An Overview of the US Immigration System – 2015 Part 2 Immigrant Visas

For Vietnamese immigrants, there are two basic categories that offer a Green Card: Family sponsored immigrants and Employment based immigrants.

 For Family Based immigrants, there are no quotas for a US citizen’s spouse, parent or child under 21 years old.  The sponsor must file a visa petition with US CIS.  The petition then goes to the National Visa Center and finally to the US Consulate in Saigon.  Processing time from start to finish is about one year.

 There are other categories that are called Preference Petitions.  They do have a quota and have a longer waiting time, such as

• a US citizen’s single children over 20 (8 years wait),
• married children (11 years wait),
• and siblings of US citizens (13 years or more wait).  

 The spouse and minor children of Permanent Residents are also subject to a quota and waiting time (2 years).  Children of a permanent resident who are over 20 have a wait of 7 years or more. 

Step 1 is to file a petition with USCIS to get a priority (filing) date.   Marriage and Fiancée cases are inspected very closely to make sure the relationship is genuine.   Petitions based on green card holder automatically switch to higher preference category when the green card holder becomes a citizen. 

Several months before a case is eligible for a visa interview, the National Visa Center (NVC) will ask for an Affidavit of Support and photo copies of personal documents, as well as a police clearance.   It is up to the NVC to schedule visa interviews.   If the family in Vietnam has children over 20 years of age, some of them may be eligible for a visa based on the CSPA.  However, NVC does not determine their eligibility.  That is left to the Consulate in Saigon and the family must make a special request to have the child processed for CSPA.

Employment-Based Petitions leading to Green Cards

EB-1-1 – Persons of Extraordinary ability in the sciences, arts, education, business or athletics

EB-1-2 – Outstanding Professors and Researchers

EB-1-3 – Multinational Executives and Managers

EB-2 – Members of the Professions Holding Advance Degrees or People With Exceptional Ability

EB-3 – Skilled Workers, Professionals and Other Workers.  This category is available to university graduates and people working in jobs requiring a worker with at least two years experience if the employer gets a labor certification to show that there are no available local workers. 

EB-4 – Special Immigrants – Religious Workers.  Basically the same requirements as the R-1 religious worker non-immigrant category except that the applicant must have been in the US working in the field for at least a two year period.

EB-5 – Investor Employment Creation Visa.  Requires an investment of $500,000 to One Million.    There is Direct Investment, requiring job creation and requiring the day-to-day management by the foreign investor.   There is also the possibility of investing $500,000 in a regional center.   Applicants applying through regional centers do not need to show they are involved in management and can live anywhere in the US.  However, they have no direct control over the money that they invest, and there is no guaranteed return on investment.  All EB-5 investors must present an acceptable paper trail to show investment money was legally obtained.

SPECIAL GROUPS.   President Obama created a new discretionary program in 2012 aimed at young undocumented immigrants who arrived as children. The Deferred Action for Childhood Arrivals (DACA) program is available to those who were in the US on June 15, 2012, were under the age of 16 on that date, have been in the US for at least five years, who are under 31 on June 15, 2012, who are in school or have a high school or college degree, GED, or an honorable discharge from the Armed Forces and have no criminal history. The program is extended in two-year increments and was recently extended until 2016.

      In November 2014, President Obama announced a major expansion of the DACA program to remove the cutoff age and allow those who entered before 2010 (rather than 2007) the opportunity to apply. He also announced a new program called DAPA that would allow parents of US citizens and permanent residents to apply for a similar benefit. Those programs were supposed to take effect in the spring of 2015 but are currently on hold due to court actions.

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Q.1.  Can widows of US Citizens apply for an immigrant visa or Green Card?

 A.1.  Yes, the law applies to widows living abroad, who are seeking immigrant visas, and to widows in the United States, who want to become permanent residents based on their marriage.   The only “Two Year” requirement in the law is that the widow must file the Green Card application within 2 years of the death of the citizen spouse.   If the husband did not file an I-130, the widow can self-petition with the I-360 within 2 years of the husband’s death. The widow can be accompanied by her minor children and there is no need for an Affidavit of Support.

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Q.2.  If a permanent resident applies for US citizenship, does he need to give up his Vietnamese citizenship?

 A.2.  Dual citizenship is allowed by both the US and Vietnam.  However, having a US passport does not provide any special treatment or protection when a Viet Kieu is in Vietnam.  Vietnamese law applies to dual citizens.  US law requires payment of taxes on worldwide income, so an American citizen’s earnings in Vietnam could be subject to US tax requirements. 

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Q.3.  Does a Re-entry Permit allow the permanent resident to remain outside the US for up to 2 years?

 A.3.  Yes, the permanent resident would be able to return to the US at the end of the 2 years, but being outside the US for 6 months to a year will break the residency status, and being outside the US for more than a year could mean that the required 5 or 3 year   residency period starts over.

ROBERT  MULLINS  INTERNATIONAL  www.rmiodp.com   www.facebook.com/rmiodp

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