An Overview of Pathways to the Green Card

by Vance Winningham on Dec. 04, 2013

Immigration 

Summary: For much of its history, the United States had a similar policy regarding immigration, but in 1882, the U.S. Congress passed the first law that placed restrictions on who could come to this country.

The Greek statesman Pericles boasted in his funeral oration during the Peloponnesian War that Athens allowed foreigners to live within its borders and that they were never expelled from Athens.

For much of its history, the United States had a similar policy regarding immigration, but in 1882, the U.S. Congress passed the first law that placed restrictions on who could come to this country. Since that time there have been numerous legislative enactments regarding immigration, and many judicial decisions on the subject have played a role in the development of contemporary immigration law. And while immigration law impacts every state and local government, it is solely the preserve of the U.S. Congress. The U.S. Supreme Court has held that, “Over no conceivable subject is the legislative power of Congress more complete.”1 The acquisition of a visa that will vest an immigrant with what is known as “permanent resident status” (or “green card”) is what is sought by legal immigrants. Most immigrant visas are subject to numerical limitations imposed by Congress in consultation with what is now known as the Department of Homeland Security.

Immigrant visas are obtained by petitioning the United States Citizenship and Immigration Service. A primary basis for such petitions is having qualified relatives who are either U.S. citizens or have permanent residence status.2 Spouses, widows, widowers, unmarried minor children of citizens under 21 years old and parents of citizens are considered immediate relatives not subject to numerical limitations.3 The category also includes permanent residents who have been out of the country for more than one year. There are several limited family categories as well. These include adult sons, daughters, brothers and sisters of U.S. citizens, and there are several other limited categories that concern the immediate family of lawful permanent residents of the U.S.4

Permanent resident status can be obtained through employment as well. Congress has enacted a system that has five different categories known as preferences for that purpose. The first one is for applicants who have displayed “extraordinary ability.” The regulations adopted by the Department of Homeland Security define that term as denoting an individual who is “one of a small percentage who have risen to the very top of their field” in the sciences, arts, education, business or athletics.5 This category is unique in that it does not require that an applicant who falls within it have an offer of employment in this country, nor is he or she required to obtain a labor certification from the Department of Labor. In addition, it is not subject to numerical limitation while all the other employment-based preferences are limited in that regard.6

The second preference is “exceptional ability,” defined as an ability that is “significantly above” that of most people in that particular field.7 An individual petitioning for it must have an offer of employment in his or her field and a labor certification, unless the certification requirement is waived because it is in the national interest to do so. The third category includes skilled workers with several years of experience in their field and professionals with at least a bachelor’s degree in their field. Labor certification is required.8

The fourth category is unskilled workers. A labor certification is required.9 Labor certifications are obtained from the U.S. Department of Labor after that agency has determined that there are no American workers who are ready, able, willing and qualified to fill the position in question.10 The U.S. Department of Labor has designated nurses and physical therapists as “shortage occupations,” and thus a labor certification is not required for these occupations.11

The final category is foreign investors who will invest at least $1 million in the United States in a new commercial undertaking that will create at least 10 new jobs. If the new business is in a rural area or an urban area with high levels of unemployment, the amount invested in the new business only has to be $500,000.12

Any alien who is in the United States may qualify for political asylum in this country if he or she is unable to avail him or herself “of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”13 An alien must now normally file an application for political asylum within one year of his or her arrival in this country, and may be ineligible to file for any further immigration benefits if it is found that he or she filed a frivolous claim.14

The burden of proof is on the applicant, and he or she must show that the fear is “well-founded.” The regulation mandates that an applicant can satisfy the standard of a fear of persecution being well-founded if he or she can establish that a pattern or practice of persecution exists in his or her country on account of race, religion, national identity, or political opinion and the applicant is a member of a group that is subject to that unfair treatment.15 The U.S. Supreme Court has interpreted that requirement to mean that an individual applicant must be able to show a “clear probability of persecution.”16

A claimant for asylum must file an application, and is then given an interview with an asylum officer who will review the information contained in the application in a non-adversarial manner. The asylum seeker has a right to file an application for a work authorization 180 days after his or her asylum application has been filed.17 The applicant has a right to counsel being present at the interview and may submit affidavits executed by witnesses who have knowledge of the applicant’s case. If the asylum officer denies the claim, the case is referred to an immigration judge.18 The asylum officer is not required to state reasons for his or her decision regarding an
application.

The immigration judge has a de novo hearing regarding the claimant’s claim for political asylum. The application will be denied by the immigration judge in the event that the applicant fails to meet his or her burden, or if he or she had previously participated in persecution of others, or has been convicted of a crime that makes him or her a danger to this country or that there are reasonable grounds to believe that the alien is a danger to the security of the United States.19

In the event asylum is granted, the applicant has the right to remain in this country for an indefinite period of time and is also entitled to work as well. He or she can also file a petition on behalf of a spouse or children who are outside of the United States and bring them to this country. An asylee who remains in the United States for one year after being granted asylum may file for an adjustment of status to that of a permanent resident alien.20 In the event that an alien wishes to appeal an immigration judge’s order denying political asylum, he or she can appeal that determination to the Board of Immigration Appeals, which is a branch of the U.S. Department of Justice.21 That board is composed of a chairman and 14 other members who are all appointed by the U.S. attorney general. The board’s review is not a trial de novo, and is confined to the record of the proceeding heard by the immigration judge, and the alien is required to file a brief in support of his or her appeal. The department is not required to file a brief, but may do so.22

An appeal from a finding made by the Board of Immigration Appeals must be filed in the appellate court of the federal circuit in which the decision of the immigration judge was issued within 30 days of the date of its issuance.23

1. Fiallo v. Bell, 430 U.S. 787 (1977).
2. 8 USCA Sec. 1153(a)(1).
3. Id.
4. 8 USCA Sec. 1153(a)(4).
5. 8 CFR Sec. 204.5(2).
6. 8 CFR Sec.204(5)
7. 8 USCA Sec. 1153(a)(b).
8. 8 USCA Sec.1153 (c ) (2)
9. 8 USCA Sec.1153 (3) (c)
10. 8 USCA Sec. 1182
11. 8 USCA Sec. 1182 (a)(5)(A)
12. 8 USCA Sec. 1153 (5)(A)
13. 8 CFR Sec. 208.13
14. 8 USCA 1158 (b)
15. 8 CFR Sec. 208.13
16. INS v. Cardoza-Fonesca, 480 U.S. 421 (1987).
17. 8 CFR Sec.208.7
18. 8 CFR Sec. 208.14 (b)(2)
19. 8 CFR Sec. 208.13
20. 8 CFR Sec. 208.22.
21. 8 CFR Sec.3 (b)(2)
22. 8 CFR Sec. 3.1 (e), 3.3 (c ), 3.5
23. 8 USCA Sec 1252 B (b)(2).

About the Authors

William O’Brien is an assistant attorney general for the state of Oklahoma. He has a B.A. from Loyola University of New Orleans, a bachelor of liberal studies and masters of public administration from OU, an M.A. from OSU, a J.D. from OCU School of Law and an LL.M from Tulane University. He is a volunteer attorney for the Catholic Charities Immigration Division.

Vance Winningham practices in the areas of immigration, naturalization and consular law. He is a member of the first board of trustees of the Washington, D.C.-based American Immigration Law Foundation. He is the founder and administrator of www.americanvisas.com, an Internet-based network of nationally prominent immigration lawyers, and is the only Oklahoma immigration lawyer currently listed for more than 10 consecutive years in "The Best Lawyers in America."

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