I Want a Green Card! How Do I get One?

Firstly, are you sure you want a green card?  Before embarking on the journey of obtaining a green card, you need to be sure it is the best option for you. The best way to determine this is to consult with an immigration attorney, however, reading this article is a good first step.

There are four ways to get a green card:

• Family relationship
• Employment
• Investment
• Green card lottery

Family Relationship

If your spouse, sibling, or parent is a US citizen, they can petition for a green card on your behalf and you will not have to wait in any “visa queues” (although you will need to wait for the standard processing times).  

Other relationships may qualify, but there will be visa queues, anywhere from 1.5 to 23 years (currently).

Employment

If you can demonstrate “extraordinary ability” in your field, then you may qualify for an employment-based green card under the EB-1-1 category.  If you are a high-level manager at a company that wishes to transfer you to their US office, you may qualify for a green card under the EB-1-3 category.  There are other employment-based categories for professionals, but usually a lengthy “labor certification” process will be required whereby your sponsoring employer will need to prove that they could not find any US citizens or permanent residents to fill your role.

Investment

The general requirement for the investment green card, the EB-5, is to invest at least $1 million into a business whereby that cash influx will generate at least 10 new full-time jobs for Americans. However, this threshold is reduced to $500,000 if the business in which you are investing is located in an area of high-unemployment, or a rural area.

Green Card Lottery

If you are from an eligible country (Australia generally is an eligible country), and you want a green card, you may wish to enter the “Diversity Visa Program,” known as the green card lottery. the lottery is open in October every year. We recommend to enter the lottery, through the official government website: http://travel.state.gov (Look for “Diversity Visa Program.”)

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SmartGate for Singaporean nationals - now available

Minister Cash announced today that the SmartGate capability will be permanently extended to include arrivals for Singaporean nationals at the eight major Australian airports. SmartGate is currently availalbe on a permanent  basis for Australian, New Zealand, US and UK citizens on a permanent basis and is still being trialled for Swiss electronic passport holders.

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I am in a relationship with an Australian but do not have a visa. Can I apply for a partner visa while onshore?

This is a question which seems to be asked quite frequently these days. The answer is that in some limited circumstances it may be possible for persons who are in a relationship with an Australian citizen, permanent resident or eligible New Zealand citizen and who do not have a current substantive Visa, to apply for a partner visa whilst onshore.

Generally speaking, in order for a partner visa application to be valid, the making of the application must comply with schedule 3 criterion 3001 of the migration regulations, which provide that the application must be made within 28 days of last holding a substantive Visa.

If the relevant schedule 3 criteria has not been met, it is necessary for a decision maker to determine if compelling reasons exist for not applying it. Compelling reasons relate to the hardship that can result if an unlawful noncitizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.

Under policy, compelling reasons include the existence of an Australian citizen child or a long-standing partner relationship (taken to be at least 2 years) between an applicant and sponsor, at time of application.

The term ‘compelling’ is not defined in the legislation, however in a full Federal Court case it was said that in any view of the meaning of compelling ‘the circumstances must be so powerful that they leave the decision maker to make a positive finding that the regulation should be waived’. Policy states that the existence of a genuine relationship between an applicant and their sponsor is not sufficient to establish compelling reasons to waive schedule 3; however it is not prescriptive as to what circumstances do constitute compelling factors.

Another hurdle which applicants must overcome is that in addition to being able to demonstrate that there are compelling circumstances, it is also necessary to show that the failure to lodge a partner visa application whilst not holding a substantive visa was due to circumstances beyond the applicant’s control.

In summary therefore, whilst it is possible for persons who do not hold a current substantive Visa and who are in a partner relationship to lodge a partner visa application, it is necessary to be mindful of what is required to be shown in order to avoid a rejection.

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Onshore Medical Services - health examinations

In July 2014 the department will change to a new migration medical services provider.

The current Onshore Medical Services Contract between the Department of Immigration and Border Protection (DIBP) and the current service provider Medibank Health Solutions (MHS) will expire on 25 July.

From 28 July the provision of visa medical examinations and assessments to clients in Australia will commence with Bupa Medical Visa Services.

The department of immigration has stated that they believe that the change to the new service provider will bring a number of significant client service enhancements that will result in the delivery of high quality and efficient services to meet the required client service standards.  The scope of the contract will include onshore visa and migration medical services currently undertaken by MHS, as well as other visa and migration services currently undertaken by the department.

As a result, those clients seeking health examinations in Australia in July may be impacted.

·         If you are booking an appointment on behalf of a client prior to 28 July you must continue to contact MHS to organise the appointment.

·         From 28 July you are required to contact Bupa Medical Visa Services for any new onshore health assessments or reviews of past Medical Officer of the Commonwealth opinions.

·         For clients who have lodged an assessment with MHS prior to 25 July you are advised to contact Bupa Medical Visa Services on 1300 794 919 to enable the medical assessments to be finalised.

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Validity of skills assessment

Following amendments to the Migration Regulations 1994, from 1 July 2014, if a skills assessment is mandatory as part of a visa application, it will only be valid for a period of 3 years from the date of issue, unless a shorter validity period is specified on the assessment.

A skills assessment must be valid at the time of lodgement for the following visas:

• Direct Entry stream of the Employer Nominated Scheme (subclass 186) visa;
• Direct Entry stream of the Regional Sponsored Migration Scheme (subclass 187) visa; and
• Graduate Work stream of the Temporary Graduate (subclass 485) visa.

These changes do not affect the Temporary Work (Skilled)(subclass 457) visa.

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User pays for all biometrics at all AVACs

From 1 July 2014, the Department of Immigration and Border Protection is moving to a full user-pays model at all biometric Australian Visa Application Centres (AVACs). This means that service providers will charge clients a service fee for visa application lodgement and biometric collection. This is in addition to visa application charges.

Biometrics are collected at AVACs, Australian Biometrics Collection Centres (ABCCs) or at Australian Missions using a quick, discreet and non-intrusive process that captures a facial image with a digital camera and a 10-digit fingerprint scan with a digital finger scanner.

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Subclass 190 Anomaly - English at time of invitation and application

An anomaly has been identified in the SC 190 regulations. Reg 190.213 requires the applicant to have Competent English at the time of INVITATION. However, the definition of Competent English at Reg 1.15C requires the applicant to also have a valid English language test result at time of APPLICATION.

If the validity of an applicant's test result expires between the time of invitation and the time of application lodgement, they will not meet the requirement for Competent English and the visa will be refused.

The Department is aware of the anomaly and are moving to rectify it, but this will take some time.

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