How to Get a Green Card

CHAPTER

1

All Ways to Get a Green Card

A. Family-Based Relationships

1. Related or Engaged to a U.S. Citizen

2. Related to a Lawful Permanent Resident

3. Other Relatives

B. Employment-Based Relationships

1. Priority Workers

2. Other Workers

C. Special Immigrants

D. Entrepreneur Immigrants

E. Asylum and Refugee Status

F. Diversity Visa Lottery

G. Amnesties

H. Private Bills

The official name for the green card is Permanent Resident Card or Form I-551. It has been called a green card because, when it was first introduced in the 1940s, the color of the plastic identification card with the alien’s photo, registration number, date of birth, and date and port of entry was green.

Over the years, the card’s color has been, at various times, blue, white, and pink, but now it is green again.

Front of Green Card

Back of Green Card

There are several ways a person can obtain a green card—that is, become a lawful permanent resident. The most popular ones are through family and employment. The other ways include proving that you’re fleeing from persecution, making large investments in the United States, and a few more obscure bases.

This book covers the green card categories most readily available to ordinary people, with an emphasis on family categories. However, this chapter will tell you a little about the other major green card categories, and where to go next if you’re interested in them.

Which U.S. Immigration Agencies Administer the Law

In 2002, legislation established the Department of Homeland Security (DHS), thus breaking what was formerly called the Immigration and Naturalization Service (INS) into three agencies under the DHS’s control. These new agencies include U.S. Citizenship and Immigration Services (USCIS), which took over public INS functions such as deciding on applications for immigration benefits; Immigration and Customs Enforcement (ICE), which now handles enforcement of the immigration laws within U.S. borders; and Customs and Border Protection (CBP), which handles U.S. border enforcement (including at land borders, airports, seaports, and interior areas near the border).

Federal court decisions also play a major role in interpreting or even nullifying portions of U.S. immigration laws and related federal laws. So, for example, the Supreme Court’s 2013 decision in U.S. v. Windsor was a groundbreaking moment for same-sex binational couples. By striking down portions of the federal Defense of Marriage Act (DOMA), it removed the primary obstacle blocking rights to a green card, a K-1 fiancé visa (which leads to a green card), or various nonimmigrant visas for accompanying spouses, based on a same-sex relationship with a U.S. citizen or permanent resident. The Supreme Court’s 2015 decision in Obergefell v. Hodges further cemented these rights, with its ruling that the U.S. Constitution guarantees a nationwide right to same-sex marriage. These changes also illustrate how U.S. immigration policy shifts according to political will.

Where to Find U.S. Immigration Laws

The entire set of U.S. immigration laws is available online and at law libraries, in Title 8 of the U.S. Code. Occasionally in this book, we’ll tell you where you can read a certain piece of the immigration laws by referring to the code section—for example, 8 U.S.C. § 1101.

However, immigration lawyers and government officials tend to use a separate numbering system for the same codes, preceded by the letters I.N.A., for Immigration and Nationality Act, so when we include citations here, we’ll also give you the I.N.A. section reference. The I.N.A. is available on the USCIS website (www.uscis.gov) under Laws.

A. Family-Based Relationships

Recognizing that the family is important in the life of the nation, the U.S. Congress created ways for family members to be reunited with their relatives who are U.S. citizens or lawful permanent residents.

1. Related or Engaged to a U.S. Citizen

If you are the spouse (opposite sex or same sex), child, brother, sister, or parent of—or are engaged to be married to—a U.S. citizen, you can potentially become a lawful permanent resident. The person to whom you’re related or engaged must start the process by filing a petition with USCIS or the U.S. embassy in your country of residence.

If you are the widow or widower of a U.S. citizen and it was a good-faith marriage (not a sham to get a green card), you can petition for a green card for yourself, provided you file the application (Form I-360) within two years of the death of your spouse (unless your spouse had already filed a Form I-130 for you), you weren’t legally separated at the time of death, and you haven't remarried.

2. Related to a Lawful Permanent Resident

If you are the spouse or unmarried child of a lawful permanent resident, you can obtain a green card—someday. To start this process, the relative with the green card must file a petition with USCIS. But you’ll have to wait, possibly several years, until you reach the top of a waiting list, then apply for the actual green card. After that comes more waiting, for your application to make its way through the system.

3. Other Relatives

If you are the aunt, uncle, niece, nephew, cousin, grandmother, or grandfather of a U.S. citizen, or if you are the brother, sister, parent, or fiancé of someone who holds a green card, you don’t qualify for a green card based on a family relationship. Understandably, the U.S. Congress had to draw the line on what constitutes a family for the purpose of immigration.

NEXT STEP

If you believe you qualify for a family-based green card, or are helping someone who does, here’s where to go next: Readers who are engaged to U.S. citizens, see Chapter 5. Readers who are married to U.S. citizens or permanent residents, see Chapter 6. Readers who are parents of U.S. citizens, see Chapter 7. Readers who are children of U.S. citizens or permanent residents, see Chapter 8. For how to bring in an orphan child, see Chapter 9. Readers who are brothers or sisters of U.S. citizens, see Chapter 11.

B. Employment-Based Relationships

If you don’t have a close family member who is a U.S. citizen or who holds a green card, you might be able to obtain a green card through a job offer from an employer in the United States—as either a priority or a nonpriority worker.

1. Priority Workers

Priority workers are people with extraordinary ability (such as an internationally known artist), outstanding professors and researchers, and multinational executives and managers. Another name for this category is employment-based first preference or EB-1.

Such highly skilled people have a relatively easy immigration process. Some don’t even need a job offer, and none are required to go through the difficult labor certification process that other immigrating workers must pass, in which the Department of Labor determines whether any qualified U.S. workers are available and willing to do the same job.

2. Other Workers

Applicants who have been offered jobs that require graduate degrees in the arts or sciences or a profession (such as a law degree), or a master’s degree in business administration (MBA), or a bachelor’s degree plus five years of specialized experience are eligible for immigrant visas. This category is known as employment-based second preference or EB-2.

These applicants will first need certification from the Department of Labor saying that no qualified U.S. worker is available, willing, and able to accept the job.

Also, ordinary professionals (without graduate degrees) and skilled or unskilled workers (factory workers, plumbers, domestic workers, carpenters, and the like) may apply for labor certification and a green card on the basis of a job offer. This category is known as employment-based third preference or EB-3.

SEE AN EXPERT

If you believe you qualify for any of these employment-based green cards, consult an experienced immigration attorney. As explained earlier, this book doesn’t cover employment-based immigration. The employer who has offered you a job (and you must have a job offer in almost all categories described above) might have an attorney with whom it regularly works. In fact, the Department of Labor’s labor certification rules require the employer to pay attorneys’ fees and other costs.

Be Ready to Wait Years for a Green Card

It could take you a long time to become a permanent resident under many of the immigrant visa categories described in this chapter. Once you or your U.S. petitioner files the first petition form to set the process in motion, however, it might become difficult for you to come to the United States as a tourist or another nonimmigrant, or to have your status as a nonimmigrant extended. That’s because, in order to obtain most nonimmigrant visas, you have to prove that you plan to return to your home country after your stay on the temporary visa—and it’s hard to prove permanent ties to your home country if you’re simultaneously planning to leave it behind and get a U.S. green card.

The only groups who needn’t be concerned with this warning are diplomats (A visas), employees of international organizations (G visas), intra-company transferees (L-1 or L-2 visas), and workers in specialty occupations that require a bachelor’s degree or its equivalent (H-1B visas). They are allowed dual intent in pursuing their immigration goals.

C. Special Immigrants

Certain categories of people may obtain a green card based on special laws intended to benefit limited groups.

priests, nuns, pastors, ministers, rabbis, imams, and other workers of recognized religious denominations

former employees of the U.S. government, commended by the U.S. Secretary of State for having performed outstanding service to the government for at least 15 years

medical doctors who have been licensed in the United States and have worked and lived in the United States since January 1978

former employees of the Panama Canal Zone

retired officers or employees of certain international organizations who have lived in the United States for a certain time, plus their spouses and unmarried children

foreign workers who have been employees of the U.S. consulate in Hong Kong for at least three years

foreign children who have been declared dependent in juvenile courts in the United States, and

international broadcasting employees.

All these people fall into a green card category known as employment-based fourth preference or EB-4.

SEE AN EXPERT

If you believe you fit one of these categories, consult an experienced immigration attorney. Special immigrants aren’t covered in this book. Your employer-petitioner might be willing to hire an attorney for you.

D. Entrepreneur Immigrants

An alien entrepreneur from any country who invests at least $1.8 million in a business (or $900,000 if the business is in an economically depressed area) and who employs at least 10 U.S. citizens or lawful permanent residents is eligible for a green card. Each year, 10,000 immigrant visas are set aside for this millionaire immigrant category, which is designed to create employment. This category is also known as employment-based fifth preference or EB-5.

SEE AN EXPERT

Are you financially able to qualify for a green card based on investment? If so, it’s well worth hiring an experienced immigration attorney to analyze the latest legal developments and help with your application.

E. Asylum and Refugee Status

People who can prove that they fled their country based on past persecution or out of fear of future persecution owing to their race, religion, nationality, membership in a particular social group, or political opinion may apply for legal status as refugees (if they’re outside the U.S.) or asylees (if they’re already inside the U.S.).

A person who gains U.S. government approval as a refugee or an asylee can apply for permanent residence status later (more specifically, one year after being admitted to the United States as a refugee or one year after asylee status is granted).

NEXT STEP

For more information on applying for refugee or asylee status, see Chapter 12.

F. Diversity Visa Lottery

The Immigration Act of 1990 created a green card category to benefit people from countries that in recent years have sent the fewest numbers of immigrants to the United States. You can enter the lottery if you are a native of one of those countries and meet certain educational and other requirements. Because the winners are selected through a random drawing, the program is popularly known as the green card lottery. Its official name is the Diversity Immigrant Visa Lottery.

There are 50,000 winners selected each year. They are chosen by dividing the world into regions and allocating no more than 7% of the total green cards to each region.

However, even if you win the lottery, you still have to make it through the green card application process—and many people fail, because they’re inadmissible or the government can’t process their applications by the deadlines set by law.

NEXT STEP

For more information on applying for the visa lottery, and what to do if you win, see Chapter 10.

G. Amnesties

Once in a while, Congress gives blanket green card eligibility to people who have been living in the United States illegally.

The most recent amnesty was offered in the early 1980s. Although anti-immigrant commentators regularly complain that every new law that benefits immigrants is an amnesty, there has been no actual amnesty offered since that time.

Some lawmakers have proposed bills offering an amnesty-like path to a green card in recent years, at least for DREAMers, or those who were brought to the U.S. when young. Keep your eyes on the news and the Nolo website for updates, and beware of the many scammers urging immigrants to pay to submit an application when no such application exists.

CAUTION

Interested in learning more about a past or upcoming amnesty? Consult an experienced immigration attorney or a local nonprofit. Don’t go to a USCIS office unless you want to risk deportation.

H. Private Bills

You might have heard of people who became permanent residents by means of a private bill passed by the U.S. Congress. However, such cases are rare. You must have very special circumstances—and strong political ties—to get a private bill passed.

Look into the possibility of a private bill where the law is against you but your case has strong humanitarian factors. Private bills succeed when an injustice can be corrected only by a special act of the U.S. Congress.

The successful ones tend to be people in unusually tragic situations, such as a family that came to the U.S. seeking cancer treatment for a child, only to have the father and mother of the child killed in a car wreck.

A private bill must be sponsored by one or more members of the U.S. House of Representatives and one or more members of the Senate.

It must be introduced in both houses of Congress, then recommended favorably by the Judiciary Committee to which it has been assigned in both houses, after having been favorably reported on by the Subcommittee on Immigration of both houses.

Both houses of Congress must approve the bill during a regular session. The president of the United States must then sign it into law.

In short, if you are a foreign-born person facing deportation, you will have to go through the eye of a needle before getting your private bill passed by Congress and signed by the president. Hiring the best immigration lawyer in town will likely give you a better chance to obtain a green card than will the private bill route.

CHAPTER

2

Short-Term Alternatives to a Green Card

A. How Do Foreign Nationals Enter the United States?

B. Types of Visas

1. Immigrant Visas

2. Nonimmigrant Visas

3. Nonimmigrant Visa Classifications

4. Deferred Action for Childhood Arrivals

5. Nonimmigrant U Visa Can Lead to a Green Card

C. Tourists Who Can Visit Without a Visa

1. What You’ll Need for VWP Travel

2. VWP-Eligible Countries

D. The Importance of Staying Legal

E. How to Extend a Visitor Visa

F. Changing Your Reason for Staying

G. What to Do If USCIS Denies Your Extension Application

H. Tips on Filling Out Form I-539

As you know, this book is only about green cards—or, in legal-speak, U.S. permanent residence. However, you probably also know that many people who want U.S. green cards will never be able to get one. The green card categories are very limited, and the application process is hard to get through successfully. That’s why this chapter will briefly tell you about other —sometimes easier—ways to come to the United States, even if it’s for a shorter time.

RESOURCE

Want to learn more about the ways to stay temporarily in the United States? See U.S. Immigration Made Easy, by Ilona Bray (Nolo).

A. How Do Foreign Nationals Enter the United States?

The basic rule is that most people may enter the United States only after receiving permission from the U.S. government, through the U.S. embassy or consulate in their own country. The permission or authority to enter the United States is called a visa, and is stamped in your passport by the U.S. consul. A major exception is if you are eligible to enter under the Visa Waiver Program; see discussion in Section C, below.

If you enter the United States without permission, without a visa or a visa waiver, and without being examined by the immigration authorities, you are called undocumented within the immigration laws and an illegal alien by the general public.

B. Types of Visas

There are two kinds of visas an alien can receive from the U.S. embassy or consulate: an immigrant visa and a nonimmigrant visa.

1. Immigrant Visas

Just to avoid confusion, we should mention that even those people who are in the process of getting a green card, as discussed in the rest of this book, must get a physical visa first if they’ll be arriving from another country. They receive what is called an immigrant visa. They receive the actual green card only after they have arrived in the United States and claimed their permanent residency. People who apply for their green cards from within the United States must also be allocated a visa number, although they’ll never see or receive a physical visa.

2. Nonimmigrant Visas

Nonimmigrant visas are the main topic we’ll introduce you to in this short chapter. A non-immigrant visa gives you the ability to stay in the United States temporarily with limited rights.

A visa that expires in a few years is probably your second choice, given that you’re reading a book on green cards. However, a nonimmigrant visa might serve you in two ways. First, it might allow you to legally visit the United States in order to decide whether you really want a green card, or to make a decision that will lead to your getting a green card. For example, a person might come to the U.S. on a tourist (B-2) visa to visit a U.S. citizen boyfriend or girlfriend and find out whether getting married seems like a good idea.

Second, a nonimmigrant visa might be your only choice for the moment. If your research, using this book and other resources, leads you to believe that you don’t qualify for a green card, then a nonimmigrant visa might allow you to at least live in the United States for a while, developing U.S. contacts or job skills, hoping that a green card opportunity will open up.

Unfortunately, nonimmigrant visas aren’t only short-term solutions, but they restrict your life in the United States in other ways. For example, a visitor visa (B-2) doesn’t allow you to work. A student visa (F-1 or M-1) doesn’t allow a student to stop studying in order to work. A temporary worker’s visa (H-1B), given to a professional worker such as an accountant or engineer, doesn’t authorize one to change employers without permission.

3. Nonimmigrant Visa Classifications

You will often hear visa classifications referred to in shorthand by a letter followed by a number. The following table summarizes the nonimmigrant visa classifications available.

4. Deferred Action for Childhood Arrivals

Another short-term alternative to a green card came not in the form of a visa, but as a special program to prevent deportation of people who came to the U.S. when they were very young, and had attended school and otherwise made the U.S. their home. Instituted by President Obama, the Deferred Action for Childhood Arrivals or DACA program’s future now is embroiled in lawsuits, following attempts by President Trump to cancel it. At the time this book went to print, current DACA holders could renew their status, but no new applications were being accepted. Congress also occasionally considers passing legislation to grant legal status to DACA recipients (also called DREAMers, a name drawn from the title of long-promised Congressional legislation) but so far has still failed to come to any agreement.

5. Nonimmigrant U Visa Can Lead to a Green Card

One of the visas mentioned on our summary table bears further explanation. The U visa, for people who have been the victims of crimes in the U.S. and suffered as a result, and who are cooperating with law enforcement officials, can ultimately lead to a U.S. green card. For that reason, we cover it in Chapter 18 of this book.

C. Tourists Who Can Visit Without a Visa

The Visa Waiver Program (VWP) allows the citizens of certain countries—that the Department of State (DOS) chooses, based on low rates of visa overstays or abuse—to visit the United States for 90 days without first having a tourist visa stamped on their passports.

1. What You’ll Need for VWP Travel

At the moment, 40 countries participate in the VWP. If you’re from one of these countries, and wish to enter the U.S. without a B visa, you’ll need to get these things first, before starting your trip:

A passport meeting U.S. government requirements. This means an electronic passport with an integrated chip (e-passport) that is valid for six months past your expected stay in the United States.

A ticket for both your arrival to and departure from the United States. Your arrival ticket needs to be with an airline or boat company that is authorized to carry VWP passengers. The exception is if you’ll be entering via Canada or Mexico, in which case, no departure ticket is required.

Prior U.S. government authorization. You’ll do this through the Electronic System for Travel Authorization (ESTA), online at https://esta.cbp.dhs.gov. You can apply at any time prior to travel. There is a processing charge of $21. Authorizations are generally valid for up to two years, or until your passport expires, whichever comes first. If you don’t receive authorization, you’ll need to apply for a nonimmigrant visa at a U.S. embassy or consulate.

Entry fee. Travelers arriving at a land border (from Canada or Mexico) will be required to pay an entry fee.

CAUTION

Nationals of or visitors to countries with ties to terrorism can’t use the VWP. Congress has prohibited its use by nationals of or recent visitors to high-risk countries with ties to terrorism. Nationals of a country on the terrorism watch list who carry the passport of another country that is on the VWP list would thus be excluded from VWP travel. There are minor exceptions, including for people performing military service in a country of concern, or based on law enforcement or national security interests. This isn’t an outright prohibition on U.S. entry: People who can’t travel on the VWP can still apply for a visitor visa at the nearest U.S. embassy or consulate.

EXAMPLE: You want to visit the United States for two months. If you live in a country that is included in the VWP, you first make sure your passport meets U.S. requirements, then get authorization to travel by filling out the online ESTA application, and then buy your round-trip plane ticket to the United States. You don’t need to visit a U.S. consulate to get a tourist visa. You might, however, upon arrival in the U.S., be asked to show your departure ticket as evidence that you are simply visiting and that you will return to your country within the 90-day limit.

2. VWP-Eligible Countries

Under the Visa Waiver Program, citizens of the following countries who can present a machine-readable passport are exempted from getting visas before entering the United States:

To be included in the Visa Waiver Program, the country must have:

a very low rate of refusals of tourist visa applications, and

few violations of U.S. immigration laws.

In short, countries whose citizens are least likely to stay too long or work illegally in the United States are most likely to be included in the Visa Waiver Program.

Disadvantages of Entering the U.S. on the VWP (Without a Visa)

There could be disadvantages to entering the U.S. under the Visa Waiver Program.

You can’t change your tourist status to another nonimmigrant status, such as that of student or temporary worker, nor can you request an extension of your 90-day stay.

With few exceptions, you also can’t change your status to a lawful permanent resident while staying in the United States.

In addition, should U.S. border officials deny you entry into the United States for any reason, you have no right to appeal. Political refugees who are fleeing persecution and who apply for asylum in the United States are the sole exception. (See Chapter 12.)

D. The Importance of Staying Legal

If you enter the United States as a tourist, student, temporary worker, entertainer, or in any other nonimmigrant category, your chances at a future green card depend on your maintaining your legal status and not violating the conditions of your stay in the United States. Don’t overstay the time limits of your visa (usually shown on a Form I-94). Don’t work when you aren’t authorized to work. Don’t change schools or employers without first requesting and receiving permission from U.S. immigration authorities.

The consequences for breaking the rules controlling immigration can be quite serious: You could be detained in an immigration jail; removal proceedings could be started against you; and, if deported, you could be barred from returning to the United States for the next 5 years or more.

Even if you aren’t deported, if you overstay by 180 days (around 6 months) and then leave the United States, you will have to remain outside for three years before being admitted again. If you overstay by 12 months and then leave, the waiting period is 10 years before you will be allowed to return. (See Chapter 3.)

More to the point, by obeying the law, you can make use of almost all the ways enumerated in this book to stay in the United States, as long as your current status is legal.

If you are running out of time on a permitted stay, one possibility is to apply to extend it (if you can show a good reason for needing more time) or to change your status, for example from tourist to temporary worker. You can apply for extensions or changes of status only (in most cases) if your current immigration status is legal, you aren’t overstaying a visa, and you haven’t worked illegally.

If, instead, you overstay, your visa will be automatically void—even if it is a multiple entry, indefinite visa. You will then be required to apply for a new visa at the U.S. consulate in your home country, unless you can prove exceptional circumstances.

If there is some issue in your case, or if you need to change status, seek professional advice from an experienced immigration lawyer. (See Chapter 23.) Don’t depend on advice from your friends or relatives, or worse, information on the internet.

E. How to Extend a Visitor Visa

Temporary business or tourist visitors—those who hold B-1 or B-2 visas—once admitted to the United States, can apply for an extension of stay. The basis can be business circumstances, family reasons, or any other good reason consistent with your visa.

For example, a tourist who decides to visit different locations or to spend more time with relatives can seek an extension. (See the USCIS website at www.uscis.gov for filing details and addresses; you may file electronically on the USCIS website or by mail.)

The application must include the following:

Form I-539, Application to Extend/Change Nonimmigrant Status

a copy of your Form I-94, which you (unless you’re one of the few people who received a paper I-94 card when entering the U.S.) will need to download from the U.S. Customs and Border Protection (CBP) website at https://i94.cbp.dhs.gov

a filing fee (currently $420 for an online filing and $470 if submitting on paper); either personal check or money order will be accepted

a company letter or other supporting documentation stating the reason for the extension request—for example, more business consultations, ongoing medical reasons, extended family visit with a complete itinerary, or another reason

evidence to show that the visit is temporary—particularly, evidence of continued overseas employment or residence and a return plane ticket, and

evidence of financial support, such as a bank letter including amounts in accounts. You can also have a family member promise to support you, by filling out USCIS Form I-134, available at www.uscis.gov/i-134.

Also attach an itinerary or