Lesser Known Paths to Permanent Residency

by Matthew Bray

“How do I get a Green Card” is one of the most common questions attorneys at our law firm receive. And while it may be a surprise to many that a Green Card (that is, permanent residency in the US) is not right for everyone nevertheless people are always keen on obtaining one, especially if they have spent a few years in the US. There are generally two paths to permanent residency—via employment or family. But those aren’t exactly the only ways, and we thought it would be interesting to explore several of the lesser-known paths to that coveted Green Card.

1. Children Born in the US to Foreign Diplomats and Others Holding Diplomatic Status

It is counter-intuitive to the basic principle of US nationality—jus soli, that your citizenship is based on where you were born—but this class of persons is not “subject to the jurisdiction” of the US by virtue of their parents’ diplomatic status, and so they do not become citizens automatically at birth. Their parents, however, may register their US born child’s permanent residence at birth, or the child may do so by showing continuous residence since birth and not having abandoned that residence. As part of the process the applicant must provide official proof that their parent held the occupational title granting diplomatic status at the time of their birth, and they must also renounce any privileges and immunities they held based on their parents’ diplomatic status.

2. Cancellation of Removal for Non-permanent Residents

Known as the “Ten year Green Card” in some circles, this is an application to adjust the status to permanent resident of someone who is facing removal (deportation) from the US. This is a possible solution for individuals whose US citizen or permanent resident family members would suffer from their deportation. An applicant, however, may not affirmatively apply for it simply by showing that they’ve lived in the US for ten years. It is a defensive application; therefore, the applicant must already be facing removal in immigration court. In addition to the ten year physical presence requirement, this application requires showing that the applicant has been a person of “good moral character” during the same ten year period (including not having been convicted of certain classes of crimes), and that the applicant’s US or permanent resident spouse, parent, or child would suffer “exceptional and extremely unusual hardship” if the applicant is removed from the US. Only 4,000 of these Green Card visas are available each year.

3. Canadian First Nations People

This law comes from the 1794 Jay Treaty, which established the rights of native peoples to cross freely across the boundary that was set between the US and Canada, and it was incorporated into the earliest versions of the Immigration and Nationality Act (the “INA”). It permits “American Indians born in Canada” to enter the US and register their permanent residence. They must show documentary evidence to establish they “possess at least 50 percent blood of the American Indian race.” This blood quantum requirement has proved controversial since many Canadian First Nations people hold special “Certificate of Indian Status” or “secure status cards” which provide proof of the status but are not based on percentages of Indian blood quantum. This special path to the Green Card is specific to the individual applicant, and provides no derivative benefits to their spouse or children.

4. Informants

An exceptionally rare path to the Green Card is one that is specially set aside for individuals who have provided assistance to law enforcement as a witness or informant. These individuals must first hold the equally rare temporary S nonimmigrant visa status, and prove that they have “substantially contributed” to the successful criminal investigation or prosecution or the “prevention or frustration of an act of terrorism.” Both the nonimmigrant S visa status and the related adjustment of status (Green Card) application require that the law enforcement agency request the person be granted the status, and for the Green Card the agency must certify that the person granted the S visa substantially contributed to the investigation and prosecution or to the prevention or frustration of terrorism. Unlike the vast majority of Green Card applicants, an applicant for the Informant Green Card may have most grounds of “inadmissibility” waived.

5. US Military Service and Assistance

There are a number of Green Card options connected with service in and assistance to the US armed forces. One relates to nationals of countries that have a treaty with the US allowing them to enlist in the US armed forces. Currently, only the Philippines, the Federated States of Micronesia, and the Republic of the Marshall Islands have such a treaty. In order to qualify, the military member must have enlisted from outside the US and must show that they either already served for a total of twelve years in the military and were separated honorably, or else have served for at least six years and re-enlisted for at least another six years. This application also requires that the Executive Branch of the US Armed Forces has recommended the military member for permanent residence.

There are also a few special immigrant visa programs for individuals from Iraq and Afghanistan who assisted the US government or US armed forces in those countries. The most highly publicized of these programs relates to Iraqi and Afghan translators and interpreters. In order to qualify, a translator or interpreter must be able to show that they worked directly as a translator or interpreter with the US Armed Forces, or under the authority of the Chief of Mission in the country, for a period of at least twelve months. These are extremely limited—only fifty are available in each fiscal year. Aside from the numerical limitation there is a practical limitation as well. The law requires extensive background checks for all applicants, and this “extreme vetting” can lead to extraordinary delays in visa issuance and the ability of the translators and interpreters to actually enter the US. While the Obama administration sought funds from Congress to expand the program, many Republican members of Congress want to scale the program back. The program is also oversubscribed—according to the Department of State website, they are no longer scheduling interviews for Afghan applicants effective March 1, 2017. For the translators and interpreters who do manage to enter the US with these visas, they and their families are eligible for many social service benefits also available to refugees.

A separate program (under the Afghan Allies Protection Act of 2009) was created specifically for Afghans who worked for the US government in Afghanistan for at least one year after October 2001, and experienced threats for that work. The number of available visas is very limited, and according to US Citizenship & Immigration Services (USCIS), no additional visas will be issued after March 31, 2017;  however, bills have been introduced in Congress to increase the number of visas under this program.

A similar program for Iraqis (under the National Defense Authorization Act for Fiscal Year 2008) provides up to 5000 immigrant visas per year for Iraqis who served the US government in Iraq for at least one year after March 2003, and experienced threats for that work. As with the translator and interpreter program, applicants under this program must also clear extensive background checks.

6. Less Common Family-based Options

Obtaining a Green Card through a family relationship is perhaps the most common method, but generally when the familial relationship ceases (through death or divorce, for example), this often would mean the Green Card application cannot proceed as well; however, in two important scenarios the applications can still be granted.

One of these programs (authorized by the Violence Against Women Act, or VAWA), allows foreign nationals who have been abused by their US citizen or Lawful Permanent Resident (LPR) spouse to petition for themselves. It also allows the parent of a child abused by the spouse to petition as well. It allows abused parents of US citizens or LPRs to petition for themselves. The abused spouses and children of the abusers may also petition for their own children. There are a number of specific requirements for these kinds of Green Cards, including providing evidence of suffering battery/extreme cruelty and—for spouses—filing the petition within two years of the termination of the marriage, if terminated. VAWA has been a lifeline for abused foreign nationals and the immigration benefits it provides luckily do not depend on congressional reauthorization.

Another lifeline was extended to widows and widowers of US citizens. Prior to 2009, when the petitioner of a family-based petition died, the petition and the ability of the beneficiary to obtain the Green Card died with it, unless the widow(er) could prove marriage for a period of two years prior to the US citizen’s death. This caused extreme suffering to those widow(er)s who not only had to grieve the death of a spouse but faced expulsion from the US as well. After much lobbying and advocacy, this rule changed and now these widow(er)s may petition for themselves as long as the petition is filed within two years of the death and they can show that the marriage was bona fide, and that they have not remarried.

USCIS has a helpful list of many of these and several other lesser-known Green Card options on its website. While the paths to permanent residence outlined above may not be for everyone, they illustrate how political, historical, humanitarian, and law enforcement realities have influenced the laws on the books today and confirm that, in this country, each person’s path to permanent residency is unique.