Immigration 101: Immigrant Petitions

Not long ago, someone told me about an illegal immigrant's situation. He was someone who had been brought into the country by his parents at a young age. I was asked what would happen if he applied for citizenship.

This type of question, which is very common, is not the question our immigration laws ask at all. Most people assume the question is, "How does someone who wants to immigrate into America do it while following the law?" Instead, our law asks, "How does someone in America bring an immigrant into the country?" As a policy matter, this only makes sense. Why should our laws be designed to help outsiders, when we could just as easily enact laws that serve our own?

The two primary ways our law allows this are (1) family petitions and (2) employment petitions.

Family Petitions

The first step to bring a relative into the U.S. is when an American citizen or legal permanent resident (LPR--a green card holder) files a petition for a family member with USCIS. Usually, this is done by filing Form I-130.

As a U.S. citizen or LPR there are certain types of relationships you can file for, such as a spouse, child, or parent. Only citizens can file for a brother or sister. One interesting fact is you have to be 21 years old to file for a sibling or a parent, so the problem of so-called "anchor babies" is vastly overstated. If jumping the border and having a baby is your immigration plan, I hope you're very patient. (However, having a U.S. citizen child may play a role in deportation decisions.)

To get an I-130 approved, all you need to do is file it, with the appropriate fee, and prove the relationship. Usually this is done with documentation, such as birth certificates or marriage certificates. To prevent marriage fraud, spousal petitions usually also require an in-person interview.

If the petition is approved, all you have done is prove the relationship and allow the alien to apply to become an LPR. That's it--it confers no immediate benefit. And the wait times are very long due to the immigrant quota system. A quick look at the current visa bulletin shows that siblings of U.S. citizens from most countries have about a 10 year wait, while those Filipinos whose relatives filed in 1987 are now eligible. Certain "immediate relatives" of U.S. citizens (spouse, unmarried child under 21, or parent) get in regardless of the quotas.

Employment Petitions

The other most important way to bring an alien into the U.S. is through an employment petition, usually Form I-140. This is NOT the same thing as an H-1B visa, which is for a temporary worker instead of a permanent one, although the two are often confused by people debating the subject.

For most employment petitions, you first have to file ETA Form 9089 with the U.S. Department of Labor. With this form, ostensibly an employer has to prove (1) it has tried to hire someone who is already legally in the U.S., (2) it is offering a wage which is normal for the job in the location where the job is, and (3) it couldn't find anyone in the U.S. who was willing and qualified to take the job. This is, at least, how it's supposed to work. If DOL believes the employer has proven all of those things, it will issue a "labor certification." The employer will then file the labor certification, along with Form I-140, with USCIS. USCIS then must determine whether the alien is indeed qualified for the job and that the employer is able to pay the wage they have offered. These requirements make sense: Why would we let them bring in an unqualified person, when they are saying that the reason they need them is no one here is qualified? And, if they can't pay the wage, then they are bringing down wages of U.S. workers.

Some categories don't require a labor certification. If you are really, really famous for your artistic or athletic endeavors (think Paul McCartney or Roger Federer, although the bar may not be that high) then you can petition for yourself, assuming you intend to continue those artistic or athletic endeavors in the U.S. Also, accomplished scientists can be brought in to do research, and multinational corporations can move some of their important executives into the U.S.

As with the family petitions, approval of the petition only gives you the right to ask to come into the country, and there are quotas on all of the employment categories (the visas for the "really great" people are usually immediately available).

Be sure to check back next time, where I'll go over what people actually do when they get an approved petition, and how they turn it into a green card.