Green Card

Q: What is the shortcut to get a green card? (Question from a visitor)

Ans: There is a lot of detailed background needed to answer all of your questions, but I will give you some quick response here, and we can follow up as needed.

The short answer to your question is that there is no "short cut" as such in U.S. immigration law.  All of the pathways to permanent residence and citizenship have very specific requirements and timelines.  While some are more direct that others, none are quick or easy.

Let me first answer the question about how long it takes before an H-1B visa-holder can apply for a green card. There is no restriction, and if you employer is willing to start the paperwork, you could start the paperwork the day after you receive your H-1B visa approval.  Indeed, that is one of the primary reasons people choose the H-1B pathway, you can move to the green card application at any time, and remain working in the U.S. while doing so.

For most people, obtaining the employerʻs support is the main issue. Be clear that the most important single thing you can do to speed up the green card process is to find a supportive employer. It is possible to waste years of opportunity time with an employer who is not, in the end, willing to support your application.  No employer support generally means no employment-based visa.

It sounds like your friend is referring to the EB1 visa category, which does indeed get permanent residence for employees.  However, there is a wait for approval, and another wait for an approved application to be assigned an immigrant visa under the quota system. It is quite likely that you would run through your present visa status while waiting for your green card, and yes, that would likely mean returning home to wait.

Also, you should be aware that having a PhD is not the sole criteria for the EB1, for more specific info there is a chart on the USCIS website, click here .

Once you read through the chart you will see that the EB1 category is not typically available to recent graduates.  The one exception to that would be if you are truly an outstanding researcher and a university is willing to employ and sponsor you through the EB1 process.

As far as government jobs go that is also complicated.  As you know, we have a federal system of government here in the U.S., and each level of government has its own job categories and policies.  If you are interested in government work, you will need to master the framework of the Federal, State and Local systems.  It is true that many government employers do not sponsor visas, but often this is not due to any restriction on your Employment Authorization Document, but an unwillingness on the part of the government agency to take on responsibility for the visa process.

An interesting exception to this is the Department of Defense (DOD).  Although you might think they would not hire internationals due to some issue of national security, in fact they hire plenty.  They even have a specific exemption from the H-1B visa quota for DOD workers in the H-1B rules.

Ways to get a Green Card

• Employment Based
• Family Based
• Refugee or Asylee
• Diversity Visa(Lottery)
• Other Ways
• Dual Intent

Green Card (Permanent Residence) through employment

Overview: Immigration and Nationality Act(Section 201) sets 140,000 employment-based immigrant visas to qualified applicants. Each country is limited to receive 7% of the quota(9,800). Employment based immigrant visas are divided into five preference categories. EB-1, EB-2 and EB-3 categories each receive 28.6% of the annaul visa quota, EB-4 and EB-5 each receive 7.1%.

Spouses and unmarried children younger than 21 may accompany or follow-to-join employment-based immigrants. 

Employment First Preference (EB-1): Priority Workers
Labor certification is not required. There are three sub-groups within this category:

• Extraordinary Ability: Persons with extraordinary ability in the sciences, arts, education, business, or athletics.
• Outstanding Professors and Researchers: Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally.
• Multinational Manager or Executive: Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer.

Application Process: 

1.    Extraordinary Ability: applicant may petition for yourself by filing a Form I-140, Petition for Alien Worker.

2.    Outstanding Professors and Researchers: employer must file a Form I-140, Petition for Alien Worker.

3.    Multinational Manager or Executive: employer must file USCIS Form I-140, Petition for Alien Worker.

Employment Second Preference (EB-2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
Labor certification is generally required unless applicant can obtain a national interest waiver. Employer or self-petitioner must file a Form I-140, Petition for Alien Worker. There are three sub-groups within this category:

• Advanced Degree: The job offer must require an advanced degree and the applicant must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).Labor certification from DOL is required.
• Exceptional Ability: applicant must demonstrate a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
• National Interest Waiver: The Labor Certification can be waived because it is in the interest of the United States. National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national. The applicant could self petition without employer.

Employment Third Preference (EB-3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
Labor certification and a permanent, full-time job offer required. Employer must file a Form I-140, Petition for Alien Worker. There are three sub-groups within this category:

• Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
• Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.
• Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.

Employment Fourth Preference (EB-4): Certain Special Immigrants
Labor certification is not required. Applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad

There are many sub-groups within this category, including

• Religious Workers
• Broadcasters
• Iraqi/Afghan Translators
• Iraqis Who Have Assisted the United States
• International Organization Employees
• Physicians
• Armed Forces Members
• Panama Canal Zone Employees
• Retired NATO-6 employees
• Spouses and Children of Deceased NATO-6 employees

Employment Fifth Preference (E5): Immigrant Investors
Labor certification is not required. Generally the minimum qualifying investment in the United States is $1 million. The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000(Targeted Employment Area). The investment in a commercial enterprise in the United States must creates at least 10 new full-time jobs for U.S. citizens, permanent residents, or other lawful immigrants, not including the investor and his or her family.

Applicant must file an Immigrant Petition by Alien Entrepreneur, Form I-526, with USCIS

Main ways of Employment Green Card:

• Green Card Through a Job Offer: Most categories require an employer to get a labor certification and then file a Form I-140, Immigrant Petition for Alien Worker.
• Green Card Through Investment: investors/entrepreneurs who are making an investment in an enterprise that creates new U.S. jobs.
• Green Card Through Self Petition: “Aliens of Extraordinary Ability” or certain individuals granted a National Interest Waiver.
• Green Card Through Special Categories of Jobs: require a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. The jobs include Afghan/Iraqi Translator, Broadcaster, International Organization Employee, Iraqi Who Assisted the U.S. Government, NATO-6 Nonimmigrant, Panama Canal Employee, Physician National Interest Waiver, Religious Worker

Green Card Through a Job Offer Process 

1.    The applicant's employer must first obtain a labor certification approval from the Department of Labor.

2.    Once received (if required), the employer then files an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category.

3.    If You Are Living Outside the United States You can become a permanent resident through consular processing when living outside the United States. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-140 petition when a visa is available.

4.    f You Are Living in the United States You can become a permanent resident through adjustment of status when living inside the United States. Once the I-140, Immigrant Petition for Alien Worker, is approved and a visa number is available you can apply on Form I-485, Application to Register Permanent Residence or Adjust Status, to become a permanent resident

Family Green Card

Overview: Immigration and Nationality Act(Section 201) sets 226,000 family-based immigrant visas to qualified applicants. Each country is limited to receive 7% of the quota. Family based immigrant visas are divided into four preference categories. Immediate relatives of U.S. citizens have special immigration priority and are not limited by the annual visa quota.

Family Based Green Card Preferences 
Preference categories apply to family members who are not immediate relatives. The visas alloted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed).

1.    First preference(F1): Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older): 23,400 plus any numbers not required for fourth preference.

2.    Second preference(F2): Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

o    A. (F2A) Spouses of green card holders, unmarried children (under 21) of permanent residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

o    B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

3.    Third:(F3) Married Sons and Daughters (any age) of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

4.    Fourth:(F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

Family Green Card Qualification: People may be eligible to get a Green Card as

• an immediate relative of a U.S. citizen, this includes spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older,
• a family member of a U.S. citizen fitting into a preference category, this includes unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. citizen petitioners 21 or older
• a family member of a green card holder, this includes spouses and unmarried children of the sponsoring green card holder
• a member of a special category, this can include battered spouse or child (VAWA), a K nonimmigrant, a person born to a foreign diplomat in the United States, a V nonimmigrant or a widow(er) of a U.S. Citizen

If you are fiance of U.S. Citizen, and intend to marry within 90 days of entering the United States, you are qualified for Fiancé(e) Visa. After admission, you may immediately apply for permission to work by filing a Form I-765, Application for Employment Authorization.

Green Card for an Immediate Relative of a U.S. Citizen Immigration law allows U.S. citizens to petition for certain qualified relatives to come and live permanently in the United States. Immediate relatives have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate because there are an unlimited number of visas for their particular categories.

Eligible immediate relatives include the U.S. citizen’s:

• Spouse
• Unmarried child under the age of 21
• Parent (if the U.S. citizen is over the age of 21)

Green Card for a Family Member of a U.S. Citizen If your relationship does not qualify you as an immediate relative of a U.S. citizen, then people may be in what is called a “family preference category.” Congress has limited the number of relatives who may immigrate under these categories each year so there is usually a waiting period before an immigrant visa number becomes available.

Eligible relatives include:

• Unmarried sons or daughters over the age of 21
• Married child(ren) of any age
• Brothers and sisters (if the U.S. citizen petitioner is over the age of 21)

Green Card for a Family Member of a Permanent Resident(Family 2nd Preference category)
A permanent resident may petition for his/her spouse and unmarried child(ren) of any age to immigrate to the United States. Congress has limited the number of relatives who may immigrate under these categories each year so there is generally a waiting period before an immigrant visa number becomes available.

Green Card Through Special Categories of Family
You may be able to become a permanent resident (get a green card) through a special family situation. These adjustment of status programs are limited to individuals who meet particular qualifications and/or apply during certain time frames.

• Battered Spouse or Child (VAWA)
• K Nonimmigrant (includes fiancé(e))
• Person Born to a Foreign Diplomat in the United States
• V Nonimmigrant
• Widow(er) of a U.S. Citizen

Green Card Through Refugee or Asylee Status

Overview: A refugee is someone who is located outside of the United States, is of special humanitarian concern to the United States, demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group and is not firmly resettled in another country, is admissible to the United States.

Asylum may be granted to people who are already in the United States and are unable or unwilling to return their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. If you are granted asylum, you will be allowed to live and work in the United States.

The only difference between asylum status and refugee status is the placea person asks for the status: asylum is asked for in the United States while refugee status is asked for outside of the United States.

If you are admitted to the United States as a refugee or a qualifying family member of an asylee, then you are required by law to apply for green card(permanent residence), 1 year after your entry into the United States.

If you are granted asylum in the United States, then you may apply for green card(permanent residence), 1 year after the grant of your asylum status.

Diversity Visa (DV) Program, Green Card Lottery

Overview: The congressionally mandated Diversity Immigrant Visa Program makes available up to 55,000 diversity visas (DVs) annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States.

The lottery is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). 

Statistics: Applicants registered for the DV-2010 program were selected at random from over 13.6 million qualified entries received during the 60 day application period that ran from noon on October 2, 2008, until noon, December 1, 2008. 

Important Development
On July 21, 2011, the House Judiciary Committee approved the Security and Fairness Enhancement (SAFE) for America Act (H.R. 704), a bill that eliminates the diversity visa program. This program is plagued by fraud and is an open door for terrorists. The bill, sponsored by Intellectual Property Subcommittee Chairman Bob Goodlatte (R-Va.), was reported favorably to the House floor by a vote of 19-11.

Ineligible countries
Those born in any territory that has sent more than 50,000 immigrants to the United States in the previous five years are not eligible to receive a diversity visa.

For DV-2013, natives of the following nations are ineligible: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. The entry period to apply for the DV-2013 is from October 4, 2011 to November 5, 2011.

False and Scam
There is no charge to enter the diversity visa lottery, and the only way to do so is by completing and sending the electronic form available at the U.S. Department of State's website during the registration period. However, there are numerous companies and websites that charge a fee in order to complete the form for the applicant. The Department of State and the Federal Trade Commission have warned that some of these businesses falsely claim to increase someone's chances of winning the lottery, or that they are affiliated with the U.S. government

There have also been numerous cases of fraudulent emails and letters which falsely claim to have been sent by the Department of State and that the recipient has been granted a Permanent Resident Card.

Other Ways to Get a Green Card

Overview: There are many different ways to get permanent residence(green card) other than employment based green card and family based green card.

More Ways to Get a Green Card

• Amerasian Child of a U.S. Citizen
• American Indian Born in Canada
• Armed Forces Member
• Cuban Native or Citizen
• Diversity Immigrant Visa Program
• Haitian Refugee
• Help HAITI Act of 2010
• Indochinese Parole Adjustment Act
• Informant (S Nonimmigrant)
• Lautenberg Parolee
• Legal Immigration Family Equity (LIFE) Act
• Person Born to Foreign Diplomat in United States
• Registry
• Section 13 (Diplomat)
• Victim of Criminal Activity (U Nonimmigrant)
• Victim of Trafficking (T Nonimmigrant)

Green Cards through Special Categories of Jobs

• Afghan/Iraqi Translator
• Broadcaster
• International Organization Employee
• Iraqi Who Assisted the U.S. Government
• NATO-6 Non-immigrant
• Panama Canal Employee
• Physician National Interest Waiver
• Religious Worker

Green Cards through Special Categories of Family

• Battered Spouse or Child (VAWA)
• K Non-immigrant (includes fiancé(e))
• V Non-immigrant
• Widow(er)

Doctrine of Dual Intent for Green Card

Overview: Doctrine of Dual Intent generally refers to the fact that certain U.S. visa categories allow foreigners to properly maintain lawful non-immigrant status in the U.S. and keep intention to immigrate(seek permanent residence(green card)) in the future.

The Immigration and Naturalization Act (INA) of the United States states under Section 214b that: Every alien (other than a non-immigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15). 

In fiscal year 2008, the State Department rejected 2.1 million visa applications, about 70% of them(1.5 million) were denied based on presumption of immigrant intent.

Presumption of immigrant intent does not apply to all non-immigrant visa categories.

• Visa categories that have immigrant intent provisions: B, E, F, J, M, O-2, P, Q, and TN
• VIsa categories that do not have immigrant intent provisions: A, C, D, G, I, K, N, O-1, R, S, T, and U
• Visa categories that are excluded from the immigration intent requirement: H-1, L and V

Doctrine of Dual Intent allows visa holders to enter the U.S. while simultaneously seeking lawful permanent resident status (green card status). Otherwise, visa holders may be presumed to have immigrant intent and can be kept from entry (summarily excluded) as a matter of law.

Persons with H-1B visas (for specialty workers and their spouses and minor children with H-4 visas), K visas (for fiancees or foreign spouses of US citizens and their minor children), L visas (for corporate transferees & their spouses and minor children), and V visas (spouses and minor children of lawful permanent residents) are permitted to have dual intent under the Immigration and Nationality Act. Federal regulations also appear to recognize dual intent O visas (for workers who have extraordinary ability and their spouses and minor children), P visas (for athletes, artists or entertainers and their spouses and minor children), and E visas (for treaty traders or treaty investors and their spouses and minor children).

Most other foreign visitors and workers, like those on H-2B worker, H-3 trainee/worker, B-1 business, B-2 tourist, VWP visitor, F-1 student, J-1 exchange visitor, M-1 student, journalism, and entertainer visas should not have immigrant intent.

*this is upto my knowledge, please correct me, if you have better information.