Green Card Basics

What is a green card?
While not actually green in color, the identity cards known as “green cards” are issued to lawful permanent residents (LPRs), who are foreign nationals permitted to live and work in the United States permanently.  The green card is a document (Form I-551) issued by the United States Citizenship and Immigration Services (USCIS) that serves as evidence of lawful immigration status, identity, and employment authorization.

What are the responsibilities of a green card holder?
Green card holders must abide by U.S. law, including Federal, State, and local laws and regulations.  Those who fail to do so may have their permanent resident status revoked.  LPRs must also file tax returns as U.S. residents, or else risk abandonment of status.  Additionally, LPR’s must reside in the US, or can be deemed to have abandoned permanent residence if the LPR resides in another country or is absent from the U.S. for more than one year (without first obtaining a re-entry permit).

How do you apply for a green card?
Permanent residency is most commonly obtained through employment or family.  In most cases, USCIS must first approve an immigrant petition for the foreign national, usually filed by an employer or relative.  Once an immigrant visa number becomes available for that foreign national, then he or she may either apply to adjust to permanent resident status through USCIS (if he or she is legally in the U.S.) or go through Consular processing for an immigrant visa (if living outside the U.S.).

What is an immigrant visa number?
There are a limited number of immigrant visas available each year.   Visa numbers are issued by the U.S. Department of State and their availability is also limited by country.  Therefore nationals from countries with high demand for U.S. immigrant visas, i.e. China, India, Mexico, and the Philippines, face a longer wait. 

When are foreign nationals eligible to apply?
Each approved immigrant visa petition, no matter if by family or employer, is placed in chronological order according to the date the petition was filed, i.e. the priority date.  A foreign national becomes eligible for an immigrant visa once his or her priority date becomes current.

Who is eligible for a green card?
Family-based and employment-based visa petitions are organized into several preference categories. 

Family-Based Petitions: An immigrant visa is always available to the spouse, parents, and unmarried children under the age of 21 of a U.S. citizen.  There is no wait or backlog for these visas, other than processing delays if the relative is not in the US.  Spouses and children of LPRs, adult unmarried children of LPRs, and adult married or unmarried children of US citizens require an immigrant visa number and have different classifications.  The last category are siblings of US citizens.

Employment-Based Petitions: Employment-based petitions are allotted by visa priority, while not all require an employer to petition on the foreign national’s behalf.  First Preference includes aliens with extraordinary abilities in the sciences, arts, education, business, or athletics (EB1-1); outstanding professors and researchers (EB1-2); and certain multinational executives and managers (EB1-3).  Second Preference includes positions that require  advanced degrees and persons of exceptional ability in the sciences, arts, or business (EB2).  Third Preference includes skilled workers, professionals, and other qualified workers (EB3).  Fourth Preference includes religious workers and other special immigrants (EB4).  Fifth Preference includes entrepreneurs making qualified investments in the U.S. (EB5).

How does an employer sponsor a foreign national for permanent residency?
For the petitions that require an employer sponsor, the typical route to permanent residence would include The employer must ensure that there are no qualified, able and willing U.S. workers available for the position.  This process is called labor certification, and consists of a combination of recruitment methods to serve as a market test.  If no qualified U.S. workers are found, then an Application for Permanent Employment Certification (or PERM) is submitted to the U.S. Department of Labor.  After DOL certification, the employer can file an immigrant petition on behalf of the beneficiary employee.  The employee’s priority date for green card application purposes is the date that the PERM application was accepted for processing.  

Is labor certification required for all employment-based applications?
No.  Foreign nationals in the EB1, EB4, and EB5 categories, and EB2 applicants who qualify for a national interest waiver (NIW), are exempt from the labor certification process.

Who else is eligible for a green card?
The Department of State makes a limited number of immigrant visas available each year through the Diversity Lottery, for randomly selected nationals who come from countries with low rates of immigration to the U.S.  In addition, asylum is granted to individuals in the U.S. who have been persecuted in their home country, or fear they will be persecuted, on account of their race, religion, nationality, membership in a particular social group, or political opinion.  Refugees who meet this definition and seek entry into the U.S. may also be granted asylum.  Refugees must apply for permanent residency one year after entering the U.S. as a refugee.  Asylees are eligible to apply for permanent residency one year after being granted asylum, but are not required to do so.

How can a foreign national’s family obtain a green card?
Once a foreign national becomes eligible to adjust status to permanent residency (in the U.S.) or apply for an immigrant visa at a U.S. consulate (outside the U.S.), the foreign national’s spouse and unmarried children under age 21 can apply concurrently as dependents.

Can immigrants work in the U.S. while their green card applications are pending decision?
Yes, if they have applied for and received an Employment Authorization Document (EAD).  An EAD permits employment for any U.S. employer, and can be renewed annually.  Once approved, the green card serves as proof of employment authorization.  

Can immigrants travel outside the U.S. while their green card applications are pending decision?
Yes, in most instances, a person who has made an application for adjustment of status (I-485) may request and be granted a travel document called advance parole.  The risk to travel while the I485 is pending is that if a denial of the I485 application is made while the applicant is outside the U.S., the applicant will not be allowed to return on the advance parole document.  Without court intervention, it will likely be difficult to return to the U.S. and certain consequences of leaving the US may attach, if the parole is not longer valid and the applicant had more than 180 days out of nonimmigrant status prior to filing the application for adjustment of status.   While the I-485 remains pending and undecided, the Advance parole travel document can be renewed annually.  Once approved, the green card authorizes re-entry into the U.S.

Where is the applicable law?
Immigration in the U.S. is governed by the Immigration and Nationality Act (INA).  Permanent residency is covered by INA § 245, and specific eligibility requirements and procedures are provided in the Code of Federal Regulations (CFR), at 8 CFR Part 245. 

 


 

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