before applying for U.S. citizenship, the immigrant must first apply for and become a permanent resident.  The documentation to prove permanent residency is a permanent residency card.  Other terms for the same documentation are “green card” or “mica.” 

Working in the U.S.

Permanent residency allows the immigrant to work in the U.S. and take short visits outside the U.S.  It is however not U.S. citizenship; the person cannot vote, serve on a jury, apply for federal financial aid for college or apply for certain sensitive jobs which are available to only U.S. citizens.  Permanent residents may be removed or deported by  the U.S. immigration court after being convicted of certain crimes or if they abandoning their residency by leaving the U.S. for too long without permission or making their true home outside the U.S.

Military Enlistment

U.S. permanent residents are eligible to enlist in the U.S. military.  And according to Retired Lt. Colonel of the US Army Reserve and former Professor at the U.S. Military Academy at West Point Margaret D. Stock who is now with the Immigration Policy Center, as of 2009 there were “114,601 foreign born persons” serving in our military, which is “7.91 % of the active duty personnel.” 

Permanent residents are not required to apply for U.S. citizenship and may remain in the U.S. for a lifetime as a permanent resident because the status does not expire.  With limited exceptions, the permanent resident must be a resident nearly 5 years before applying for citizenship.  There are shorter waiting periods for minor children of U.S. citizens, spouses of U.S. citizens, spouses of U.S. government employees and U.S. missionaries living abroad, and for active duty military personnel through Wartime Military Naturalization.

Applying for a Green Card

There are a number of programs for foreign born individuals to apply for permanent residency. Many people are not eligible for any of these programs.  Also, if the immigrant has immigration violations or criminal convictions it can prevent the person from immigrating even if residency is currently available.  Older programs for permanent residency are (1) Registry, (2) Special Agricultural Workers, and (3) NACARA. 

Registry

Registry is a section of immigration law that enables certain individuals who have been present in the United States since January 1, 1972 the ability to apply for a green card (permanent residence).  Even if they are currently in the United States unlawfully, they may still be eligible to receive a green card (permanent residence) under the registry provisions if all the conditions are met:

1. Entered the United States prior to January 1, 1972;
2. Resided in the United States continuously since January 1, 1972;
3. Good moral character;
4. Not ineligible for naturalization (citizenship);
5. Not removable (deportable) under Section 237(a)(4)(B) the Immigration and Nationality Act (INA);
6. Not inadmissible under Section 212(a)(3)(E)of the INA or as a criminal, other immoral person, subversive, violator of the narcotics laws or alien smuggler. 

Registry is still available to those who qualify.

Cuban Refugee Adjustment

Cubans receive a special residency program that is currently open-ended and has no deadline for filing.  Any Cuban or a spouse, parent or minor child living with a Cuban citizen in the U.S. can apply for permanent residency without leaving.  The spouse, parent or child living with the Cuban citizen in the U.S. can be from any other country and still apply.

Family Immediate Relatives

Immigrating through immediate family members is the most common route of receiving permanent residency in the U.S.  There is unlimited availability for immediate relatives of U.S. citizen such as a spouse, minor child or parent of a citizen is age 21. And in 2009 the Department of Homeland Security reported 535,554 immediate relatives became permanent residents.  Recently, widows and widowers of U.S. citizens who did not complete the process before their U.S. spouse died were granted the opportunity to apply for permanent residency. 

U.S. citizens may also adopt foreign born children and these children are eligible for permanent residency and automatic U.S. citizenship upon approval for residency.  The adoption regulations are complex and controlled by the Hague Convention on Intercountry Adoption.  Recently a number of states have recognized civil unions and marriages for same sex couples and the Obama administration is no longer supporting enforcement of The Defense of Marriage Act which prevented immigration through same sex spouses so we are watching closely for changes to this program.

Family Preference Relatives

In addition to immediate relatives, each fiscal year beginning October 1, the Department of State allows approval of up to 226,000 preference relatives to receive permanent residency in the U.S.  Preference relatives are adult children of U.S. citizens, spouses and unmarried children of U.S. permanent residents, and brothers and sisters of U.S. citizens age 21 or older. 

The 226,000 residencies are divided among 5 preference categories and within each category no country may send more than 7% of the category.  Preference relatives wait a very long time to file for residency after the initial petition is filed.  The temporary V-visa was provided for permanent residents to bring their spouse and unmarried children under age 21 to the U.S. to be reunited while waiting to apply for residency, however the initial petition had to have been filed before December 22, 2000, the spouse or child had been waiting 3 years since filing the petition and the visa was not available.  Adult children of Mexican citizenship who were over the age of 21 were not eligible for the V-visa so as of April 2011, they have been waiting in line nearly 20 years to apply for residency.  

Employment

The U.S. greatly limits the number of permanent residents through employment.  Only 140,000 a year are allowed and the bulk of the available number is taken up by the spouses and children of the workers. 

There are three main categories, for employment based permanent residency; First, Second and Third priority workers and each category receives 40,000 per fiscal year beginning October 1 of each year. Only 7% of each category can go to any one country. 

First Priority

The First category is made up of multi-national executives, outstanding professors or researchers and immigrants who possess extraordinary ability in the sciences, arts, education, business or athletics. This category is currently available and there is no waiting before filing the initial petition and residency.

Second Priority

The Second category are those who (1) possess exceptional ability in the sciences, arts, or business, or (2) at minimum a master’s degree, the proposed employment requires a master’s degree, and there are no qualified U.S. workers to fill the job, and (3) qualified medical doctors who will practice in an underserved area of the U.S.  The Second category is currently available for those who are not from China and India.  According to the April 2011 visa bulletin, people from China and India must have an application on file before July or May 2006 respectively. 

Third Priority

The Third category are skilled or professional workers where the job requires either a minimum of 2 years experience to perform or a minimum of a bachelor’s degree and the employer proves there are no qualified U.S. workers to fill the job.  For the Third category, there is no residency available unless the employer filed the initial application more than 7 or 8 years ago. 

Refugees and Asylum

The U.S. provides refuge to persons who have been persecuted or have a well-founded fear of persecution through two programs, for refugees outside the US and for asylees inside the U.S. 

According the Department of Homeland Security, in 2008 74,602 persons were admitted as refugees, the majority from Iraq, Burma, and Bhutan.  An applicant for asylum in the U.S. must apply within 1 year of coming to the U.S. and show they are unable or unwilling to return because of persecution or a well-found fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. They could not move to another part of the country of nationality to avoid persecution and there is no other safe third country where they could settle. 

During 2007 to 2009 the majority were from China, Ethiopia, Haiti, Colombia and Iraq.  The asylum interview is typically within 12 months of filing the application and if approved after the interview the person, can apply for residency after an additional 1 year.   

If denied after the interview, the person is referred to immigration court for removal or deportation and can reassert their asylum case there.  In 2009, 11,933 persons were granted asylum after their immigration interview and 10,186 were granted asylum defensively by an immigration judge during removal or deportation court.  Immigration Courts vary widely on whether asylum cases are approved with some judges having less than 5% approval the median with about 50% approval and a select few with 85% approval.  For our location, it is taking years for trial dates to become available.  The process can take a minimum of 8 years but more likely closer to 10 years.

Cancellation Relief from Removal in Immigration Court

Application is made by a non-permanent resident with a spouse, parent or child who is a U.S.C or LPR and must prove unusual hardship to the relative if not allowed to remain in the U.S.  The standard for winning Cancellation of Removal is very burdensome so most cases lose.  In 2009, the Department of Homeland Security reports 8,156 individuals received permanent residency through Cancellation of Removal.

Diversity Visa Lottery

There are 50,000 permanent residency immigrants from low-immigrating countries are each year.  Citizens of Brazil, Canada, China, Colombia, Domincan Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom and Vietnam are not eligible.  Applicants must be citizens of other countries, be a high school graduates or have 2 years vocational training/education in an occupation that requires at least 2 years training or experience to perform. The U.S. government website allows individuals to enter into the lottery for no cost at its website each October. 

Those chosen living outside the U.S. apply for a visa at the U.S. consulate.  Persons chosen who are lawfully in the U.S. may apply for residency in the U.S. The residency visa must be approved and issued during the same fiscal year selected.  This is one of the faster ways to receive permanent residency but only for the lucky few who qualify, are selected and manage to finish the process during the same fiscal year selected.

The Violence Against Women Act (VAWA)

This program is for victims of domestic violence, battery or extreme cruelty where the abuser is a U.S. citizen or permanent resident spouse, parent or child.  Often an abuser uses withholding of legal immigration sponsorship as a tool for abuse.  The U.S. government recognizes Iowa’s common law marriages where there is no formal marriage certificate when a couple holds themselves out to others as a married couple and therefore the foreign-born person can still claim eligibility under VAWA. One major benefit of the VAWA permanent residency is it allows processing within the U.S. for persons who would normally be required to process in the country of citizenship. 

Special Immigrant Juvenile Status

In order to qualify for SIJS, a juvenile court in the U.S. must have declared the child a court dependent, or have legally committed the child to a state agency or department. The court must have found the child "eligible for long-term foster care" (which in this context means that parental reunification is not possible), and that it is not in the child's best interest to be returned to the home country. The child should have proceeded to long-term foster care, adoption, or guardianship and the court must have made its findings based on the abuse, neglect or abandonment of the child.  The child, a social worker, or an attorney can file the application for residency.

Victims of Violent Crimes

U visa offers protection to victims of crimes who step forward to assist law enforcement investigate and prosecute cases of domestic violence, sexual assault, trafficking and other crimes.  A member of law enforcement, a prosecutor, or a Judge must complete part of the application showing the helpfulness of the victim.  The U-visa allows the victim to also apply for their minor children and if the victim is under age 21, their unmarried siblings and parents.