Permanent resident card

Who is eligible for a green card in the United States?

There are multiple ways individuals can become eligible to apply for permanent United States residency (green card).

Foreign nationals can apply for a green card via an offer of permanent employment, via a family member or via “humanitarian” means.

Below is further details and information about who is eligible for a green card in the United States.

Employment-based green card

Any U.S. company doing business within the United States can sponsor a worker for a green card based on a future offer of employment, regardless of education level or training.

However, employment-based green cards are limited to 140,000 per year because of a congressional mandate. Therefore, green cards are divided into several subgroups, known as preference categories, each of which receives a certain percentage of the allocation every year.

The preference categories follow below:

  • EB1: “Priority workers,” such as those with extraordinary ability, outstanding researchers and professors, and multinational managers and executives
  • EB2: Advanced degree holders, and/or “persons of exceptional ability”
  • EB3: “Skilled workers”
  • EB4: “Special immigrants,” which include religious workers, U.S. military members, some physicians and more.
  • EB5: “Investors” for individuals who invest at least $1 million (or $500,000 if in a high unemployment or rural area) in a new commercial U.S. enterprise and create at least 10 full-time jobs for U.S. workers

The allocation in each subcategory is then divided up amongst country of origin — technically referred to as country of “chargeability,” which is usually the country of birth. This can result in long waiting periods for green card eligibility depending on preference category and country of “chargeability.”

In many EB2 and EB3 cases, employers must first prove there is no U.S. worker who is able, willing, available and meets the minimum requirements for a job posting before presenting a permanent offer of employment to a foreign national. This is often referred to as “testing the labor  market” and the PERM or labor certification process.

There is also a mechanism for any unused green cards each year to be rolled over between and amongst the preference categories.

Family-based green card

Foreign nationals can become eligible to apply for a green card if they are a family member of a U.S. permanent resident or green card holder.

U.S. citizens can sponsor:

  • Their unmarried children under 21
  • Their spouse
  • Their parents
  • Their married children
  • Their siblings

Meanwhile, U.S. green card holders can sponsor:

  • Their spouse
  • Their children under 21
  • Their unmarried children over 21

The only family members immediately eligible to apply for green cards are spouses and children under 21 of U.S. citizens. Permanent residency for all other family members is considered “limited” and distributed based on preference categories and country of “chargeability,” in a similar manner to employment-based green cards.

The family-based preference categories are:

  • F1: Unmarried sons and daughters (21 years of age and older) of U.S. citizens
  • F2A: Spouses and children (unmarried and under 21 years of age) of lawful permanent residents
  • F2B: Unmarried sons and daughters (21 years of age and older) of lawful permanent residents
  • F3: Married sons and daughters of U.S. citizens
  • F4: Brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older)

Furthermore, U.S. citizens can sponsor their fiancée via a K-1 visa. This visa allows a fiancée to come to the United States as a nonimmigrant. The K-1 visa holder can then apply for lawful permanent residency as long as they marry the U.S. citizen within 90 days of entering the country.

To be eligible for a K-1 visa:

  • The fiancée sponsor must be a U.S. citizen
  • The fiancée sponsor and foreign national must intend to marry within 90 days of entry into the United States
  • The fiancée sponsor and foreign national both must be “legally free to marry”
  • The fiancée sponsor and foreign national must have “met each other in person at least once within the 2-year period” before they file their petition, with limited exceptions

“Humanitarian” based green card

“Humanitarian” based green cards are granted to individuals who meet certain criteria outlined by United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS).

That criteria includes:

  • Religious workers
  • Special “juvenile” immigrants: Defined as juveniles who need the protection of a juvenile court because they have “been abused, abandoned or neglected by a parent.”
  • Afghan or Iraqi nationals
  • International broadcaster

Additionally, those previously granted asylum, refugee status, a T nonimmigrant visa (human trafficking victim) or a U nonimmigrant visa (crime victim) can apply for a green card after a waiting period of one to three years.

Further, the “VAWA” Program (Violence Against Women Act of 1994) allows spouses and children of U.S. citizens and lawful permanent residents, and parents of U.S. citizens who are 21 years of age or older, who have been abused by their U.S. citizen or lawful permanent resident relative, to seek legal permanent residence and a green card through a self-petition with USCIS and subsequently via consular processing (if outside the U.S.) or adjustment of status (if inside the U.S.).

Moreover, the U.S. Department of State holds an electronic diversity visa lottery, which takes place each fiscal year and is only open to individuals from certain countries.

Other key information

Aside from meeting a specific category of eligibility, individuals must be considered “admissible” in order to receive permanent residency in the United States. Reasons an individual would be considered “inadmissible” could include past criminal violations; posing a security threat to the United States; or a previous infraction of U.S. immigration law. Foreign nationals deemed “inadmissible” are not eligible for green cards.

Foreign nationals currently residing in the United States often apply to receive a green card by adjusting their status with USCIS. Those outside the country apply via consular processing with the Department of State.

Other avenues for green card eligibility may be available in certain circumstances. Individuals should consult with experienced immigration counsel to discuss their options if they are considering applying for permanent residence in the U.S.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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