You asked about the options and process for an alien present in the United States under a temporary work visa to become a citizen or gain permanent resident status (a green card) by (1) marrying a U. S. citizen or (2) changing his immigrant classification. You were interested in finding a way to do so without having to leave this country.

The Office of Legislative Research cannot give legal opinions and this report should not be treated as such. In addition, immigration is such a specialized field that we urge your constituent consult with an attorney or other individual with expertise in such matters.

SUMMARY

In general, immigrants seeking citizenship must first have obtained a green card, lived in the United States for five years after receiving the card, and passed a test and background check.

But there are a number of ways that an individual with a temporary work visa allowing him to work in the United States can adjust his status to permanent resident, giving him full rights to work and live permanently here. Most green card applicants (66% for federal FY 2005) were already living in the United States when they applied.

The most common routes to permanent resident status are (1) marrying a U. S. citizen or lawful permanent resident (23 % of all granted applications), (2) being sponsored by a close family member (57%), and qualifying for an employment preference (22%).

Other routes, such as being a refugee or asylee or winning the annual diversity lottery afford many fewer opportunities to become a lawful permanent resident. A detailed description of the complicated process of changing temporary to permanent resident status, including the forms that must be filed, can be downloaded from the U. S. Bureau of Citizenship and Immigration Services (BCIS, formerly the Immigration and Naturalization Service) website: http: //www. uscis. gov/graphics/services/residency/index. htm

Unless indicated otherwise, all information in this report comes from the Department of Homeland Security's Office of Immigration Statistics. We have also omitted methods that require aliens start the application process outside the United States.

OBTAINING PERMANENT RESIDENT STATUS

The most commonly used routes for aliens lawfully in the United States to obtain green cards are described below. Each has its own eligibility criteria and BCIS forms that must accompany applications. Among other things, those applying for immigrant visas (a visa type that can be used to obtain a green card) are subject to thorough background checks, in-person interviews, fingerprinting, and medical clearances. Many immigrant visa types cap the number that can be issued in any given year.

In most cases, the Bureau will not begin processing the application until the applicant obtains a visa number, which indicates that a visa is available for him. Many have complained that the quotas and processing delays are responsible for extremely long waiting lists.

By Marriage

An alien in the United States under a temporary visa becomes conditionally eligible for a green card by marrying a U. S. citizen or lawful permanent resident. The couple must prove when they apply and on their second anniversary that the marriage was made in good faith and not undertaken for the purpose of evading the immigration laws. The alien may petition to have the conditions removed six months before his second anniversary and thus achieve permanent status.

The alien's unmarried children under age 21, other than those born of the marriage (who gain citizenship at birth), derive conditional permanent status through their non-citizen parent. Thus, if that parent does not obtain a green card by his second anniversary and does not adjust his status to a classification that allows him to remain in the United States, both the alien parent and his derivative children may have to leave the country.

The law exempts from the two-year marriage requirement an alien spouse who flees the marriage because he or his children have been battered by the citizen spouse. In this context, battery includes being the target or victim of extreme cruelty or any act or threatened act of violence. Forced detention or prostitution that results or threatens physical or mental injury is also a ground for this exemption.

As a Family-Sponsored Alien

One of the policies behind the immigration laws is reuniting non-citizen family members with those having permanent U. S. resident status. Applicants seeking permanent residency based on this classification may apply if lawfully present in the United States or living elsewhere.

The annual limit for family-sponsored preference slots ranges from 226,000 to 480,000 depending on how many employment visas are authorized but not used (see below).

The four preference categories, listed below from highest to lowest priority, are:

1. being a U. S. citizen's unmarried son, daughter, under age 21 (and their children), such as children and grandchildren born before the citizen was naturalized;

2. spouses, children, and unmarried sons and daughters of lawful permanent residents;

3. married sons and daughters of U. S. citizens and their spouses and children; and

4. brothers and sisters and their spouses and children of U. S. citizens age 21 and older.

Under An Employment-Based Preference

Five categories of workers (and their spouses and children) qualify for employment-based preferences. These are, by order of priority:

1. priority workers (e. g. , those with extraordinary ability in the sciences, arts, education, business, or sports);

2. professionals with advanced degrees or exceptional abilities;

3. skilled workers, professionals without advanced degrees and needed unskilled workers (e. g. people with extraordinary ability in the sciences, arts, education, business, or sports)

4. special immigrants (e. g. , ministers, religious workers and employees of the U. S. government abroad); and

5. employment- creating immigrants or “investors. ”

Immigration through investment. Eligibility criteria for investors include:

1. engaging in a new commercial enterprise or turning a troubled business around or

2. investing $ 1,000,000 in a new commercial enterprise or $ 500,000 in a rural area with a high unemployment rate.

The enterprise must benefit the United States and either (1) create 10 fulltime jobs or (2) if the capital investment is in a troubled business, keep the size of the workforce at least the same as before his investment.

An investor's permanent status is conditional for the first two years he operates in this country. At that point, immigration authorities must determine whether he has substantially met his investment commitments; if not, he will be asked to leave the country unless the eligibility criteria are modified or waived.

The annual employment preference limit, excluding spouses and unmarried children, is 140,000 plus any unused family preference slots from the previous year.

As a Diversity Immigrant

Diversity immigrants are nationals of independent countries and dependent areas with historically low immigration rates. Visa limits are 7% of the total number of family-sponsored and employment-preference visas issued during that fiscal year. No more than 2% can come from the same country or dependent area.

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