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There are many ways to obtain permanent residence status (the "green card") in the United States. Below, we outline several of those options:
With the Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA), many important immigration benefits are now available to same-sex couples and their children.
U.S. citizens may petition for their children who are under the age of 21, for their spouse, and for their parents under the immediate relative classification. The U.S. citizen child petitioning for a parent must be 21 years of age or over. An alien who was the spouse of a U.S. citizen at the time of the citizen's death is also considered an immediate relative. There are no limitations on the number of persons admitted as immediate relatives, and visas are always available.
U.S. citizens can also petition for their unmarried children over age 21 under the first preference and for their married children over age 21 under the third preference. U.S. citizens over age 21 can petition for their siblings under the fourth preference. There is a waiting list for visas to immigrate in these categories.
Sponsorship by Permanent Resident Relatives
Lawfully admitted permanent residents may petition for their spouses and for their unmarried children under the second preference. There is a waiting list for visas to immigrate in these categories. It is necessary for a permanent resident to become a U.S. citizen to be eligible to sponsor other relatives.
Same-Sex Couples and Immigration Benefits
G-4 Special Immigrant Applications
There are provisions under U.S. immigration law unique to G04 visa holders exclusively.
The G-4 Special Immigrant section of the Immigration and Nationality Act provides that certain G-4 visa holders who, while maintaining status as a G-4, have resided in the U.S. for specified periods can become permanent residents. The United States Citizenship and Immigration Services (USCIS) requires an applicant for G-4 special immigrant status file a petition (Form I-360) to establish eligibility. The I-360 petition can be filed as part of the adjustment of status application. If the individual is not filing an adjustment of status application, but is visa processing abroad, the Form I-360 is filed first with USCIS. Those eligible under these provisions include the following:
1. The unmarried son or daughter of an officer or employee, or of a former officer or employee, of an international organization who, while holding a G-4 visa or an N visa, has resided and been physically present in the U.S. for periods totaling at least one-half of seven years preceding the date of the application, and for a period or periods aggregating at least seven years between the ages of 5 and 21 years. Absence by the unmarried son or daughter while enrolled in school abroad will not be counted toward the physical presence requirement. The application for a visa or adjustment of status must be made no later than his/her 25th birthday.
2. The surviving spouse of a deceased officer or employee of an international organization who, while holding a G-4 visa or an N visa, has resided and been physically present in the U.S. for periods totaling at least one-half of seven years before the date of the application, and for a period or periods aggregating at least fifteen years before the date of the death of the officer or employee of an international organization. The petition must be filed no later than six months after the date of the death of the officer or employee.
3. A retired officer or employee of an international organization who, while holding a G-4 visa, has resided and been physically present in the U.S. for periods totaling at least one-half of the seven years before the date of the application and for a period or periods aggregating at least fifteen years before the date of the officer or employee's retirement is eligible for permanent residence. The spouse of the retiree is also able to become a permanent resident and is not required to hold a G-4 visa for these periods. However the spouse can not file independent of the principal G-4 retiring. The petition must be filed no later than six months after the retired officer or employee's date of retirement.
Same-sex spouses of retirees are now also eligible to obtain a green card by filing along with the retiree and are entitled to all of the benefits awarded to the opposite sex spouses.
"N" Visa Nonimmigrant Visa Status for Parents or Children of G-4 Special Immigrants
A nonimmigrant visa is available under the "N" visa category to the parent of a child who has obtained permanent residence under the G-IV special immigrant provisions, but only until the child reaches his or her 21st birthday. The "N" visa is also available to the child under the age of 21 of a parent who has obtained permanent residence under the G-IV special immigrant provisions or who has been granted an "N" nonimmigrant visa. The "N" visa includes permission to work although an employment authorization document must be obtained. The "N" visa is not available to the parents of U.S. citizen children born in the U.S. and under the age of 21.
NATO visa holders are also special immigrants
As with G-4 visa holders, certain NATO employees (NATO-6) are eligible to file for green cards if they meet the G-4 Special Immigrant Provisions.
Employer Petitions - PERM
When an employer sponsors a foreign national for permanent residence, he or she must show that the individual will not be taking a job from a U.S. worker. This is shown by obtaining a labor certification (PERM) from the U.S. Department of Labor. If the alien meets the qualifications for the job as stated in the PERM application and meets all other USCIS requirements, permanent residence status is granted.
Categories for employment-based immigration include the following: professionals with advanced degrees or the equivalent, or with exceptional ability in the arts, sciences, or business; professionals with bachelor's degrees and skilled workers performing jobs that require at least two years of experience; and unskilled workers performing jobs requiring less than two years of experience. PERM applications are required for these categories. After successfully obtaining an approved PERM application, the alien may apply for permanent residence and await the availability of a visa under the applicable preference classifications. When an immigrant visa becomes available, the alien can either adjust status to permanent residence at a USCIS office, if eligible, or obtain the visa through consular processing abroad, if eligible.
In addition there is the priority worker category for which a PERM application is not required. Priority workers include individuals with extraordinary ability in the arts, sciences, business, education, and athletics; outstanding professors and researchers with three years experience and international recognition; and certain multi-national corporate executives and managers employed overseas by a parent, subsidiary or branch of the petitioning U.S. employer.
Another category that does not require a PERM application is for aliens with advanced degrees in professional fields or of exceptional ability in the sciences, arts, or business whose employment would be in the national interest. Since there are no regulations defining national interest, the USCIS exercises discretion in determining whether benefits to the U.S. in such areas as business, medicine, science, culture, and education are sufficient to qualify for this category.
While the procedures for obtaining permanent resident visas based on a job and a PERM application or as a priority worker are complex, obtaining the visa is worth the effort: permitting the principal visa holder to work and stay indefinitely in the U.S., and qualifying to file taxes as a resident. Spouses and minor children can usually apply for permanent resident status with the sponsored alien.
There is a waiting list for visas for some employment-based categories. It will be necessary to obtain a valid nonimmigrant visa to stay in the U.S. during the application process and while waiting for an immigrant visa.
Registry is a procedure whereby an alien who has resided continuously in the U.S. since before January 1, 1972, and is not otherwise inadmissible, may obtain permanent resident status.
Diversity Visa Program
This program provides 55,000 diversity visas annually to natives of countries selected through a complicated formula based on the numbers of immigrants to the U.S. by country and region. Eligible countries will be designated by the State Department each fiscal year. The list of countries can be expected to change from year to year. To qualify under the diversity program, a foreign national must come from a designated country, have at least a high school education, or have worked at least two years in an occupation.
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