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Grabbing the Brass Ring

ITIPress.org - Donna Scarlatelli is a partner at Bander & Scarlatelli, P.A., Immigration Law Firm with over 24 years of practice

Many clients come to us and have been lead to believe that green cards are hard to get - unless you cheat and marry a U.S. citizen just to get the green card. Unless you are a professional. Unless you have a unique skill. Unless you have lots of money. None of these restrictions are true. Everyone and anyone can get a green card. There are basically only 3 “unless” circumstances: (1) unless you have a serious criminal history, (2) unless you lie to the Government, and (3) unless you don’t act quickly enough, wait too long and stay here longer than the Government allowed. And for some of these three, there are solutions.

There are 4 ways to get a green card:

Through the sponsorship of a close relative who is a U.S. citizen or holds a green card. I mean close - like a spouse, maybe a parent, maybe an adult child - nothing more distant than a brother or sister.

Through the offer of a job with a U.S. employer. Or with the same idea but the actual offer of employment is not necessary because you are so extraordinary and talented that the Government will overlook the actual offer of a job because we want you here.

Through asylum- once the Government has granted you refuge in the United States.

Through the annual diversity green card lottery.

There is a fifth way. But first you have to be in deportation and win your case before the judge. Not something to be recommended but avoided.

Let’s go through some of the details of these 4 ways to get a green card:

Every country in the world gets the same number of green cards assigned, approximately 20,000. It’s a bit more complicated than that - but essentially this is the idea. These 20,000 are broken down into categories, classifications or priorities. Some categories have more applicants than there are green cards available. Similarity, some countries have more applicants than there are green cards available. So some people, depending on what category they fall into or what country they are from, have to wait until their place in the line comes up.

For example, for sponsors who only have green cards themselves and are not citizens of the United States, the wait for their relatives who are applying for their own green cards can be long- as much as an average of 5 or even 7 years. Even for the spouse. And these green card holders can not sponsor their parents, their brothers or sisters or their married children.

U.S. citizens can sponsor parents, children (married or unmarried) and siblings as well as spouses. For spouses, parents and unmarried children under 21 the line is relatively short. Green cards can be given as quickly as the Government can do its processing - usually inside of 18 months with employment authorization granted inside of 90 days.

But even U.S. citizens who sponsor their adult children, married or single, will have to wait for several years to have their relatives join them as green card holders. And their brothers and sisters may have to wait as much as 18 years!

The Government spends lots of money in its budget to investigate marriages it suspects are fake. When a couple goes for their interview at the local offices of the USCIS (formerly the INS) they must be prepared to be questioned as to the legitimacy of their marital relationship. The USCIS will want to see documents that show the couple has begun a life together. They look for joint bank accounts, proof of insurance together, leases or property held in both names, joint credit cards - things like that. Of course, a baby born to the couple is often the best proof that the couple married for what the Government calls “love an affection.” So, take heed of this warning: fake marriages are a “no-no.”

Now not everyone can find a U.S. citizen to fall in love with. For some people, it is out of the question - they are already married! But just about everyone can find a job and an employer who is willing to help them grasp that brass ring- the green card.

The employer has to be a U.S. employer. In other words, a U.S. citizen or a green card holder if it’s a private employer - like a home for a domestic worker. Or a U.S. company, meaning a company that is organized and registered in the U.S. That company can be owned by foreigners - even by foreigners who are illegal. It’s still a U.S. company.

But it can not be your own company. That is because for this process there must be an “employer-employee” relationship. If it’s your company, you can’t fire yourself! And the U.S. employer must be able to pay you the salary or wages that the Government is going to tell you are normally required for that kind of a job.

This process is called a “labor certification.” That means that the U.S. employer is going to run some ads in the newspaper as a test of the U.S. job market to see if it can find qualified, available and willing American workers. Once the employer has done this and files its application with the State Department of Labor, if the employer has does it correctly, then the Labor Department will “certify” that the job market has been tested and no American workers were to be found. The Government will issue a certification which functions like a clearance for the employer to now move to the next step - the sponsorship petition to the USCIS.

Labor certification is not easy and it must be done well. I always explain to my clients that this is like constructing a building - if this foundation is not laid properly the building will collapse. It is the most important part of the green card process and the most complicated - but it can and is done every day for hundreds of thousands of families.

We’ll discuss all of the details of the labor certification process in another article. For now, just remember that this is an equal opportunity for all. The job market is being tested for American workers. If the employer finds another illegal worker, another foreign worker, that does not count. So, for many unskilled or less-skilled kinds of jobs, it is sometimes easier to get a labor certification. These jobs are not attractive to U.S. workers and none apply.

Getting a green card through asylum is easy once you have won asylum. But the hard part is winning asylum in the first place! One year after you win asylum, either by the USCIS or the Judge, you can apply for the green card. But there is a long line because the category has a small share of the 20,000 green cards each year. So, the line can be as long as 7 years!

And the diversity green card lottery is just that- a lottery. It’s a game of chance. You play the game and if you are lucky, maybe you’ll grab that brass ring and win yourself a green card!

Now, those are the basic ways you can qualify for a green card. But no matter how you qualify, you always end up at the same last step: making your personal application for that green card. There are 2 ways that can happen:

If you are in the United States and are legally here - have never broken the immigration laws like maybe overstaying your time the Government gave you to stay, working without permission or maybe not working for the employer whom you were supposed to work for - then the Government grants you a privilege. That privilege is to finish the green card process in the U.S. Under the current law, the only people who get this privilege who have violated the U.S. immigration laws are those who marry U.S. citizens after they originally came here legally or the minor unmarried children or parents of U.S. citizens who also originally came here legally. For everybody else, let’s take a look at #2:

If you are not in the United States or if you are not here legally, then you can still qualify to claim your green card. But you can not complete the process in the U.S. You will have to have an interview at the American Consulate in your home country and enter the U.S. to be granted the green card. That means that if you are here, but not legally, then you will have to leave, go to the Consulate and re-enter the U.S. to get the green card. Now, pay attention! If you have overstayed the period of time the Government gave you to stay in the country, and then you leave, you can not come back to the United States for 3 or even 10 years! So, if the only way you can make that personal application to claim your green card once you qualify through one of the ways we talked about above, is to leave, well then you have a problem because you can’t come back! This is why it is so important to start the green card process early in your visit to the United States. You want to be sure that you are going to be able to grab that brass ring and claim that prize. After all, this prize requires time, effort, planning and money. You don’t want to waste these resources only to find out you’ve come close but can’t quite close your fingers around the prize.

Before April 30, 2001 there was a special section in the law that allowed people who were illegally in the United States to finish the process here by paying a $1000 fine instead of having to leave to claim the green card. As long as you got your first sponsorship papers filed with the Government by that date, you could be included in this special law. That may apply to some of you reading this. If so, you are the smart ones and the lucky ones. You have an excellent chance to claim your ultimate big prize- the green card.

"For every difficulty that supposedly stops a person from succeeding there are thousands, who have had it a lot worse and have succeeded anyway. So can you." – Brian Tracy



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