Investment-Based Immigrant Visas

Employment-Based Preference 5: Employment-Creation Immigrants()
Individuals who invest a minimum of a million dollars in a new enterprise in the U.S. which will result in the creation of employment for at least 10 qualified workers (i.e., U.S. citizens, permanent residents, and certain other individuals who are authorized to work, other than immediate family members of the investor) may qualify under the Preference 5 category. In certain exceptional circumstances, including where the investment is made in an area of high unemployment or a rural area, the amount may be reduced to $500,000 and under other circumstances increased to as much as $3 million. There are 10,000 visas available per year in this category.

Diversity-Based (Lottery) Immigrant Visas()
The diversity program refers to certain "lottery" programs where citizens of a number of designated countries may file a letter-type application with a designated office at the State Department for a possible random or chronological selection for immigrant visas without any reference to the applicant's relationship to U.S. citizens, permanent residents, or U.S. employers. Under present regulations, a lottery applicant must have at least a high school education or two years experience in a position which requires such experience.

The effect of the quota limitations noted above often results in extended waiting periods to complete the permanent residency process. Such status may be sought either through an immigrant visa application before a U.S. Consular Officer abroad or, in certain circumstances (see below), in adjustment of status proceedings with the United States. Individuals must also prove themselves not to be ineligible for immigrant status under any of the general categories of inadmissible aliens specified in the law (8 U.S.C. 1182(a)), including criminality, mental defect, Communist part affiliation, drug trafficking, terrorism, etc.

Change from Nonimmigrant to Immigrant Classification
An individual who has entered the U.S. with a nonimmigrant visa may, under certain conditions and usually after the filing and approval of a petition classifying him/her in a preference category, apply to change status to that of a lawful permanent resident through a process called "adjustment of status." In cases where the individual otherwise qualified for immigrant status, but has engaged in unauthorized employment while here temporarily, or has violated the terms of a nonimmigrant visa, immigrant status may nevertheless be obtained through the issuance of an immigrant visa at an American Consulate Post abroad.

The Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRAIRA") and New Exclusion Grounds
With respect to possible bases of ineligibility for admission, it is important to note that recent legislation (IIRAIRA of 1996) has further expanded the grounds for exclusion. One important new category of excludable aliens includes those who, after April 1, 1997, overstay for 180 days or longer. Individuals who have overstayed for more than 180 days but less than one year are inadmissible for three years from the date of their departure; those who overstay for one year or more are inadmissible for 10 years.

Also now excludable for a period of five years are students who have violated the new restrictions on student status (see description of F-1 status, above). Health care workers (other than physicians) who are entering the U.S. to render health care services are excludable unless they receive certification (such as CGFNS) for their field and speak sufficient English for their type of work.

Immigrant visa applicants will also now have to comply with stringent new requirements regarding the affidavit of support which is necessary to meet the public charge provisions of the law, and they will have to present certificates that they have received vaccinations for a variety of designated diseases.

An important change, which will affect nonimmigrant and immigrant visa applications alike, renders permanently excludable from the U.S. certain former U.S. citizens who have renounced their citizenship for tax avoidance reasons.