Path to U.S. Citizenship

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available.

The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship.

Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa.

Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted.

The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations.

<Gaining admittance to the US>:

Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

The process for obtaining a visa, even a non-immigrant visa, may be quite onerous. First, the foreign national must go to the U.S. consulate in their country (unless they are coming to the U.S. under an employment or familial relationship, in which case the employer or family member would be the petitioner for the foreign national and thus in most cases the petition would first be filed with the United States Citizenship and Immigration Services, or USCIS). At the U.S. consulate, the determination is made as to whether the foreign national is eligible under their specific visa category. In addition, the foreign national must show that they are not inadmissible under INA 212(a). Inadmissibility may be based on the foreign national’s health, past convictions, or other grounds such as trafficking or terrorist activity. Once the individual gets a visa, they can go to the U.S.

However, because the visa is simply the mechanism that allows someone to arrive in the U.S. at a designated port of entry, the foreign national still cannot enter the U.S. without first passing border inspection by Customs and Border Protection (CBP). The inspection is designed to ascertain whether the person entering the U.S. is doing so for the reasons that are allowed under the visa category in which they apply. In addition, the CBP officer sets the amount of time the foreign national may stay in the U.S. Even though a person may have a visa that is valid for a certain time period, the CBP officer is allowed to set the duration of stay to be shorter than the visa validity period. Of course, if eligible, a foreign national may change the actual length of his stay by seeking an extension, or a change or adjustment of status with USCIS later.

<Permissible non-immigrant visa categories>:

Nonimmigrant visa categories were created to encourage foreign nationals to come to the U.S. for various purposes that benefit American policy. However, immigration policy is also designed to prevent foreign nationals from taking advantage of their status within the U.S. Therefore, different visa categories are distinct from each other, and the different categories are designed to prevent immigrants creating disadvantages for American citizens.

Generally, those who wish to come to the US, even if they apply under a nonimmigrant visa, are assumed to intend to immigrate to the U.S. Thus, non-immigrants must prove that they do not intend to become a permanent resident, unless they are applying under certain non-immigrant categories that allow for dual intent. Dual intent means the nonimmigrant can desire to become a permanent resident, and take steps towards that goal, without violating non-immigrant status. Generally, if a nonimmigrant is not traveling to the U.S. under a visa that allows for dual intent, they must demonstrate that they are a permanent resident in another country and have ties that will call them back.

(1) Visitor Visas:

Visitors who come to the U.S. in order to conduct business that falls short of work or labor can apply for the B-1 visa. Thus, a foreign national may travel under a B-1 if they are advertising their business, attending a business meeting, or negotiating a transaction. The foreign national cannot sell, solicit donations, or receive payment for his business activities from a U.S. source. The inquiry as to whether a foreign national is conducting business but refraining from working is often a fact-based one, and it may be difficult to determine whether certain actions are permissible under a B-1. Thus, those foreign nationals under this visa must be careful in conducting their business.

The most common visa is the B-2 visa, which is for those foreign nationals visiting the U.S. for pleasure. This general category includes tourists, those who are visiting the US for medical treatment, and people who are participating in amateur athletics. The B-2 visa is issued to those who can demonstrate that they will not work while in the U.S., are coming for a specific purpose, and will depart at the end of the visit.  Many visitors whose visit qualifies for the B-2 requirements do not need to even apply for a visa, since the Visa Waiver Program allows citizens of certain countries to enter the U.S. for pleasure without applying for a visitor’s visa.

(2) Student Visas:

Students who wish to come to the U.S. to further their education can come under an F-1, J-1 or in some cases M-1 visa. All of the students who come under these categories are recorded under the SEVIS system, which is accessed by the administering official at the school, called the Designated School Official (DSO).  This official is also the student’s liaison for the monitoring of foreign students requirements under the visa, and ensuring compliance with the additional requirements for transfers, reduction of course load, and employment. Thus, it is imperative for a student under these visa categories to communicate any changes involving course load, a job, or transfers to his DSO. Failure to communicate these changes constitutes a violation of that student’s visa status.

The F-1 visa is the largest educational visa category, and those who are coming to study in a full-time program at an approved institution are eligible under this visa. The student must present the consular officer in his nation with a SEVIS form I-20 from the approved institution to obtain the visa.  F-1 students generally cannot attend a public elementary or high school, unless that student has shown that he will attend for less than 12 months and that he has paid the school district the full cost of the educational program. The student must also demonstrate an ability to pay for his tuition without having to work within the U.S. Some employment under an F-1 is permitted as long as it is not essential for that student’s support. In addition, during the F-1 student’s first year under his status, he cannot engage in off-campus employment. After the first year, the student may engage in Curricular Practical Training (CPT), Optional Practical Training (OPT) or Science, Technology, Engineering, and Mathematics OPT Extension (STEM).  These off-campus employment options must be related to the student’s area of study, and must be authorized prior to starting any work by the DSO.

A J-1 is the visa for exchange students, and can also include academic researchers, doctors, au pairs, teachers, and summer students. Unlike those who come under an F-1, the J-1 visa applicant does not need to be attending an approved institution for four years, and does not have to demonstrate ability to pay the full tuition without working. The distinguishing feature of a J-1 is that the foreign national may be required to travel back to their native country for 2 years before they can change their non-immigrant status or before they can adjust to permanent resident status.  The purpose of this 2-year residency requirement is to have these J-1s go back home and facilitate cultural exchange by sharing the knowledge they have gained while in the U.S. However, since returning to their native country may be onerous to foreign national who has already put down roots in the U.S., there are several waivers available for those who wish to avoid the 2-year residency requirement. These waivers can be given if the J-1 can show that 1) their home country has issued a no objection statement, 2) an interested U.S. Federal Government Agency has issued a request for a waiver, 3) the J-1 will be persecuted on the basis of race, religion or political opinion if they return, 4) a U.S. citizen spouse or child will suffer an exceptional hardship if the J-1 leaves for 2 years, or 5) a designated State Public Health Department has issued a request for a waiver, which is only available for those who have graduate medical training and will work full time at a designated health care facility.

The M-1 visa is the one for those who are engaging in vocational study. These students must be engaged in a full-time program at a recognized nonacademic institution. In addition, M-1 students may not engage in practical training until after they have completed their studies. However, unlike F-1 students they do not have the restriction on attending public institutions.

(3) Treaty Visas:

In order to facilitate has ongoing treaties of commerce with dozens of countries, the U.S. offers E-1 and E-2 visa status to foreign businesspeople from those nations that are conducting business under those treaties. An E-1 visa is for treaty traders, and an E-2 visa is for treaty investors. A treaty trader must be engaged in substantial trade between the U.S. and their home country, and a treaty investor must be directing an enterprise in which he has invested a substantial amount of capital.  The substantiality requirement usually means that a treaty trader must derive more than 50% of his business from activities under the treaty, and a treaty investor must have established a viable enterprise with his investment. E visas have duration of 2 years and may be extended in 2 year increments indefinitely as long as the business is maintained. An E visa holder may go on to eventually apply for permanent residency while in the U.S.  However, due to the requirement that a treaty national must still return to their home country at the end of their stay in the absence of any further extension requests, any trips taken abroad after having started a green card process may jeopardize the treaty national’s ability to return to the country.  See Treaty Traders and Investors.

(4) Temporary Employment Visas:

(a) H-1B Visas:

The H-1B visa is very popular with foreign nationals because it can apply to a wide range of people. Due to this popularity, Congress has capped the number of H-1B visas at 85,000 a year, with 20,000 set aside for people with advanced degrees.

The H-1B applies to those who are coming to the U.S. to engage in a specialty occupation, which requires the application of highly specialized knowledge and a bachelor’s degree, or equivalent, in the field. Since it is an employer-sponsored visa, the employer must obtain a labor condition application (LCA) from the Department of Labor. The employer must also pay the foreign national a wage that is equal to that paid to similarly qualified workers, or the prevailing wage for the position in the geographic area if the geographic wage is higher. The working conditions must also not adversely affect other similarly employed workers, there must not be a strike at the company, and notice of the DOL filing must be given to the union representative, if applicable, and existing workers. These requirements are designed to prevent foreign workers from being used as leverage in bargaining with unions, and to prevent foreign labor from being used as a cheap alternative to domestic labor.

The H-1B nonimmigrant may be admitted for up to 3 years, and that status can be extended up to a total of 6 years. If H-1B visa holders apply for permanent resident status, and the application is still pending or a visa number is still unavailable by the time the H-1B 6 year period runs out, an H-1B visa holder is allowed to extend his H-1B status further in 1 year and up to 3 years in increments until they receive or are denied their green card. Thus, successfully gaining immigrant status from an H-1B visa is a question of timing, since the foreign national must ensure that he starts his green card process before the 5th anniversary of the foreign national gaining his H-1B visa.  See Basic Overview of the H-1B Visa Qualifications and Procedures.

(b) Other H-Visas:

The H-1C, H-2A, H-2B and H-3 visa categories apply to some other types of temporary workers.  The H-1C visa is for professional nurses working in areas with a shortage of nurses. H-2A visa holders are those who come to perform agricultural labor of a temporary or seasonal nature, and H-2B visa holders are those who come to perform similar work of a non-agricultural nature.   Finally, the H-3 visa is for individuals who are receiving instruction or training in any field, cannot get such training in their home country, and are trying to get such training in order to pursue a career outside of the US.

Of these remaining H-visa categories, the H-2B visa is the most popular, because it is the most widely applicable. The quota for the H-2B visa program is restricted to 66,000.   The employer making the petition must show that US workers cannot be found to fill the position. To prove that, employers must advertise for qualified domestic help for 60 to 120 days prior to the application for the foreign worker, and must document that advertising and show that no one responded. In addition, the employer must pay the prevailing wage.  Finally, the employer must show that the work is truly temporary in nature.

(c) L Visa – Intracompany Transferees:

If a foreign company or nonprofit wishes to send a corporate executive or manager to its parent, subsidiary or branch company in the U.S., it could use an L-1A visa to accomplish that goal. The individual that it wishes to send must have been continuously employed at the parent company for at least a year within the last three years.  In addition, the individual must be a manager – who supervises professional workers and manages the organization, an individual who manages a function or oversees a component of the company, or an executive, who gives direction to managers.

The L-1A visa is another visa category that is available for dual intent, in which the employee can seek lawful permanent residency after a year of presence under the L-1A visa.  The L-1A visa is good for a maximum initial stay of 3 years, with optional extensions up to a total of 7 years.

The L-1B visa is for company employees who are specialists. The specialization requirement does not mean that the employee must have education or experience in a certain field; rather, it means that the employee has either special knowledge of organization’s product and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. The L-1B visa allows a maximum initial stay of 3 years up to a total of 5 years.

In either case, after running out of L-1 time and absent a separate viable work status and/or the completion of an employment-based green card process an L-1 visa applicant will need to return overseas for at least one year before being able to reapply for L-1 status again.

(d) Extraordinary Abilities – O Visas:

The O-1 visa applies to those who have been nationally or internationally recognized for extraordinary abilities in the sciences, arts, education, business, athletics, or those who have been recognized for extraordinary achievement in the movie or television industry. This visa category is reserved for those who have risen to the very top of their field of endeavor, or those who are renowned in their field. This ability must be proven by either a major international award, or at least 3 of the following 8 criteria:  “(1) a national or international award; (2) membership in an organization in the relevant field that requires outstanding achievement; (3) publication about the person’s work in professional or major trade publications; (4) having been called on to judge the work of others in the particular field; (5) original work of major significance in the field; (6) authorship and publication of scholarly work in the field; (7) evidence that the person has been in a critical or  essential employment capacity with an organization of distinguished reputation; or (8) evidence that the person has or will command a high salary in the field.”

The O-visa category also allows those who are assisting the O-1 visa holder to come to the U.S. as well.  These nonimmigrants can come in under the O-2 visa, so long as they are assisting the O-1 visa holder in furtherance of their performance, and the skills used in the assisting are not of a general nature. The application must be filed within a year of the date on which the O-1 visa holder would start employment, and must demonstrate the essential character, skills and experience that the O-2 beneficiary has in supporting the O-1.

For all O-visa types, the initial period of stay is for a maximum of 3 years, and it may be extended in increments of 1 year according to USCIS determination as to the time necessary to accomplish the event or activity for which the O-visa holder travelled to the U.S.

(e) Athletes and Entertainers – P-Visa:

The P-visa is for athletes and entertainers, with the P-1A reserved for internationally recognized athletes and the P-1B for members of internationally recognized entertainment groups.

A P-1A athlete can be traveling to the U.S. to compete individually or as part of a team. If they are traveling to compete individually, they must demonstrate that they are internationally recognized. If they are traveling to compete as part of a team, they must both show that they are internationally recognized and that the event is one that requires teams of international recognition.  The individual athlete can stay for the time needed to complete the competition or event, with the initial stay not to exceed 5 years and total stay not to exceed ten. The athlete who joins a group can stay for the time needed to the complete the competition or event, in increments of up to a year, which can be extended indefinitely.

For those who are traveling as entertainers under the P-Visa, they generally come in under the P-1B visa. P-1B visa holders must be part of a group, unlike the P-1A which allows the athlete to come as an individual.  In addition, reputation of the group, not that of the individual entertainer, is dispositive. This means that even if the entertainer coming under the P-1A visa is internationally acclaimed, they cannot travel to the U.S. to join an obscure group under the P-1A visa. The entertainer must also demonstrate that they have had a substantial relationship with the group for at least a year. A nationally recognized group may waive the international recognition and 1-year duration requirements for up to a quarter of the members of the group, if the P-1A beneficiaries are replacing essential members of the group due to special circumstances such as illness.

(f) Cultural Exchange – Q Visa:

The Q visa is for those participating in an international cultural exchange program. The program must take place in an establishment such as a school, business or museum, and the program must be designated by USCIS. The program must explain the attitude, customs, history or tradition of the person’s country. In addition, the individual must be at least 18 and able to communicate effectively about his country. The duration of the Q visa is 15 months and the person must have a foreign residence. If the nonimmigrant has already been in the US for 15 months under a Q visa, he must leave for at least a year before being readmitted under a Q visa.

(g) Religious workers – R-Visa:

Religious workers who work in a professional capacity for a religious organization can enter the U.S. under an R-1 visa. The occupation must relate to a religious function, such as missionaries, priests or other members of the clergy, or lay religious workers such as religious broadcasters and kosher butchers. The visa holder must have been a member of the religious denomination for a minimum of 2 years before the application filing. The organization itself must have a bona fide nonprofit religious status in the U.S. Factors that determine that status include ecclesiastical government, creed, a formal code of doctrine, or religious services. The initial duration of stay is up to 30 months, and can be extended for up to another 30 months for a maximum total of five years.

(h) NAFTA Treaty Workers – TN:

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada, and Mexico.  The non-immigrant NAFTA Professional (TN) visa allows citizens (permanent residents are not eligible) of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers. Only professional positions as listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA are permissible under the TN. The visa application may be submitted in person at the border or port of entry, or an employer may petition to USCIS for a change or an extension of status. A TN visa may be issued for up to three years at a time and may be renewed indefinitely provided one remains eligible.

(5) Family-Related Visas:

Individuals can generally travel to the U.S. under one of the preceding non-immigrant categories as a derivative beneficiary, if they are the spouse or minor child (single and under 21) of the individual holding the non-immigrant visa.  The exceptions to that rule are the B-1 Visa, Q Visa and D Visa. For these categories, the spouse or child must apply separately and independently for an eligible visa category, and generally the only available one is the B-2 (visitor for pleasure).  In addition, a person can gain nonimmigrant status and travel to, and stay in, the US under the following two non-immigrant categories: the K-visa and the V-visa.

(a) K-Visa for Fiancé(s) and Spouse(s):

Those individuals who are engaged to a U.S. citizen can gain entry to the U.S. for the sole purpose of getting married, so long as the marriage occurs within 90 days of their admission. The individual must establish that he has the legal capacity to marry and that they met their U.S. citizen fiancée within 2 years of filing the petition.

The K-3 visa category allows a non-immigrant who has already married their U.S. citizen spouse, and awaits approval of the immediate-relative petition filed by the U.S. citizen spouse on their behalf to stay in the U.S. for up to 2 years with their spouse while their petition was reviewed.

K-visas are very similar to other green cards awarded to family members, but allow for special expedited process due to the LIFE Act, which was passed to expedite the reunification of separated families. However, to qualify for a K visa, the spouse must be a U.S. citizen and cannot be a permanent resident. The K-2 visa is for the children of a fiancée. A K-3 visa is for the wife of a U.S. citizen, and the K-4 is for stepchildren. For all K visas, a medical examination is required prior to entry.

(b) V-Visa for Family of Permanent Residents:

A small class of 2,000 visas is available if an immediate family member (spouse or children) of a U.S. citizen or permanent resident has been waiting more than three years to enter the United States, and the petition for the family member to come to the United States was submitted prior to December 21, 2000. This visa allows immediate family members to enter the United States while they wait approval of their other applicable visa. Those spouses or children of permanent residents who were present in the U.S. illegally can still gain legal admission under the V-visa, but must seek a waiver when they apply for adjustment of status.

(6) Trafficking and Violence Visas:

(a) U-Visa:

The U-visa is for an individual who has been a victim of serious violent crimes, including domestic violence, and who has suffered mental or physical abuse as a result. The victim must be helping or likely to be helpful to law enforcement relating to the crime. This Visa allows adjustment to permanent residency after 3 years.

(b) T-Visa:

As part of the Convention Against Torture, those who had been victims of severe trafficking can stay in the U.S. under this visa. Trafficking includes both sexual and physical labor, and the visa is available to those who agreed to assist law enforcement in combating trafficking, or those who are under 18 and likely to suffer extreme hardship if they were subject to removal. The T visa is for 3 years, and allows adjustment to permanent residency.

(c) Other:

Other visa categories exist, such as I-visas (for representatives of foreign media), S-visas (for informers on criminal enterprises), A-visas (for heads of state), G-visas (for officials of international quasi-governmental organizations), C-visas (for continuous transit through the US), D-visas (for those working as crew members on airlines and shipping vessels), NATO Visas (for representatives of nations in NATO), N-visas (for parents of undocumented persons accorded special immigrant status), and the TWOV visas (for passengers passing through US airports – temporarily suspended). These visa categories are very specific and not very common, so only a cursory description was given in this memo.

<Green Card Through Family>:

(1) Immediate Family:

To promote the family unit, the United States allows current citizens to petition to bring spouses, unmarried children under the age of 21, and parents if the U.S. citizen is over the age of 21. This process can be done outside or inside the United States; if outside, the family member would work with the U.S. consular in their native country. Foreign nationals seeking entry through this method have special priority and do not wait in line for a visa number to become available.

(2) Family Members Subject to Visa Quotas:

A U.S. citizen may be able to sponsor other family members through the “family specified category.” This includes an unmarried son or daughter over the age of 21, married children of any age, and siblings if the U.S. citizen is over the age of 21. Congress limits this visa category; therefore, there may be a significant wait for a visa number to become available. In addition, children who change their marital status from married to unmarried in order to gain access into the United States may delay their entrance.

(3) Family Members of a Permanent Resident:

Permanent residents in the United States may petition to have their spouse and unmarried children, of any age, join them in the U.S. Although children of any age qualify for this visa, children over the age of 21 have additional security screening and may take longer to be issued a visa as a result. Therefore, children turning 21 during the process may cause delay. Additionally, if children get married throughout the process, they are not eligible for this visa.

<Special Categories of Family Members>:

There are a variety of special visas available for special family circumstances that allow both citizens and permanent residents to petition for family members to enter the U.S. These categories include battered spouse or children, fiancées, children of foreign diplomats, widowers of U.S. children and certain family members waiting for another visa’s approval. Family members who have been battered or abused by a U.S. citizen or permanent resident must petition directly to be granted a visa under this category.

(1) Battered Spouse or Children:

The Violence Against Women Act amended the Immigration and Nationality Act to give special protection to foreign nationals subject to domestic violence by a U.S. citizen or a permanent resident. This amendment was to help ensure immigrants were not subject to domestic violence due to the fear of losing their residency status if they left an abusive relationship. Spouses, children and parents, in some situations, may qualify for this visa.

A spouse of a U.S. citizen or permanent resident may apply if they meet 5 categories. First, they must meet the relationship qualifications, which include married to an abusive spouse, the visa may be available if the marriage was terminated due to death or divorce (related to abuse) within 2 years of filing, one’s spouse lost or renounced their citizenship within 2 years of the petition due to domestic violence, or one incorrectly believed they were legally married to a U.S. citizen or permanent resident, but the marriage was illegitimate due to bigamy. Second, the petitioner must have suffered battery or extreme cruelty. This means either they, or their children, has been subject to battery or extreme violence. Third, the marriage must have been in good fail and not to gain residence. Fourth, the petitioner must have lived with their spouse while residing in the United States. Finally, the petitioner must be a person of good moral character.

Additionally, help is available for anyone suffering from domestic violence by calling the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD).

Children must meet four qualifications to obtain this visa. First, they must be a child of a U.S. citizen or permanent resident that is abusive, or a child who lost their visa due to a domestic violence incident. Second, they must have suffered battery or extreme violence from their parent who is a citizen or permanent resident. Third, they have resided with their abusive parent. Finally, they have good moral character. Children under the age of 14 are assumed to have good moral conduct.

Parents may only file for this visa if their child was a U.S. citizen and they meet the four criteria. First, the petitioner must be the parent of a U.S. citizen who is at least twenty-one years old, a parent of a citizen who lost their or renounced citizenship due to domestic violence, or a parent of a citizen whose child died in the last two years. Second, the petitioner must have suffered battery or extreme cruelty by the citizen child. Third, the petitioner must have resided with the abusive child. Finally, the petitioner must be a person of good moral character.

(2) Foreign Diplomats:

The United States offers special visas to children born in the United States to foreign diplomats. Eligible diplomats include Charges d’affaires, ambassadors, ministers, counselors, Secretaries and attaches of embassies and legations, and Members of the Delegation of the Commission of the European Communities. Additionally diplomats may qualify under the United Nations if comparable in status.  For children to be eligible, they must have been born in the United States, have resided in the United States since birth, and not abandoned their U.S. residency. A medical examination is not required because they have resided in the United States their entire life.

(3) Widow(er) Visa:

If a foreign national was married to a U.S. citizen and the citizen dies, the widow(er) may be eligible for permanent resident status. To qualify, the widow(er) must have been married at the time of the citizen’s passing, must file the forms necessary for permanent resident status as a widowed spouse of a citizen, must have not remarried or have been legally separated at the time of death, must have entered the marriage in good faith and not for immigration status, and finally must be admissible into the United States. This status can be filed for outside the United States, and a medical examination is required.

<Green Card Through Investment>:

Through the EB-5 program, entrepreneurs may apply for one of (up to) 10,000 visas each fiscal year if they are going to invest $1,000,000 in a new business, or at least $500,000 in a targeted area with high unemployment rate or a rural area, and create at least ten permanent full time jobs for qualified Americans. See EB-5 Investor Visa Overview.

<Green Card Through Employment>:

(1) Employment-Based (EB) Visa – Job Offer Required:

Visas are available for foreign nationals who are sponsored by an employer to come to the United States for a specific job. Absent some exceptions and in order to be sponsored for an EB visa an employer generally must first prove that they were unable to fill the position with a U.S. worker.  Then the employer needs to petition on behalf of the foreign national with USCIS before the foreign national may eventually move onto applying for a green card.

(2) Self-Petition:

Individuals may self-petition for permanent residency in the United States if they possess extraordinary abilities in science, arts, education, business or athletics. Self-petitioners do not need to have a job offer pending; however, to qualify as extraordinary, the individual must be considered the best within their field.

(3) Other Special Job Categories:

Individuals who possess certain skills may be able to apply for permanent residence. Under these visas, foreign nationals receive special immigrant classification that may vary depending on their skill set. Additionally, the application for these visas may deviate from the standard employment based visas. Due to wide variety, it is best to check with the U.S. Citizenship and Immigration Services department for specific information on each sub-classification. The different categories include: Afghan/Iraqi translator, armed forces member, broadcaster, and international organization employees, Iraqis who assist the U.S. government, a NATO-6 nonimmigrant, a Panama Canal employee, physicians, and religious workers.

<Refugee or Asylee Status>:

Refugees and individuals granted asylum in the United States may apply for permanent resident status after being in the United States for one year. The United States classifies a refugee as someone who lives outside the United States, is of special humanitarian concern, has not been resettled in another country, and is able to demonstrate they were persecuted or feared persecution due to race, religion, nationality, political opinion, or membership to a certain group. See Asylum Seekers.

<Other Permanent Resident Visas>:

There are a variety of narrow and specialized visa programs for certain individuals. Many of the remaining visas were adopted to pave the path to citizenship of certain communities, Cuban and Haitian refugees or trafficking victims, who have been present in the United States for a number of years.  These visas are considered special categories and it is best to check with U.S. Citizenship and Immigration Services department for changes or specific criteria.

<Citizenship Through Parents>:

An individual born outside the United States can obtain U.S. citizenship through their parents either at birth, or after birth but before age 18. If an individual fits within the necessary criteria, they will be granted citizenship, in general, upon the completion of the necessary paperwork.

(1) At Birth:

In general, a child will automatically be granted citizenship if the child’s parents are married in the following two scenarios. First, both of the child’s parents are U.S. citizens at the time of birth, and at least one parent lives in the United States, or one of its territories, prior to birth. Second, if one parent is a U.S. citizen at the time of birth, both parents were married, the child was born on or after November 14, 1986, and the U.S. citizen parent had been physically present in the United States, or her territories, for five years prior to birth, two of which were after the parent’s 14th birthday, then the child will qualify for automatic citizenship.

If the child’s parents are not married, the child may still qualify if the legal mother is a U.S. citizen at the time of birth, the child’s birth date is on or after December 23, 1952, and the mother had previously resided in the United States for at least one year. The term “legal mother” includes both genetic and non-genetic gestational mothers. A child can also gain citizenship through their unmarried father if their mother is not a U.S. citizen. To claim citizenship under the child’s father, the father must be a U.S. citizen at the time of birth, the birth date must be on or after November 14, 1986, the blood relationship between the child and the father must be clear and convincing, and the father, unless deceased, has agreed to provide financial support until the age of 18. In addition, while the children is under the age of 18, the child must be legitimated under U.S. law by the resident father and the citizen father must have been present in the United States, or Her territories, for five consecutive years with two of those years being before the child’s 14th birthday. If the father spent time overseas due to service of the government or qualified international organizations, that time will count toward the five consecutive years.

(2) After Birth:

After a child is born, but before the child turns 18, the child may qualify for automatic U.S. citizenship under the following scenarios. First, a child will be granted automatic citizenship if the child was under 18 or not yet born as of February 27, 2001, and the child is residing in the U.S. under the legal custody of one of the child’s parents who is a U.S. citizen.

Second, if the child was under 18 from December 24, 1952 to February 26, 2001 the child would be granted automatic citizenship if the child was a Green Card holder and both parents were naturalized before the child’s 18th birthday. In the alternative, as long as the child was born within the above timeline, the child would still be eligible if one parent died, and the surviving parent naturalized before the child turned 18, or if the parents separated, but the child remained in legal custody of the parent who naturalized before the child turned 18, or if the child was born out of wedlock but both parents naturalized before the child turned 18.

Third, a child adopted by a U.S. citizen parent may be eligible for automatic citizenship. A child must legally resides in the United States, be in the physical custody of the U.S. citizen parent after February 27, 2001 but before the child’s 18th birthday, and meet one of the following three criteria. The adoptive parent adapted the child before their 16th birthday, had legal custody, and lived with the child for at least two years; or the child was admitted in the U.S. as an orphan or convention adoptee and the adoption took place overseas; or the child was adopt as an orphan or convention adoptee and the adoption is completed in the United States prior to the child’s 18th birthday. Convention adoptions are adoptions that fall within the guidelines of the Hague Adoption Convention.

<Citizenship Through Military Service>:

In recognition of their valuable service, the United States offers an expedited immigration process for foreign nationals, and their spouse and children, who serve in a branch of the United States military.

(1) Service Men and Women:

Members of the armed forces are eligible for naturalization if they are over the age of 18, have served honorably for at least 1 year, are a permanent resident at the time of examination on the naturalization application, are able to read, write and speak English, have a working knowledge of U.S. government and history, possess good moral character, believe in the principles of the U.S. Constitution, and have continuously resided in the United States for at least five years and has been physically present in the United States for at least 30 months out of those five years. However, the residency and presence prong may be waived if the individual is still a member of the armed forces.

Additionally, a member of the armed forces who serves during periods of hostilities is eligible for naturalization if they meet the same criteria as above. However, the residency or presence require is waived if they have been lawfully admitted as a permanent resident. Additionally, unlike standard military service, in periods of hostilities honorable service can be as brief as one day. Traditionally, periods of hostilities have been the major periods of war during the twentieth and twenty-first century. Currently, service since September 11, 2001 qualifies, and this period will terminate with a Presidential Executive Order.

(2) Spouses and Children:

Spouses and children of members of the military may be eligible for an expedited naturalization process. The naturalization criteria remain the same, but in honor of their family members service, the process of naturalization may be expedited.

(3) Survivor Benefits:

If the spouse, parents or children of a deceased service member, they are eligible to apply for expedited naturalization. The naturalization criteria remain the same, but in honor of their family member’s service, the process of naturalization may be expedited. To qualify, the deceased spouse must have severed honorably in active-duty and the spouse must have died as a result of injury or disease from combat. Additionally, the remaining survivor must not have been legally separated, the survivor must not remarry prior to obtaining permanent residence, and the survivor must file a petition within two years of the spouses’ death.

Immigration laws are extremely complex and multi-layered.  To explore a viable option for you or someone you know contact our office for help.