The International Business Client and Immigrant Visas
| Jurisdiction | United States,Federal |
| Citation | Vol. 11 No. 12 Pg. 2955 |
| Pages | 2955 |
| Publication year | 1982 |
1982, December, Pg. 2955. The International Business Client And Immigrant Visas
This is the second article in a series of two which discuss the international business client and immigration practice. The first article, which appeared in the October issue of The Colorado Lawyer, dealt with nonimmigrant or temporary visas.(fn1) In particular, that article emphasized those visas of special interest to foreign businesses with owners or employees making short visits to the United States, foreign traders and investors, persons seeking entry into the U.S. for longer term employment in various capacities, and companies, either foreign or domestic, desiring to hire aliens or transfer foreign employees to the U.S. temporarily.
This article focuses on immigrant, or permanent resident, visas and addresses in particular those immigrant visa categories of most interest to alien employees and investors in the U.S.: (1) the third preference category, available under certain circumstances to professionals and persons of exceptional ability in the arts and sciences and (2) the sixth preference, available to persons coming to the U.S. to fill jobs for which there is a shortage of qualified workers in the U.S. The article also discusses application and appeal procedures that must be followed in obtaining a permanent resident visa and labor certification, a prerequisite to qualifying in either of the foregoing preference categories. Finally, the article discusses legislation now pending in Congress which, if passed, could significantly alter the law as it applies to qualifying for permanent residence.
The U.S. in general and the Front Range in particular represent increasingly attractive areas of business opportunity for many international businesses and foreign investors. The favorable investment climate, political stability, access to markets and availability of a trained work force in the U.S. bring large numbers of foreign investors and businesses and, with them, foreign employees to work in foreignowned or domestic businesses. In Colorado, energy resources, the presence of a growing community of high technology companies and real estate investments attract foreign businesses and individual investors. The desire for highly trained workers, many of them from foreign countries, continues to grow. At the same time, there are countervailing pressures to restrict the influx of aliens into the U.S.
It is increasingly important for Colorado lawyers representing foreign businesses, foreign investors and U.S. employers hiring foreign employees to understand U.S. immigration law, particularly those aspects of the law discussed in this and the previous article, to advise their clients adequately in this area.
The control of entry of aliens into the United States for permanent residence is accomplished in two general ways: first, the number of immigrants allowed in any fiscal year is restricted. This numerical restriction represents a fundamental distinction between immigrant and nonimmigrant visas, for which no numerical limitations are established. Second, there are qualitative restrictions which keep certain individuals out. There are numerous exceptions to the rules limiting entry but these are designed to accommodate special individual or family circumstances and do not significantly diminish the importance of the basic rules for most visa applicants.
The number of immigrant visas issued in any fiscal year (October 1-September 30) is limited to 270,000 for the entire year, not including "immediate relatives" of U.S. citizens, a category known as "special immigrants" and refugees granted asylum. Within this overall numerical limitation the number of immigrant visas issued to natives of any one country is further limited to 20,000 per fiscal year and from each dependent territory (colony) to 600 per year.(fn2) Earlier restrictions based on which hemisphere the applicant was from were abolished in 1978.(fn3)
Admission of intending immigrants is also restricted on qualitative grounds. Persons such as those with physical or mental defects (retarded, insane, psychopathic, addicted to drugs or diseased), criminals, prostitutes, polygamists, illiterates, stowaways, anarchists, communists, Nazi war criminals, spies and paupers will be denied entry.(fn4) These restrictions apply across the board, serving to exclude persons intending to reside permanently in the U.S. as well as those seeking only temporary entry.
In addition, and of particular interest and concern to many businesses and aliens coming to the U.S. to seek employment, is the fact that aliens claiming either third or sixth preference as intending immigrants are excluded unless they have obtained labor certification.(fn5) This is a significant barrier to immigration and is discussed in more detail below.
Another means of restricting entry of aliens into the U.S. on both qualitative and numerical grounds has been incorporated into the system of "preference" categories. These preferences are based upon (1) familial relationships with U.S. citizens and permanent residents and (2) individual merit.(fn6) Detailed discussion of the preference categories in this article is limited to the two based on individual merit, the third and sixth preferences, because these are of most relevance to most U.S. and foreign businesses hiring aliens to work in the U.S. An additional, nonpreference category is, in theory, available to applicants who do not satisfy any of the requirements of the above preferences.
All applicants within each preference category are considered in the order in which they apply, and to the extent the preference vacancies are not exhausted, nonpreference applicants are considered in the order in which they apply. It is important to note that no blocks of visas are reserved for nonpreference applicants. Also, the 270,000 annual limit has in recent years been fully utilized under the preference categories. Thus, under present circumstances an applicant who does not qualify for one of the six preferences and who is not an "immediate relative" of a U.S. citizen, a "special immigrant" or a refugee is not able to obtain an immigrant visa.
Because nonpreference visas are not now available and most aliens do not qualify as immediate relatives, special immigrants or refugees, aliens seeking permanent admission into the U.S. must qualify for one of the six preference categories. Although this article focuses on only two preference categories, the prudent counselor should always determine whether an alien is qualified for another preference based on family ties with a U.S. citizen or permanent resident. In some cases it is easier to obtain a visa based on a family preference because these preferences do not require labor certification. The six preference categories are as follows:
---First Preference: Unmarried sons and daughters over the age of 21 of U.S. citizens: 20 percent of all immigration visas are allocated to this preference.
---Second Preference: Spouses and unmarried sons and daughters of aliens lawfully admitted for permanent residence: 26 percent of all immigrant visas plus any unused visas from the first preference are allocated to this preference.
---Third Preference: Professionals and persons of exceptional ability in the arts and sciences: 10 percent of all immigrant visas are allocated to this preference, but there is no spillover from the first and second or other preferences
---Fourth Preference: Married children of U.S. citizens: 10 percent of all immigrant visas are allocated to this preference, plus unused visas from higher preferences.
---Fifth Preference: Brothers and sisters of adult U.S. citizens (U.S. citizens who are 21 years old or over): 24 percent of all immigrant visas are allocated to this preference, plus unused visas from higher preferences.
---Sixth Preference: Skilled and unskilled workers in short supply in the U.S.: 10 percent of all visas are reserved for this preference but there is no spill-over from higher preferences.(fn7)
As noted above, "immediate relatives" and "special immigrants" are exempt from any numerical limitations. Immediate relatives include spouses, parents and unmarried children under age 21 of U.S. citizens.(fn8) Special immigrants cover a very narrow range of persons and include immigrants previously lawfully admitted who are returning from a trip abroad, former U.S. citizens who are applying to reacquire citizenship, ministers of religion meeting certain requirements, and aliens employed abroad by the U.S. government for a period of fifteen years or more.(fn9)
For most alien investors and employees, particularly those without family ties to citizens or permanent residents of the U.S., the third and sixth preferences offer the only prospects for qualifying for an immigrant visa and thus for permanent residence in the U.S. For those who do not meet the requirements of these two preferences, but who still desire permanent resident status, the nonpreference category provides no real hope under present law and circumstance.
The third preference reserves up to 27,000 visas yearly to members of the professions and persons of "exceptional ability in the arts and sciences" who will "substantially benefit . . . the national economy, cultural interests, or welfare of the United States."(fn10) Third preference applicants must already have obtained offers of permanent employment in the U.S., have submitted third preference petitions or have had visa petitions submitted on their behalf by U.S. employers and have received Labor Department...
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