The Legalization Process

The Legalization Process

There are several ways to become a legal resident of the United States. The exact procedure to obtain legalization will depend on your location, your GRACE FOLTZbackground and your residency status. In most cases, before you can obtain a green card (permanent residence) you must obtain a legal status. If you are residing–because of illegal crossing or an expired visa–in the United States as an illegal immigrant, you must obtain legalization through your family (if permanent residents or American citizens), your place of employment, the United States military, through marriage or from an educational endeavor.

This will enable you to maintain residence in the United States for a certain period of time. It is crucial to understand that all visas have expiration dates—green cards and citizenship are permanent, not visas. Before your expiration date, you must secure a green card through marriage, the military or a family member, employment or business.

To acquire legalization you must engage in or be categorized as one of the following: a family-based immigrant, a member of the United States Armed Forces, a worker or student with exceptional skills, an employment-based worker, or an asylum seeker/refugee. The visas associated with these categories are all temporary; however, they will enable you to live in the country legally and apply for permanent residency in the future.

Legalization from Family Members:

A number of people become legalized by way of their family members. The following individuals may be eligible to legally live in the United States:

  • Any immediate relatives of American citizens, including spouses, unmarried children under the age of 21, and parents of American citizen petitioners 21 years or older.
  • Family members of green card holders, including spouses and unmarried children of the sponsoring individual
  • A family member of an American citizen who fits into a preference category, including unmarried children over the age of 21, brothers and sisters of an American citizen petitioner over 21 and married children of any age.
  • Members of special categories, including battered children or spouses, individuals born to foreign diplomats in the United States, a widower of a United States’ citizen or a K non-immigrant.

Process of Legalization through Family:

To promote family unity, United States immigration law enables citizens to petition for qualified relatives to live permanently in America. As stated above, eligible relatives include, spouses, unmarried children under the age of 21 and parents of the U.S. citizen if over 21. These individuals possess special immigration priority; they do not have to wait in line for a visa to immigrate because the government offers a chance to immediate family members of citizens or green card holders to reunite the family.

Being an immediate relative of a U.S. citizen allows you to apply for residency through the filing of Form I-485 (Application to Adjust Status or Register Permanent Residence). While filling this form out your American citizen petitioner must file Form I-130 (Petition for Alien Relative). When filing Form I-130, your petitioner must provide proof of status to demonstrate permanent residency and must submit evidence to qualify your relationship. Permitted evidence includes: a birth certificate, divorce decree or marriage certificate.

When your relative or spouse is petitioning, the government will observe the following preference categories:

  •   First Preference:All unmarried, adult sons and daughters of American citizens (adult encompasses all individuals over the age of 21)
  •   Second Preference (2A):Spouses of green card holders and unmarried children under the age of 21 of permanent residents
  •   Second Preference (2B):Unmarried adult sons and daughters of green card holders
  •   Third Preference:Married sons and daughters of a United States citizen
  •   Fourth Preferences: Sisters and brothers of adult American citizens.

A visa will become available to the above preference categories depending on their priority   dates (the date the I-130 form was filed).

If you are living outside of the United States and are an immediate relative of a U.S. citizen, you can apply for permanent residency by engaging in consular processing. This procedure connects the USCIS with your Department of State to issue a permanent visa assuming the approval of Form I-130.

Legalization through Marriage:

A fiancé visa is one of the most common ways to obtain citizenship. If you are planning on marrying a U.S. citizen, your partner will file the petition to award you with permanent residence. When filing the petition, your partner must satisfy the following requirements:

  • The petitioner must be a citizen of the United States
  • The petitioner must show that they intend on marrying you within 90 days of your entry into the United states
  • You and your fiancé are both available to marry and previous marriageshave been legally terminated by death, annulment or divorce
  • You met each other in person at least once within 2 years of filing the petition.

Legalization through Employment:

Every year, thousands of people are legalized through an employment opportunity. The approval for a work visa will require certification from the United States Department of Labor. The United States Government, before issuing the visa, will investigate the need for the specific job. The Government must see a lack of U.S. workers who are able, qualified, willing or available to satisfy the job requirements in that particular area. The Government will ensure that no American workers are displaced through the issuance of the visa.

A visa will also be given for employment if you are considered a “highly skilled worker” or in possession of extraordinary abilities in a specific field. These workers are typically sought-after by the United States government. For instance, in 2002, a number of computer technicians and programmers were awarded a work visa.

Process for Acquiring a Green Card through Employment:

The majority of employment categories will require your employer to obtain a labor certification then subsequently file Form I-140, (The Immigrant Petition for Alien Worker) for you.

Green cards may also be offered to entrepreneurs/investors who are seeking to make a substantial investment in an entity or enterprise that creates new jobs.

Grace Foltz

 BSC JD