Application Categories

There are two types of qualifying family relationships: Immediate relatives and Preference relatives.

Immediate Relatives include:

1. Spouses of US citizens
2. Unmarried children under 21 years of age of US citizens
3. Parents of US citizens if the citizen is at least 21 years of age

There is no limit to the number of green cards available to immediate relatives of US citizens in any given year. That means the foreign relatives can obtain a green card as soon as their application is processed.

Spouses of deceased US citizens may also be considered immediate relatives provided that:

1. They had been married to each other at the time of the US citizen's death,
2. They were not legally separated at the time of the US citizen's death,
3. The foreign spouse filed a new petition within 2 years of the US citizen's death, and
4. The foreign spouse has not remarried.

Preference Categories include:

1. First Family-Based Preference, which covers unmarried sons and daughters over 21 years of age of US citizens,
2. Second Family-Based Preference, which covers spouses and unmarried children of green card holders,
3. Third Family-Based Preference, which covers married sons and daughters of US citizens, and
4. Fourth Family-Based Preference, which covers brothers and sisters of US citizens if the US citizen is at least 21 years of age.

Family-based preference relatives are subject to annual numerical limitations. That means the foreign relatives cannot apply for a green card until their priority date becomes current.

Application Process

Applying for a green card based on a family relationship is generally a 2-step process: the I-130 relative petition and the application for a green card.

Step 1: I-130 Relative Petition

A sponsoring relative files an I-130 relative petition on behalf of a foreign relative. The purpose of this petition is to prove the qualifying family relationship between the sponsor and their foreign relative.

Step 2: Green Card Application

Once the relative petition is approved, and the priority date becomes current, a foreign relative can apply for a green card. The purpose of this application is to determine eligibility for a green card. This includes a comprehensive examination of a foreign relative's background including their medical and criminal history as well as the sponsor's financial status. If a green card is applied for in the US, the process is called "Adjustment of Status," and if outside the US, "Consular Processing." The result is the same: to obtain a green card.

There is an exception to this 2-step process. An immediate relative of a US citizen applying for a green card through adjustment of status can complete their application in a 1-step process by filing an I-130 relative petition and I-485 application for adjustment of status simultaneously.

Conditional Permanent Residence

A foreign national who has been married to a US citizen or green card holder for less than 2 years on the day that permanent residence is conferred is given a conditional green card for 2 years. The purpose of this condition is to prevent fraudulent marriages from being entered solely to evade immigration laws. Except for this condition, the foreign spouse has the same rights as any other green card holder. The foreign spouse may live and work in the US and travel freely in and out of the US. Furthermore, the time spent as a conditional green card holder counts toward the residency requirements for naturalization.

To remove the condition, the foreign spouse and the US citizen or permanent resident spouse must jointly file a petition within 90 days before the second anniversary of the foreign spouse's obtaining a conditional green card. The USCIS will have another chance to review the legitimacy of the marriage. If the parties can prove the bona fides of the marriage, the USCIS will remove the condition, and the foreign spouse will receive a regular green card.

If the joint petition is not possible, the foreign spouse may be able to apply to waive the joint filing requirement.

Waiver of Joint Petition

A foreign national who has been married to a US citizen or permanent resident for less than 2 years on the day that permanent residence (green card) is conferred is given a conditional permanent residence for 2 years. To remove the condition, the foreign spouse and the US citizen or permanent resident spouse must jointly file a petition within 90 days before the second anniversary of the foreign spouse's obtaining conditional permanent residence.

The joint petition may not be possible for various reasons. The foreign spouse may be able to apply to waive the joint filing requirement in any of the following circumstances:

1. The marriage was terminated through divorce or annulment;
2. The spouse is deceased;
3. The foreign spouse or their child was battered by or was the subject of extreme cruelty by the spouse; or
4. The removal from the US would result in extreme hardship.

Like the joint petition, the USCIS will review the legitimacy of the marriage; thus, the foreign spouse must submit evidence to prove that the marriage was entered in good faith. In addition, the foreign spouse must submit evidence establishing eligibility for the waiver application such as death certificate, divorce decree, reports from social service agency and psychologist, medical records, police reports, etc.

Application Categories

1. First Employment-Based Preference (EB-1) is comprised of (i) Individuals of Extraordinary Ability, (ii) Outstanding Professors and Researchers, and (iii) Multinational Executives and Managers. They are also commonly known as priority workers.
2. Second Employment-Based Preference (EB-2) is comprised of (i) Individuals of Exceptional Ability and (ii) Professionals Holding Advanced Degrees.
3. Third Employment-Based Preference (EB-3) is comprised of (i) Professionals, (ii) Skilled Workers, and (iii) Unskilled Workers.
4. Fourth Employment-Based Preference (EB-4) comprises 6 subcategories commonly known as Special Immigrants including Religious Workers.
5. Fifth Employment-Based Preference (EB-5) is reserved for investors in new commercial enterprises.

Application Process

Applying for a green card based on an employment relationship is a 3-step process: (i) the labor certification application, (ii) the immigrant visa petition, and (iii) the application for a green card.

Step 1: Labor Certification Application

US employers must first obtain a labor certification from the US Department of Labor. The labor certification is required for most workers in the EB-2 and EB-3 categories. Priority workers in the EB-1 category are exempt from the requirement.

Step 2: I-140 Immigrant Petition

Once the employer has obtained labor certification, the employer now files an I-140 immigrant petition with the USCIS. The purpose of this petition is to establish that (i) the labor certification has been certified by the Department of Labor, (ii) the employer has the ability to pay the offered wage, and (iii) the foreign worker meets the educational and/or job experience requirements listed on the labor certification.

Step 3: Green Card Application

Once the immigrant petition is approved, and the "priority date" becomes current, the foreign worker can apply for a green card. The purpose of this application is to comprehensively examine the foreign worker's background including their medical, criminal, and financial status. If a green card is applied for in the US, the process is called "Adjustment of Status," and if outside the US, "Consular Processing." The result is the same: to obtain a green card.

EB-1A Individuals of Extraordinary Ability

This subcategory under the first preference employment-based immigration is for individuals of extraordinary ability in science, arts, education, business, or athletics who have risen to the very top of their field of endeavor. Neither a job offer nor a labor certification is required, but you must show that you intend to continue working in your field after becoming a permanent resident.

How to Qualify:

1. You have extraordinary ability in the sciences, arts, education, business or athletics,
2. Your extraordinary ability is demonstrated by sustained national or international acclaim,
3. Your achievements are recognized in the field through extensive documentation,
4. You must be entering the US to continue working in your field of endeavor, and
5. Your entry into the US will substantially benefit the US.

Extraordinary ability may be demonstrated by receipt of a major internationally recognized award such as the Nobel Prize, Pulitzer, Olympic Medal, or Academy Award. Alternatively, it may be demonstrated by at least 3 of the following types of evidence:

1. Receipt of nationally or internationally recognized prizes or awards for excellence in your field,
2. Membership in associations in your field which require outstanding achievements of their members,
3. Published material in professional or major trade publications or major media about you and your work,
4. Participation as a judge of the work of others in your field,
5. Contributions of major significance in your field,
6. Authorship of scholarly articles in professional journals or other major media,
7. Display of your work in the field of artistic exhibitions or showcases,
8. Evidence that you have performed in a leading or critical role for organizations or establishments with a distinguished reputation,
9. Commercial success in the performing arts,
10. High salary or other remuneration for services in relation to others, and
11. Other comparable evidence.

EB-1B Outstanding professors and researchers

This subcategory under the first preference employment-based immigration is for outstanding professors and researchers. Although no labor certification is required, a job offer is required for this subcategory.

How to Qualify:

1. You must demonstrate that you have international recognition for your outstanding achievements in your field of academic endeavor,
2. You must have at least 3 years of teaching or research experience in your academic field,
3. Your job offer from a US employer must be a tenure or tenure track teaching or comparable research position at an institution of higher education or a private employer that employs at least 3 full-time researchers.

Your international recognition for outstanding achievements in your field may be demonstrated by at least 2 of the following types of evidence:

1. Receipt of major prizes or awards for outstanding achievements in the academic field,
2. Membership in associations that require outstanding achievements,
3. Published material in professional publications written by others about your work in the academic field,
4. Served as a judge of the work of others in the academic field,
5. Original scientific or scholarly research contributions in the academic field,
6. Authorship of scholarly articles with international circulation in the academic field, and
7. Other comparable evidence.

EB-1C Multinational Executives and Managers

This subcategory under the first preference employment-based immigration is reserved for executives and managers of multinational companies who are transferred to US-based operations. The requirements for multinational executives and managers are very similar to those for the L-1 nonimmigrant visa category, but there are a few differences. For instance, the EB-1 category is only available to managers and executives and not workers with specialized knowledge. Additionally, the EB-1 category requires that the US-based company have been in operation for at least 1 year while there is no such requirement under the L-1 nonimmigrant visa category.

Although no labor certification is required, a job offer is required for this subcategory.

How to Qualify:

1. You have been employed abroad full-time for at least 1 of the last 3 years before filing the petition. If you are currently in the US working for the same US employer, you were employed abroad for at least 1 year in the 3 years preceding your entry to the US as a nonimmigrant,
2. You have been employed abroad as an executive or manager,
3. The company you have worked for abroad must be a branch, parent, subsidiary, joint venture partner, or affiliate of the US company,
4. You must work in an executive or managerial capacity for the US-based company, and
5. The US-based company has been doing business for at least 1 year.

EB-2 National Interest Waiver

This subcategory under the second preference employment-based immigration is reserved for members of professions holding advanced degrees or individuals of exceptional ability in the arts, sciences, or business whose work is in the national interest. Normally, to file an employment-based immigration petition under the second preference category, you must have a bona-fide job offer and the approved labor certification. However, the National Interest Waiver requests a waiver of these requirements by proving that your admission to permanent residence would be in the national interest and that your ability to serve the national interest is substantially greater than most of your colleagues.

How to Qualify:

1. You must prove that you have either an advanced degree or exceptional ability in the arts, sciences, or business,
2. Your proposed endeavor must have both substantial merit and national importance,
3. You must be well-positioned to advance the proposed endeavor,
4. You must prove that, on balance, it would be beneficial to the US to waive the job offer and labor certification requirement.

EB-4 Religious Workers

This subcategory under the fourth preference employment-based immigration is reserved for religious workers. Religious workers include ministers and other religious workers who engage in activities in a religious vocation or occupation. Although no labor certification is required, a job offer is required for this subcategory.

How to Qualify:

1. You are a member of a religious denomination having a bona fide nonprofit, religious organization in the US for 2 years immediately preceding the filing of the petition,
2. The religious denomination and its affiliate must be exempt from taxation under §503(c)(3) of the Internal Revenue Code,
3. Immediately preceding the filing of the petition, you have been working in one of the religious positions for at least 2 years in the US or abroad, and
4. You must be entering the US solely to carry on the vocation of a minister of the religious denomination or to work in a religious vocation or occupation for the denomination or for an organization affiliated with that denomination.