- Marriage to a US Citizen – Congress allots an unlimited amount of marriage based green cards per year for persons marrying U.S. Citizens;
- Family based other than marriage through a US Citizen – Congress allots up to 226,000 family based green cards and each country is capped at at a maximum of 7% of the total allotment.
- Employment based through a personal achievement (ie. extraordinary ability EB1, job offers for advanced degree and skilled workers EB2 and EB3, and Investors EB5) – Congress allots up to 140,000 employment based green cards and each country is capped at at a maximum of 7% of the total allotment.
- Address the Illegal Immigration Issue – We need to be careful not to set a precedent to encourage illegal activity but on the same note want to encourage use of our laws. Illegal immigration (ie. sneaking across the border) is likely encouraged by making it nearly impossible for some to immigrate to the US. For some that just want to start a new life in the US that aren’t married to a US Citizen for a marriage green card, do not have a college degree for an H1B visa, do not have money to invest to start a business via an E2 visa, but do offer skills that employer want, there are limited if no options available. A guest worker program would be a sensible option with a path to citizenship. For example, what if someone is here illegally from Mexico doing odd jobs or working illegally trying to support themselves and their family’s any which way they can. How about offering them a guest worker permit with the possibility to qualify for a green card through say marriage to a US Citizen or if they go to school and get a Bachelor’s degree through an EB3 green card. Provide clear incentives for people to legally advance their immigration status. But if the government makes it nearly impossible, as is the case for many, then it just encourages the illegal crossing of the Border. A guest worker program with a pathway to a green card and Citizenship would certainly encourage legal behavior, be great for the economy, and be extremely humane. Amnesty unfortunately encourages illegal behavior (ie. just cross the border, bypass good solid immigration laws – assuming we get reform, and the government will bail you out). But a guest worker program with the right to work, travel freely, opportunity to advance within the US Immigration System as a permanent resident (ie. green card holder) and eventually a Citizen encourages people sometimes facing desperate circumstances to approach the US Immigration system in a legal manner.
- Increase the green card numbers for family based green cards – Currently the backlogs for family immigration are ridiculously long and deter those that want to do things legally. For example, a US Citizen wanting to sponsor a sibling for a green card has a 16 year wait time. 16 years is just a deterrent.
- Increase the amount of green cards for Employment Based Immigration – Currently the backlog for someone from India in the EB3 Category is 10 years. An EB3 commonly occurs when an employer would like to sponsor a skilled worker for a permanent position – A 10 year wait time deters both employers and employees from even filing, the employee is often frustrated and may look at immigrating to a different country such as Canada or Australia. More so, the US employer has just lost an employee that they wanted to hire that could advance the interests of its company;
- Increase the amount of non-immigrant H1B visas – Currently there are only 65,000 available H1B cap each year for persons with an Advanced Degree and 20,000 US Master’s Degree Holders – Once these visas are up, and they always get used up even in the worst of worst economies (ie. 2009), they’re done. This means employers can no longer hire someone they believe will advanced the needs of their company and potential employees either need to leave the US, go back to school and incur expensive college costs with no income or get lucky and qualify for another type of visa (generally not the case).
- Investor Visas – Open up Investor Visas to the world. Currently E1 and E2 visas are for treaty traders and treaty investors who’s country has a treaty with the United States. Country’s such as China and India do not have the requisitie treaty, consequently, someone from China or India that would like to invest money in the United States (ie. $100,000) and create jobs do not qualify for an E2 visa. The US economy needs jobs and needs investment, we should open investment opportunities which will create jobs in the US to the world.
One of the perks of being a Chicago Immigration Lawyer or an Immigration Lawyer in general is meeting people of all walks of life. We work with clients on their immigration matters from not only Chicago, but around the U.S. and the world and we get to work on some of the most interesting issues. A challenging part is that the U.S. Immigration Laws are not sufficient to deal with the many inquiries we receive. One common question we regularly receive is on the topic of gay marriage. The question that generally arises is “I married my partner overseas or in California…etc, can we file a Marriage Green Card Application?” The simple answer unfortunately is no. The not so simple answer is, even though some states recognize same sex marriage, the U.S. government does not. Immigration Law is Federal, meaning state laws are not controlling but rather U.S. law is what is controlling for Immigration purposes.
Defence of Marriage Act (DOMA) – Traditional marriage In 1996, President Bill Clinton along with both the House of Representatives and the Senate signed into law the Defense of Marriage Act (DOMA). Under DOMA, a U.S. state is not required to recognize same sex marriages. Section 3 of DOMA by effect states that the U.S. Government does not recognize gay marriage. Section 3 of DOMA states: :`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.”
Same sex marriageIn May 2012, President Obama has been hinting towards supporting the U.S. Government recognizing gay marriage. Whether this is for his campaign or it’s something that will be seriously proposed as law remains to be seen. If same sex marriage is recognized by U.S. Law, it could have enormous immigration implications relating to fiancé visas and marriage green cards.
Fiancé Visa/ Marriage green card for heterosexual couples Under U.S. Immigration Law, U.S. Citizen may petition for his or her fiancé or spouse. Marriage green cards or marriage visas go through either the Immigrant Visa process or adjustment of status process. Fiancé visas are commonly referred to as K1 visas or K1 fiancé visas allow an overseas fiancé to enter the U.S. to marry their U.S. Citizen spouse. Once married within 90 days of entry on the fiancé visa, the married couple must apply for the adjustment of status process so that the foreign spouse can continue to live in the U.S. Under U.S. Immigration law, a U.S. citizen and spouse have an Immediate Relative relationship. The benefit of being an immediate relative in a permanent residence application is that an immigrant visa is always available for them. This may not seem like a big deal, but under the Immigration preference system it is. Specifically in family based immigration, there are Immediate relatives, and four types of preference relatives (Details of the preference system are beyond the scope of this article, but for example a fourth preference relative is the sibling of a U.S. citizen, depending on the country of origin of the Applicant/Beneficiary, their wait time for a green card could have anywhere from a 10 year to 20+ year.) Now, compare that to the spouse of a U.S. citizen who is an Immediate Relative and their wait time is much shorter as they only need to wait for the case to be processed for an available green card. Currently, a K1 fiancé Visa processing time ranges from 5 to 8 months on average. An Immigrant Visa or marriage green card currently has an average processing time of 6 to 10 months until interview. The Chicago Office for example processes marriage green cards or adjustment of status cases in approximately 90 to 120 days on average.
So if the U.S. government recognized same sex marriages, logically gay couples would be afforded the same K1 fiancé visa or marriage green card rights as opposite sex couples. At the moment this is not something being talked about. However, I suspect that if gay marriage gets closer to being recognized by the U.S. government, it will be.