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How To Stay In The United States

How To Stay In The United States

Different Types of Visas

You are in the United States already under some form of temporary visa or are undocumented. Now, you want to figure out how you can stay in the country on a more permanent basis. There are a number of options and it is important to find one that you are eligible for and that is right for your circumstances.

Family-Based Immigration Visas

One method is to be sponsored by a family member that is either a U.S. Citizen or a U.S. Lawful Permanent Resident (holds a Green Card). Whether or not a family member can sponsor you depends on their status and your relationship to them.

If the family member is a U.S. Citizen, they can sponsor a spouse, son or daughter, parent, or a sibling. There is no limit to how many immigrants can get legal status in the country if they are the spouse, child, or parent of a U.S. Citizen. Therefore, a preferable way of gaining sponsorship is if your family member is a citizen and your relationship to them falls under one of those categories.

If the family member is a Lawful Permanent Resident, they can only sponsor a spouse or an unmarried son or daughter.

Regardless of their relationship, the family member must petition you using a Form I-130, Petition for Alien Relative. If you are already legally living in the U.S. or are undocumented but have a previous petition under 245(i), known as the LIFE Act, you can file for adjustment of status. You must file a Form I-485, Application to Register Permanent Residence or Adjust Status. Form I-485 can be filed either at the same time as the I-130 or can be filed after I-130 is granted.

If you are not eligible to file for adjustment of status (likely because you entered the country without inspection and did not have a 245(i) filed previously filed on your behalf), then you must go through the Consular Processing method, which may require you to leave the country temporarily.

Employment-Based Immigration Visas

Another method is to try and get a visa through your business or employment. Approximately 140,000 employment-based visas are given each year and certain spouses and children may be able to join.

This method often requires cooperation of a potential employer since they will need to get a labor certification approval from the Department of Labor. They will then have to file a Form I-140, Immigrant Petition for Alien Worker on your behalf.

The government has categories of employees that it sets apart as preferable, with higher preference employees having the best chance of getting a visa. Those categories are as follows.

  1. Employment First Preference (EB1): Priority Worker and Persons of Extraordinary Ability

This category includes people with extraordinary ability, outstanding professors and researchers, and certain multinational managers or executives. Follow the link above for more details on how the government defines these categories and what kind of evidence it looks for.

  1. Employment Second Preference (EB2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability

This category includes people with advanced degrees and persons of exceptional ability. A person of exceptional ability can seek a national interest waiver and self-petition (file without an employer sponsoring them) if they can show that their abilities are in the nation’s interest. Follow the link above for more details on how the government defines these categories and what kind of evidence it looks for.

  1. Employment Third Preference (EB3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)

This category includes skilled workers, professionals, and unskilled (other) workers. Follow the link above for more details on how the government defines these categories and what kind of evidence it looks for.

Special Employment-Based Visas

There are two more categories of employment-based visas that work differently, namely because they do not require a labor certification approval from the Department of Labor, and require that different forms be filed altogether.

  1. Employment Fourth Preference (EB4): Certain Special Immigrants

Under this category of employment-based immigrant visas, your employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. The following special immigrants are eligible for the fourth preference visa:

  • Religious Workers
  • Special Immigrant Juveniles
  • Broadcasters
  • G-4 International Organization or NATO-6 Employees and Their Family Members
  • International Employees of the U.S. Government Abroad
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Certain Physicians
  • Afghan and Iraqi Translators
  • Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations
  1. Employment Fifth Preference (E5): Immigrant Investors

Under this program, investors (along with their spouses and unmarried children under 21) can apply for a green card if:

  • They make the necessary investment in a commercial enterprise in the United States; and
  • Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

The minimum necessary investment is currently set at $1.8 million, or $900,000 if you are investing in a targeted employment area (TEA), which are areas identified by the federal government as requiring investment and development.

If you believe you can qualify to apply as immigrant investor, you must first file a Form I-526, Immigrant Petition by Alien Entrepreneur. If and when that petition is approved, you must then file a Form I-485, Application to Register Permanent Residence or Adjust Status. If you intend to bring a spouse or unmarried children under 21, they can file their I-485 at the same time or file at any time while you are a lawful permanent resident.

Navigating the immigration system is complicated. Our Irvine immigration lawyers can help you find the pathway that’s right for you. To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

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