Frequently Asked Questions
1. What are visa caps for green cards and how are they reached?
Most immigrant visa (green card) categories are subject to “caps” or “quotas.” This means that only a certain number of visas will be available per year for each of the various categories. An immigrant is not able to obtain a green card until such a visa is available. If more petitions are filed in a given year than the number of visas allotted (which is usually the case), you must wait until more visas become available before you can immigrate to the United States. When you file an immigrant visa petition, the date you file becomes your “priority date” which essentially holds your place in line for a visa. Visa applications are adjudicated in order of priority date, and so even though your place in line has been held, you may still have to wait several years before a visa becomes available to you.
There are also “per-country limits” on immigrant visas, which limit the amount of visas that are available to any one country per year. For nationals of countries with traditionally high rates of immigration, such as China, India, Mexico and Philippines, the wait time for visas can be even longer.
Fortunately, “immediate relatives” (i.e. spouses, parents, and minor children of U.S. Citizens) are not subject to visa caps, and so visas are always immediately available for immigrants in this category. Additionally, the caps for some categories, such as the EB-1 or EB-5 employment-based categories, are not utilized quite as often as others, and so visas in these categories are usually immediately available.
The visa availability for each of the family and employment categories can be found on the Department of State Visa Bulletin. The “C” in a category indicates that the category is “current”- i.e. visas are immediately available- whereas a date represents the latest priority date for which visas are available. Applicants with a “priority date” on or before the listed date on the visa bulletin may proceed to the final stages of the green card process. “U” means that visas are unavailable.
2. What are nonimmigrant and immigrant visas?
The terms “immigrant” and “nonimmigrant” both refer to foreign nationals desiring to come to the United States. Nonimmigrants are those foreign nationals coming to the U.S. for a temporary purpose. Immigrants are those who have the intent to live and remain in the U.S. permanently.
Most nonimmigrants are not permitted to enter the U.S. with the intent to remain permanently or adjust status. This is called “dual intent” and can lead to problems in the green card application process. For example, a foreign national may not enter the U.S. on a tourist visa, which is a nonimmigrant visa, with the intent to remain in the U.S. permanently.
There are many different kinds of nonimmigrant visas available for temporary stays in the U.S. Some of these categories allow for work authorization, while others do not. For more information on the nonimmigrant visa categories, please see the articles below:
- B-1/B-2 Visa: Tourism and Business Activities
- E-1 & E-2 Visas: Treaty Traders and Investors
- E-3 Visa: Australian Special Occupation
- F-1 Visa: Academic Student
- H-1B Visa: Specialty Occupation
- J-1 Visa: Exchange Visitor and Foreign Residency Waiver
- L-1 Visa: Intracompany Transferees
- M-1 Visa: Vocational Student
- O-1 Visa: Extraordinary Ability and Achievement
- P-1 Visa: Athletes and Entertainment Groups
- Q-1 Visa: International Cultural Exchange
- R-1 Visa: Religious Workers
- TN Visa: NAFTA Professionals
- Visa Waiver Program
For more information on immigrant visas, please see the articles entitled, Family Based Immigration and Employment Based Immigration. Our attorneys can help you find and apply for the visa that is right for you based upon your qualifications and purpose.
3. What are preference categories?
Preference categories are the different categories for which immigrant visas are available. Immigrant visas are first divided into two categories: employment-based and family-based. Each of these categories is then subdivided further into preference categories based on the relationship of the foreign national to the person petitioning him/her.
As for the family-based categories, first preference essentially applies to the closest familial relationship that is given an annual visa cap (see #1 above). The second preference category applies to a relationship that is slightly more distant than the first, and so on through to the fourth preference. “First preference,” however, does not necessarily mean that a visa is more likely to be available for that category than for one of the lower preferences, as visa availability hinges on how many visa petitions have already been filed under that category. Essentially, the more popular a preference category is, the longer you will have to wait for a visa.
The following are the family-based preference categories:
- First Preference (F1): Unmarried Sons and Daughters of U.S. Citizens
- Second Preference (F2): Divided into “A” and “B” below
- F2A: Spouses and Children of Permanent Residents
- F2B: Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
- Third Preference (F3): Married Sons and Daughters of U.S. Citizens
- Fourth (F4): Brothers and Sisters of Adult U.S. Citizens
To understand the current wait times associated with each category please see the Visa Bulletin.
The following lists the employment-based preference categories. More information on these categories can be found in the articles below:
- First Preference (EB-1): Extraordinary Ability, Outstanding Professors and Researchers, and Executives and Managers of Multinational Companies
- Second Preference (EB-2): Professionals Holding Advanced Degrees or Exceptional Ability (See also National Interest Waivers and Schedule A Shortage Occupations: Groups I and II)
- Third Preference (EB-3): Skilled Workers, Professionals, and Other Workers (See also Schedule A Shortage Occupations: Group I)
- Fourth Preference (EB-4): Special Immigrants and Religious Workers
- Fifth Preference (EB-5): Investors
4. What are the different government agencies involved in the immigration process?
Please see the article entitled, Government Agencies.
5. Can I bring my dependants to the United States with me?
Most of the immigrant and nonimmigrant visa categories allow for derivatives or dependants to join principal foreign nationals in the U.S. A dependant is specifically defined in the Immigration and Nationality Act as a spouse or unmarried child under the age of 21. When a child turns 21 or marries, he/she is said to have “aged out,” and is therefore no longer eligible to immigrate or enter the U.S. as a dependant of the principal visa holder. There are certain exceptions to this, such as in cases implicating the Child Status Protection Act (CSPA). Additionally, requirements for bringing dependants to the U.S. may vary slightly depending on the type of visa for which you and your family are applying.
For additional information, please see our article on Dependants.
6. What is the Child Status Protection Act (CSPA)?
The CSPA was passed by Congress in order to provide some protection to families who are subject to the long wait times involved in the family or employment based immigration process. Oftentimes, a child who was under 21 when a visa petition was filed ages out, as discussed in question 5 above, by reaching the age of 21 before a visa becomes available. When this happens, the child is no longer eligible as a derivative of his/her parent’s application because he/she is no longer a “child.”
CSPA provides a mathematical calculation to deduct the time it took the Department of Homeland Security to adjudicate the petition from the child’s ultimate age once a visa becomes available. Unfortunately, this is not always helpful, as the only time deducted is the administrative processing time, and there is no deduction for the time it took the visa itself to become available. Thus, for some of the immigrant visa categories that experience backlogs of several years, deducting a few months for the adjudication process is not that helpful. In many cases, however, the CSPA does allow just enough time to be deducted from a child’s age such that he/she may proceed with a derivative application even after reaching the age of 21. Analysis of the CSPA and whether it may apply to a specific case can be complicated. Our attorneys can assist you to determine whether your child may qualify.
7. What is employment authorization and how do I get it?
Employment authorization, also known as a “work permit,” is what is required to allow you to work legally in the United States as a foreign national. If you are a lawful permanent resident, you are authorized to work with your lawful permanent resident card (i.e. green card). In some cases, the immigration agency will provide work permits to those that have a pending application in the system. For example, if you are pursuing an immigrant visa under either the family-based or employment-based immigrant visa categories, and you have an adjustment of status application pending, you will be provided with an Employment Authorization Document (EAD) within a short time after filing your application.
Work authorization is also incident to some of the nonimmigrant visas, as many of these visas are issued to foreign nationals to allow them to come and work temporarily in the U.S. Additionally, in many situations, foreign nationals who are in the U. S. lawfully are eligible for work authorization while certain other applications are pending. These foreign nationals and those who are work authorized pursuant to their nonimmigrant visas will be issued an EAD. This document can be shown to employers as evidence of work authorization. It can also be used to obtain a social security number or driver license.
Please see our article on obtaining employment authorization for more information.
8. How do I get a social security number?
In order to obtain a social security number, you must have lawful immigration status in the U.S. as well as work authorization. To be issued a social security card, you must go to your local Social Security Administration (SSA) office and apply. You will be required to present documents evidencing your lawful status and work authorization at that time. For more information on applying for a social security number, visit the SSA website section on Social Security Numbers for Noncitizens.
9. How do I get a driver license?
The process for obtaining a driver license varies from state to state, and so you should ultimately check with your state’s Department of Motor Vehicles (DMV) for information on obtaining a license.
In Florida, for example, you must present specific documents evidencing your lawful immigration status, residence, and identification. Typically, this means you must provide evidence of your social security number or a letter from the SSA indicating that you were never issued a social security number, in addition to other identification and immigration documents. The DMV will then verify the authenticity of your immigration documents with the Department of Homeland Security before issuing a driver license. For specific information on the documents required to obtain a license in Florida, please see the Florida Department of Motor Vehicles website.
10. I am in the U.S. unlawfully and I am not currently eligible for lawful permanent residence under any of the immigrant visa categories. Is there anything I can do to obtain lawful status?
Unfortunately, if you are not eligible for adjustment of status based on a family visa petition and if you do not have an employer willing to file a petition for you, you are probably not eligible to obtain lawful permanent residence. However, there are some exceptions and relief available to undocumented immigrants that may or may not apply to you. For example, certain undocumented immigrants in removal proceedings are eligible for what is called “prosecutorial discretion” (PD). PD is not lawful status, but in this instance the government is essentially saying it is not going to initiate removal proceedings against you for the time being. Undocumented immigrants must have certain positive equities in the United States (e.g. family, lack of criminal record, etc.) to be eligible for prosecutorial discretion.
Additionally, although you may not be eligible to apply for adjustment of status because you are in the U.S. unlawfully, if you end up in removal proceedings you may have relief available to you in immigration court. Please see the articles on Removal/Deportation and Relief in Immigration Court for more information.
If you have had a visa petition or labor certification filed for you in the past, you may also be eligible for Lawful Permanent Residence under section 245(i) of the Immigration and Nationality Act. Please see the 245(i) article for more information on eligibility.
Finally, immigrant advocates remain hopeful that the near future will bring comprehensive immigration reform. If this happens, immigration reform could open up new doors for immigration as well as new forms of relief for undocumented immigrants.