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So, you are either married or engaged to a US citizen or resident. Most of my clients assume that their best path to residency in the United States is going to be based on that relationship – and this assumption is almost always right. But since you may have other paths available to you, so let’s take a look at what those might be.
As a general matter, marriage/relationship-based residency strategies will almost always be superior to their alternatives. Perhaps the primary exception is if you have concerns about the long-term viability of your relationship. It is certainly possible for a relationship to be both genuine and also volatile. If that is your situation, make sure to take a look at the explanation of conditional residency in this resource, and the I-751 petition process for conditional residents.
Do you even want residency?
If you pursue one of the strategies discussed in this resource, based on marriage or engagement, the end result of that process is going to be status as a lawful permanent resident. That legal status is appropriate for somebody wants to live (reside) in the United States indefinitely. This may sound obvious, but if U.S. residency is not your goal, the strategies discussed in this resource may not be a good fit for you. Let’s look at some examples
- Karen is a German citizen married to a man from Minnesota. His work is going to take him back to the states for half a year, Karen knows that ESTA/Visa Waiver Program will allow her to be in the United States for the 90 days, so she is considering applying for a marriage base visa. If Karen’s goal is only to be in the United States for half a year, it may be more expedient to apply for a B-2 visa if she plans to return to Germany.
- Marlin is a US citizen living in Japan. He and his Japanese wife are retired and want to split time in the United States to spend time with Marlin children. Depending on the specifics of the situation, residency may not be appropriate. If they are spending the majority of their time in Japan each year, and have a home and substantial connections there, it may be more appropriate for her to pursue a visitor visa.
The bottom line is that if you are contemplating any scenario other than indefinite residence in the United States, you need to at least explore whether residency status is the appropriate legal objective for you.
Residency through employer petition.
Approximately 140,000 permanent employment-related visas are available each year, representing a small fraction of all visas issued by the U.S. In most scenario, the U.S. employer faces the substantial challenge of demonstrating that the position at issue cannot be filled by the domestic labor market. Referred to as Labor Certification (”PERM”), this step adds substantial complexity and expense to the process of securing the visa. The following are the principal three categories of permanent employment-based visas:
- EB-1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers (PERM not required).
- EB-2. Members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
- EB-3. Professionals, skilled workers, and other workers.
There is rarely a reason to pursue residency through employment over marriage if an individual also has the option of a marriage-based process. The marriage-based process will be faster, far less expensive. Employers are required to pay for the employment-based immigration process, but not if a client is obtaining a marriage-based visa. Still, because the marriage-based visa is so much less costly, my clients have been successful in asking their employers to cover the cost of the marriage-based process. The employer would much rather pay for the marriage-based visa then go through the rigors of the employment-based process.
Residency through investment.
The EB-5 program provides a route to permanent residency for foreign nationals able to invest substantially in U.S.-based enterprises. The required investment is $1 million, though $500,000 suffices in qualifying high-needs geographic areas. Among other regulatory requirements, the investment must create at least ten jobs. Both the principal EB-5 investor and accompanying family members are initially given a two-year conditional status. As with conditional status in marriage-based cases – as discussed in detail below – conditional EB-5 recipients must make a showing at the two-year mark of the residency, demonstrating that the investment met regulatory requirements. Failure to meet this showing results in loss of residency status for both the principal EB-5 recipient as well as any derivative family members.
Few of my clients have $500,000 or $1,000,000 sitting around waiting for an investment. But even if they did, the EB-5 path is no faster than a marriage-based process. You’re almost certainly going to be better off investing your resources elsewhere in securing immigration through marriage.
U-Visas, T-Visas, & asylum.
The United States has various paths available to residency based on humanitarian grounds. The primary examples include you visas (for crime victims), TV says (for victims of human trafficking), and asylum (for that escaping persecution). I have never had a client for whom many of these avenues was a superior alternative to a marriage base strategy. First, each of these strategies would take far longer than a typical marriage-based case. U-Visas, for example, take many many years. Second, each of these strategies involves substantial legal uncertainty. Even a strong asylum case, for example, has no guarantee of being approved. By contrast, a marriage base case is far more predictable.