General Information Concerning Immigration to the United States
– By Allen E. Kaye

The following information is intended for persons desiring to immigrate to or live permanently in the United States. Others may also find it useful. It is suggested that the reader review this material carefully and follow the instructions that relate to the immigrant visa applicant's particular category. Any person who desires more detailed information should contact me. - Allen E. Kaye

GENERAL CATEGORIES OF IMMIGRANTS

Persons desiring to immigrate to the United States are divided into two general categories: (I) those who may obtain legal permanent residence status without numerical limitation, and (II) those who are restricted by an annual limitation on the number of persons who may enter as residents. The latter category is divided into (A) family-sponsored immigrants, (B) employment-based immigrants, and (C) diversity immigrants.

I. IMMIGRANTS NOT NUMERICALLY LIMITED
Immediate Relatives of United States Citizens: The spouse and minor unmarried children of a United States citizen, and the parent of a United States citizen who is over the age of twenty-one.

II. IMMIGRANTS SUBJECT TO NUMERICAL LIMITATIONS
There are numerical limits on all immigration to the U.S., except for persons listed in Category I above. There are three distinct sub-categories:

A. FAMILY-SPONSORED IMMIGRANTS: The limit on family-sponsored immigration is recalculated for each year under a complicated formula, but can never be less than 226,000. The family-sponsored categories (preferences) are:

1. First Preference: Unmarried sons and daughters of U.S. citizens, and children, if any (23,400, plus unused visas, if any, by family fourth preference applicants for the previous year).
   
2. Second Preference: Spouses, children, and unmarried sons and daughters of lawful permanent resident aliens (114,200, plus excess over the 226,000 "floor," plus unused visas, if any, from the family first preference allocation).
   
3. Third Preference: Married sons and daughters of U.S. citizens, and their spouses and children (23,400, plus unused visas, if any, from the family first and second preference allocations).
   
4. Fourth Preference: Brothers and sisters of U.S. citizens, and their spouses and children, provided the U.S. citizens are 21 years of age or over (65,000, plus unused visas, if any, from the family first and second preference allocations).

B. EMPLOYMENT-BASED IMMIGRANTS: A total of 140,000 immigrant visas yearly are available for this category which is comprised of five preference allocation groups (percent of yearly limit plus spilldown figures are indicated in parentheses):

1. Priority Workers: Persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and certain multinational executives and managers (40,000 or 28.6%, plus unused visas, if any, from the employment-based fourth and fifth preference allocations). Labor certification not required. Job offer not required for extraordinary ability aliens.
   
2. Professionals holding advanced degrees, and persons of exceptional ability in the sciences, arts and business [40,000 or 28.6%, plus unused visas, if any, from employment-based Category 1 (Priority Workers) allocation]: Job offer and labor certification required, but both may be waived if an exemption from these requirements is found by the United States Citizenship and Immigration Services to be in the "national interest."
   
3. Professionals, Skilled and Unskilled Workers: Professionals holding baccalaureate degrees, skilled workers with at least two years experience, and other workers whose skills are in short supply in the United States (40,000 or 28.6%, plus unused visas, if any, from the employment-based first and second preference allocations). (Unskilled workers are subject to a sublimit of 10,000.) Job offer and labor certification required.
   
4. Special Immigrants: Certain religious workers and ministers of religion, certain international organization employees and their immediate family members, and specifically qualified and recommended current and former employees of the United States Government (10,000 or 7.1%). No labor certification required.
   
5. Investors: Persons who create employment for at least ten workers not related to the investor by investing capital in a new commercial enterprise, or a business that qualifies as being "distressed," in the United States. The minimum amount of capital required is between $500,000 and $1,000,000, depending on the employment rate in the geographic area (10,000 or 7.1%). No labor certification required.

C. DIVERSITY IMMIGRANTS: There are 50,000 visas available each year for nationals of countries which have been under-represented in U.S. immigration for the previous five years. A mathematical formula is used to determine which areas benefit most, since the visas are allocated by area, not by country. No country can, however, receive more than 7% of the 50,000 each year. There are minimum education and training requirements for applicants in this program. The program is also known as the DV Visa Lottery.

STEPS TO BE TAKEN IN APPLYING FOR U.S. IMMIGRANT VISAS Certain applicants such as priority workers, investors, certain special immigrants, and diversity immigrants can petition on their own behalf. All other intending immigrants must have a relative or potential employer petition for them.

1. Applicants for family-sponsored immigrant visas should request the qualifying relative to file a petition (Form I-130) with the United States Citizenship and Immigration Services. In some cases, if the relative is abroad, he or she may file the petition with a United States Citizenship and Immigration Services Office or a U.S. Consular Office at an American Embassy or Consulate.
   
2. Applicants for employment-based immigrant visas (see II[B][1-3] above) require an approved petition (Form I-140) from the United States Citizenship and Immigration Services in the United States. Persons described in II[B][1] as Priority Workers may petition on their own behalf to the United States Citizenship and Immigration Services, while others must have their prospective employers file the petitions (unless the necessity of an employer is waived under the "national interest" proviso). Prior to filing a petition with the United States Citizenship and Immigration Services, applicants for classification under II[B][2-3] as members of the professions holding advanced degrees or persons of exceptional ability in the sciences, arts, and business, and professionals, or skilled and unskilled workers, must obtain certification from the Department of Labor that there are no qualified workers available for the proposed employment in the United States. Some applicants in the second preference category may be eligible for a national interest waiver of employer and labor certification. Some applicants in the second and third preference category may be eligible for a Schedule A (automatic) labor certification rather than the individual (job offer) labor certification.
   
3. The United States government employees described in Part II[B][4] above must apply to the Secretary of State through a United States consular office abroad. All other special immigrants described in Part II[B][4] above must file a Form I-360 petition with an office of the U.S. United States Citizenship and Immigration Services.
   
4. An investor described in Part II[B][5] above must file a Form I-526 petition with the United States Citizenship and Immigration Services.
   
5. Diversity Immigrants described in Part II[C] above must file an application with the Secretary of State during a specified application period. Requirements, procedures and application dates are announced by the Department of State each year before the application period. Lottery winners are notified by the Department of State and given further instructions; applicants not selected are not notified.
   
6. When a family-sponsored or employment-based petition is approved and the beneficiary will apply for an immigrant visa at a U.S. Embassy or Consulate abroad, the United States Citizenship and Immigration Services sends the approved petition to the Department of State which notifies the beneficiary (visa applicant) and provides instructions to follow at that time.
   

PERSONS INELIGIBLE TO RECEIVE VISAS

The immigration laws of the United States, in order to protect the health, welfare, and security of the United States, prohibit the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who: have a communicable disease, such as tuberculosis; are HIV positive, or have a dangerous physical or mental disorder; are drug addicts; have committed serious criminal acts, including crimes involving moral turpitude, alien smuggling, drug trafficking, and prostitution or procuring; are terrorists, subversives, members of a totalitarian party or former Nazi war criminals; are likely to become public charges in the United States; have used fraud or other illegal means to enter the United States; or are ineligible for citizenship. Former exchange visitors who are subject to the two-year foreign residence requirement must live abroad for two years, unless they obtain a waiver. Physicians who intend to practice medicine and are not immigrating through family-based immigration must pass a qualifying exam before receiving immigrant visas.

If any of the foregoing restrictions might apply, then the applicant should contact an attorney who specializes in U.S. immigration matters and is licensed to practice law in a state of the United States to see whether the law provides for some form of relief, such as a waiver of ineligibility.

OTHER IMPORTANT INFORMATION

1. Documents Required in Support of a Visa Application: All applicants must submit certain personal documents such as passports, birth certificates, police certificates (in some cases), and other civil documents, as well as evidence that they will not become a public charge in the United States. The consular officer will inform visa applicants of the documents needed as their applications are processed.
   
2. Medical Examinations: Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. The examination will be conducted by a doctor designated by the consular officer or United States Citizenship and Immigration Services. Costs for such examinations must be borne by the applicant. As of 1997, all immigrants are required to have vaccinations against a specified list of diseases or to establish that being vaccinated against one or more of them would be medically inadvisable. You should obtain a list of the required vaccinations as soon as possible from an American consular office, the United States Citizenship and Immigration Services, or a qualified U.S. immigration lawyer. Once you have the list, you should consult a doctor about the vaccinations.
   
3. New Affidavit of Support Requirements: As of 1997, all family-sponsored immigrants and certain employment-based immigrants must present a legally binding affidavit of support. Ordinarily, the affidavit is submitted only by the person who filed the petition for the immigrant, although, if that person's income does not meet the minimum required level, another person whose income does meet that level can also submit a second affidavit. The affidavit is a contract under which the person who submitted it can be held legally liable to support the immigrant. The obligation lasts until the immigrant becomes a U.S. citizen or has worked for a specified length of time. An employment-based immigrant must present such an affidavit only if a close relative is the immigrant's employer or owns a significant interest in the company which is the immigrant's employer. This requirement creates very serious obligations and you should obtain detailed information about it from an American Embassy or Consulate, the Bureau of Citizenship and Immigration Services, or a qualified U.S. immigration lawyer.
   
4. Visa Fee: The present cost of each formal immigrant visa application is $380, and $70 for checking the Affidavit of Support prior to the issuance of the immigrant visa. Fees must be paid by each intending immigrant, regardless of age, and are not refundable. Local currency equivalents are acceptable. Fees should not be sent to the consular office unless specifically requested. The United States Citizenship and Immigration Services also charges fees for filing petitions.
   
5. Numerical Limitations: Whenever there are more approved and qualified applicants for a category than there are available numbers, the category is considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of the visa petition becomes the applicant's priority date, or "turn in line." Immigrant visas cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years or more before a priority date is reached.
   
6. Miscellaneous: Since no advance assurances can be given that a visa will be issued, applicants are advised not to make any final travel arrangments, not to dispose of their property, and not to give up their jobs until visas have been issued to them. An immigrant visa must be used for entry into the U.S. within four months from date of issuance. After the immigrant visa has been used once (to enter the United States), the immigrant is issued a Permanent Resident Card ("green card") that will permit him to re-enter the U.S. should he travel abroad.
   With few exceptions, a person born in the United States is a United States citizen. Persons born in countries other than the United States may have a claim, under United States law, to United States citizenship if:
      a) Either parent was born or naturalized in the United States.
      b) Either parent was a United States citizen at the time of birth of the applicant.

For further information about the specific categories of immigrant visas listed above, or if there are any other questions, contact me.
- Allen E. Kaye.

Following is a brief outline of the United States immigrant visa selection system.

THE UNITED STATES IMMIGRANT VISA SELECTION SYSTEM

A. FAMILY-BASED IMMIGRATION

1. Immediate Relatives: Spouses, parents of U.S. citizens whose child is over the age of 21, and unmarried children (under 21) of U.S. citizens.
2. F1: Unmarried adult children (over 21 years of age) of U.S. citizens.
3. F2: a) Spouses, minor children and
         b) unmarried adult children of permanent residents.
4. F3: Married adult children of U.S. citizens.
5. F4: Brothers and sisters of adult U.S. citizens (over 21 years of age).

B. EMPLOYMENT-BASED IMMIGRATION

1. "Priority workers": Extraordinary ability¹, outstanding professors and researchers, and certain multinational executives and managers - labor certification not required.
   
2. Professionals holding advanced degrees or aliens of exceptional ability.^2,3
   
3. Professionals with baccalaureate degrees, skilled workers (2+ years of experience/training) and "other workers" (-2 years of experience/training).²
   
4. "Special immigrants": Includes clergy, foreign missionary workers, etc., labor certification not required.
   
5. Investors: New enterprises employing at least 10 U.S. workers + $500,000 - $1 million capital - labor certification not required.
   
   ¹ Job offer not required
   ² Requires labor certification (see below)
   ³ Job offer and labor certification requirement may be waived
   

C. DIVERSITY-BASED IMMIGRATION

Permanent diversity program (Visa Lottery).

LABOR CERTIFICATIONS

1. The U.S. Secretary of Labor must find that:
      a) There are not sufficient workers in the U.S. who are able, willing, qualified (or "equally qualified" in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts), and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor (generally this is a question of the availability of local workers), and
       b) The employment of such aliens will not adversely affect the wages and working conditions of workers in the U.S. similarly employed (generally, this is a question of prevailing wages).
   
   
2. Types of labor certifications:
     a) Schedule A (Pre-Certified).
     b) Job offer or individual labor certification.
     c) Schedule B. Occupations on this list are those for which (generally) labor certifications will not be issued. Note that Schedule B is eliminated for labor certification applications filed after March 27, 2005.

Allen E. Kaye is an attorney with law offices at
111 Broadway, Suite 1304, New York, NY 10006

Tel: 212/964-5858 • Fax: 212/608-3734

E-mail:
AllenEKaye@Compuserve.com or
AllenEKaye@nyc.rr.com or
AKaye@Kayevisalaw.com

Website:
www.kayevisalaw.com

He has concentrated in the practice of U.S. Immigration Law for 30 years. Mr. Kaye is a past national President of the American Immigration Lawyers Association (AILA).

All rights reserved. No part of this pamphlet may be reproduced or copied by any means without the express written permission of the author.
© Copyright August 31, 2007 by Allen E. Kaye.