Seattle Immigration Lawyer | Eligibility for a Green Card through Employment

My last Seattle Immigration Lawyer Blog post provided an introduction to the rather daunting process of obtaining a green card through employment. This post will go a little deeper into the eligibility requirements. Before you consider this route, you must have these two things going for you: a job offer from a U.S. employer (there are limited exceptions, including if you possess exceptional abilities or your work is in the national interest), and the employer must be generous enough to sponsor you.

If you have both of these, you are very fortunate indeed. With some more luck, and if you do not make any missteps, you may be successful in eventually getting your green card, which will allow your spouse and any unmarried children under 21 to also be eligible for a green card, assuming they are all admissible to the U.S. (And, after 5 years of having your green card, you will be eligible to apply for naturalization as a citizen.)

If your employer has a legal department (or outside counsel) that will be doing the labor certification process, that’s wonderful. If not, you should not embark on this process without representation. Consult with an experienced Seattle immigration lawyer because the rules are very strict and complex; they have also changed since a totally new system for labor certification was introduced in 2005 known as PERM.

Now, when an employer “sponsors” an immigrant, this entails going through labor certification, which essentially requires the employer to advertise and interview U.S. workers for the very job that you have been offered and reject all of these other candidates on lawful grounds. Of course, there is a lot more to the labor certification process that I will discuss later, including getting a prevailing wage determination from the state, writing a very carefully crafted job description, following a strict timeline, submitting financial records, following different advertising requirements depending on the job, etc. This is why an experienced immigration lawyer should be handling the process.

The good thing for the employer is that while Department of Labor rules require employers to pay for the labor certification process, including attorneys’ fees (though many do not follow this rule), the employer is not a financial sponsor of you, can always withdraw its green card petition for you, and, of course, is always free to fire you. The thing that makes many employers nervous, besides simply the time and money involved, is that they will have to provide financial records to USCIS; however, this is only to make sure the business can afford to hire you.

As far as the offer of employment, it must be for a full-time and permanent or indefinite period. The job must be in the U.S. from an employer permanently located in the U.S. In addition, and this is crucial, you need to have a background that matches the qualifications for the job. This is the most important factor for the government; it is not whether you have more skills than other candidates, or whether the employer likes you more. And, of course, if labor certification is required, the result of the required recruitment process—ironically, undertaken after you have been offered the job—must be that there are no U.S. workers qualified for the job offered.

In my next post, I will finally discuss the five employment-based immigrant visa preferences—anyone wishing to obtain a green card based on their job must apply under one of the preference categories.

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card

In my last two Seattle immigration lawyer posts, I wrote about the asylum route to a green card. A more common path to obtaining a green card is through marriage to a U.S. citizen or a U.S. green card holder (officially called a lawful permanent resident, which is known in immigration lingo as an “LPR”). What follows is only a brief overview of the process but it should provide a taste of what to expect. (You should of course consult with an immigration lawyer regarding your specific situation.) You will see that it is much easier, and, more importantly, much faster, if the petitioning spouse is a U.S. citizen. This is because there is no waiting period for immediate relatives of U.S. citizens (which include spouses, parents, and unmarried children under 21).

Before I run through a few scenarios to describe the process, you should know that some immigrants are simply not eligible for adjustment of status (becoming a permanent residence). In a future article, I will discuss some of the grounds for inadmissibility and whether waivers exist for them. For now, readers should be aware that there are a plethora of these grounds, some obvious, such as if your last entry to the U.S. was illegal, and others less obvious, and you will want to figure out if one applies to you. If one does, you’ll definitely want to consult with an experienced immigration attorney about your particular case.

Regardless of your situation, the U.S. citizen or LPR spouse will need to prepare the visa petition. This includes: the Form I-130, Petition for Alien Relative; Form G-325A, Biographic Information (one form for each spouse); photos of the petitioner (U.S. citizen or LPR) and beneficiary (immigrant); proof that petitioner is U.S. citizen or LPR; proof of a valid marriage, including a marriage certificate, and if there’s a previous marriage for either spouse proof that it was terminated; and filing fee of $355.

Living In U.S. & Married to U.S. Citizen

Now, in the case of an immigrant already living in the U.S. and married to a U.S. citizen, the U.S. citizen, as in all of these cases, starts the ball rolling. In this situation, the U.S. citizen submits the visa petition (see I-130 and other documents above) simultaneously with the immigrant spouse’s permanent resident application (Form I-485). Note that I-485 is filed at a different location than the I-130, so read the instructions! (Reading the instructions for any immigration form is a must, along with making sure that you have the most up to date version.) The I-485 will include, among other documentation, a medical report and an affidavit of support (Form I-864).

Once USCIS receives the I-130 and I-485, the immigrant will receive a fingerprint appointment notice, and then an interview appointment notice. Since both the U.S. citizen and immigrant spouse are in the U.S. in this scenario, both must be at the interview. The key issue at the interview is proving that the marriage is not a sham. The intricacies of proving a bona fide marriage will be the subject of a future article. Hopefully, the application for permanent residence will be granted at the interview. (Note that a conditional residence will be granted if the marriage has been for less than 2 years by the time the interview occurs.)

Stay tuned for my next article that will cover how to get a green card for an immigrant living abroad who is married to a U.S. citizen.