The terms “immigrant visa,” “permanent resident,” “resident alien” and “green card” status all imply the same thing. They represent the right of a foreign national to permanently live and work in the United States. This chapter explains how the U.S. Government uses quotas and a preference system to allocate immigrant visas. Some exceptions, such as the concept of “cross-chargeability” are also discussed. Each of the immigrant visa categories is then explained, including procedures for applying, and the documents required to do so.

If you do not qualify for one of the nonimmigrant categories described in the earlier chapters, you may only be able to apply under an immigrant category. The procedure for obtaining an immigrant visa is a lengthy one and can be extremely confusing and frustrating to applicants. One reason for the frustration stems from the inability to predict the actual time it will take to complete the application process.

Timing depends on a variety of factors, such as following the correct filing procedures for each type of application, the extent of processing backlogs in the government offices, which varies from state to state, and the availability of the quota. In some cases, the procedure can be completed in as little as a few months while in other circumstances, applicants from certain countries can wait for ten years or longer! Why is there such a variation in timing for immigrant visa processing?

The Quota

The United States Congress established a very complicated system for issuing immigrant visas. Each month the Department of State in Washington, DC prints a visa bulletin, which lists the availability of visas for every country for that particular month. Only a limited number of immigrant visas are generally issued each year. This limitation is called the “quota” and is based on an alien’s country of birth. A sample visa bulletin is supplied at the end of this chapter.

An individual born in India is eligible for one of the visas allocated to that country. If that same Indian citizen has become a citizen of another country, for example Canada, he or she is still subject to the Indian quota. This is because our quota system is based on the alien’s country of birth, not the country of citizenship. The country quota under which an applicant must apply for an immigrant visa is commonly referred to as the alien’s “chargeability”. There are four exceptions to chargeability by place of birth. These exceptions are known as “cross-chargeability”.

1. If the alien is married to another alien who is a citizen of a different country, the couple can apply under the more favorable quota. For example, if a woman born in the Philippines is married to a man born in Canada, the application for permanent residence can be made under either the Philippine or Canadian quota. In this case, the Canadian quota would be more favorable than that for the Philippines.

2. If the alien was accidentally born in a different country from the place of birth of his or her parents, and the parents were not firmly settled in the country where the child was born, the alien can be charged to the place of birth of either parent. For example, a Venezuelan couple on vacation in Mexico give birth to a baby. Subsequently, the family immigrates to the U.S. The baby will be charged to the Venezuelan rather than the Mexican quota.

If the parents never immigrated to the U. S., but this child later immigrated as an adult, he or she could still be charged to the Venezuelan quota, as long as proof existed that the child’s place of birth was, indeed, an accident.

3. Minor children can be charged to either parent’s place of birth. For example, a Canadian executive of an international company is sent to work in Taiwan for two years. His British born wife accompanies him. During the couple’s stay in Taiwan, the wife gives birth to a child. At the end of the two years, the family is transferred to the U.S. in L-1 status. They subsequently apply for permanent residence. The Taiwan born child can be charged either to the Canadian or British quota.

4. Former U.S. citizens can be charged to their country of last residence or country of citizenship.

Why are these cross-chargeability categories important? Because several countries have many more than their maximum allowable number of citizens applying for permanent residence in the U.S. each year.This results in long delays in obtaining green cards. When an applicant benefits from cross-chargeability, the processing time can be significantly shortened.

The Preference System

Immigrant visas are currently grouped into two general categories:

1) family sponsored preferences
2) Employment based preferences

This is known as the preference system.

Family Based Preferences
The preference categories assigned to relatives of U.S. citizens or permanent residents, and the number of visas issued annually in each category are as follows:

* Family first preference: Unmarried sons and daughters (over 21 years of age) of U.S. citizens: 23,400 plus any numbers not used in fourth preference.
* Family second preference: Spouses, children and unmarried sons and daughters of permanent residents: 114,200 plus the number by which the worldwide family preference allocation exceeds 226,000, and any numbers not used in first preference.

Family 2A-Spouses and children (unmarried, under 21) are granted 77% of the second preference numbers, and 75% of these are exempt from the “per country limitation”.

Family 2B-Adult unmarried sons and daughters of permanent residents are entitled to the remaining 23% of the second preference allocation.
* Family third preference: married sons and daughters of U.S. citizens: 23,400 plus any numbers not used in first and second preference allocation.
* Family third preference: married sons and daughters of U.S. citizens: 23,400 plus any numbers not used in first and second preference.
* Family fourth preference: brothers and sisters of adult U.S. citizens: 65,000 plus any numbers not used in first and second preference.
* Family fourth preference: brothers and sisters of adult U.S. citizens: 65,000 plus any numbers not used in family first, second or third preference.

In each category defined above, the U.S. citizen or permanent resident files a petition with the INS. It consists of:

1. Form I-130--Petition for Alien Relative
2. Documentary proof that the petitioner is a U.S. citizen or permanent resident
3. Documentary proof that the petitioner and the alien are related
4. Applicable filing fee.

Note: Second preference spouse cases also require separate photos of petitioner and beneficiary and biographic data forms.

when the INS receives the petition, it is date stamped. This date becomes the alien “priority date” on the waiting list for permanent residence.

As soon as the INS approves the petition, it forwards the approval notice to the petitioner and to the American Consulate where the alien will apply for the immigrant visa, if the beneficiary is not in the U.S. The Consulate then sends an information packet to the applicant, which he or she completes and returns. When the priority date is reached, the alien receives a notice to appear at the Consulate, with accompanying family members, for a final interview. He or she also receives detailed instructions about the documents that the applications will be required to present at the interview, including directions for completing medical examinations.

For complete details on the interview after the immigration visa application is approved, see Immigration Made Simple: An Easy to Read Guide to the U.S. Immigration Process by Barbara Brooks Kimmel & Alan M. Lubiner.

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