U.S. immigration law is complicated and there is often much confusion as to how it operates. Immigration law has been built upon the following important principles:
- The reunification of families
- Admitting immigrants with skills that are valuable to the U.S. economy
- Protecting refugees, and promoting diversity.
There are a range of programs and categories that people may apply to be a US Citizen.
The laws governing current immigration policy is called The Immigration and Nationality Act (INA). The INA allows the United States to grant up to 675,000 (2020) permanent immigrant visas each year across the visa categories.
On top of these 675,000 visas, the INA sets no limit on the annual admission of U.S. citizens’ spouses, parents, and children under the age of 21. In addition, each year the US president is required to consult with Congress and set an annual number of refugees to be admitted to the United States through what is known as the U.S. Refugee Resettlement Process.
Once a person obtains an immigrant visa and comes to the United States, they become a lawful permanent resident (LPR). Also, in some circumstances, non-citizens already inside the United States can obtain LPR status through a process known as “adjustment of status.” Lawful permanent residents are foreign nationals who are permitted to work and live lawfully and permanently in the United States. LPRs are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country permanently, even if they are unemployed.
After residing in the United States for five years (or 3 years in some circumstances), LPRs are eligible to apply for full U.S. citizenship.
It is impossible to apply for citizenship through the normal process without first becoming an LPR.
Each year the USA also admits a number of non citizens on a temporary basis. Such “non-immigrant” visas are granted to everyone from tourists to foreign students to temporary workers permitted to remain in the U.S. for years. While certain employment-based visas are subject to annual caps, other non-immigrant visas (including tourist and student visas) have no numerical limits and can be granted to anyone who satisfies the relevant criteria for obtaining their visa.
Family unification is an important principle governing immigration policy. The family-based immigration category allows U.S. citizens and LPRs to bring family members to the United States.
Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.
Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and petitioners must meet age and financial requirements.
Immediate relatives are classified as:
- Spouses of U.S. citizens;
- Unmarried minor children of U.S. citizens (under 21-years-old);
- and Parents of U.S. citizens (petitioner must be at least 21-years-old to petition for a parent).
A limited number of visas are available every year under the family preference system, as above prospective immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements.
The preference system includes:
- Adult children (married and unmarried)
- Brothers and sisters of U.S. citizens (petitioner must be at least 21-years-old to petition for a sibling)
- Spouses and unmarried children (minor and adult) of LPRs.
In order to balance the overall number of immigrants arriving based on family relationships, the US Congress has established a system for calculating the available number of family preference visas for any given year. By law, the number of family-based visas allocated through the preference system cannot be lower than 226,000. The number of immediate relatives often exceeds 250,000 in any given year and triggers the 226,000 minimum for preference visas. As a result, the total number of family-based visas often exceeds 480,000.
For example, in 2017, family-based immigrants comprised 66% of all new LPRs admitted to the United States. In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish the legitimacy of the relationship, meet minimum income requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States or adjustment to LPR status within the United States. The individual relative must also meet a number of eligibility requirements that include submitting to a medical exam and obtaining required vaccinations, an analysis of any past immigration or criminal history, as well as demonstrating that they will not become primarily dependent on the government for subsistence.
Spouses and children who accompany or follow the principal immigrant (the one sponsored by the U.S. citizen or LPR under the family-preference category) are referred to as derivative immigrants.
The United States provides various ways for immigrants with valuable employment skills to come to the country on either a permanent or a temporary basis.
Temporary Visa Classifications
Temporary employment-based visa classifications permit USA employers to hire and petition for foreign nationals for specific jobs for limited periods.
Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs.
There are more than 20 types of visas for temporary nonimmigrant workers. A lawyer will be able to guide you through the many employment visa categories which include amongst others; L-1 visas for intracompany transfers; various P visas for athletes, entertainers, and skilled performers; R-1 visas for religious workers; various A visas for diplomatic employees; O-1 visas for workers of extraordinary ability; and various H visas for both highly-skilled and lesser-skilled workers.
Visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents (family), and other factors. In most cases individuals must leave the United States if their status expires or if their employment is terminated. It may be possible, depending on the type of job and the foreign national’s qualifications, for an employer to sponsor the worker for permanent employment.
The current numerical limit for permanent employment-based immigrants is 140,000 per year. This number includes the immigrants plus their eligible spouses and minor unmarried children, meaning the actual number of employment-based immigrants is less than 140,000 each year.
The 140,000 visas are divided into five preference categories. Immigration lawyers and services can take both the prospective employer and foreign national through the processes defined by the Department of Labor, and the Secretary of Labor who must certify that all applications meet requirements before the sponsor may file a petition with USCIS. For consular processing, the immigrant visa application cannot be filed until after USCIS approves the immigrant petition.
In addition to the numerical limits placed upon the various immigration preferences, the INA also places a limit on how many immigrants can come to the United States from any one country. Currently, no group of permanent immigrants (family-based and employment-based) from a single country can exceed 7% of the total number of people immigrating to the United States in a single fiscal year.
Refugees and Asylees Protection of Refugees, Asylees, and other Vulnerable Populations
There are several categories of legal admission available to people who are fleeing persecution or are unable to return to their homeland due to life-threatening or extraordinary conditions.
Refugees are admitted to the United States based upon an inability to return to their home countries because of a “well-founded fear of persecution” due to their race, membership in a particular social group, political opinion, religion, or national origin. Refugees apply for admission from outside of the United States, generally from a “transition country” that is outside their home country. The admission of refugees turns on numerous factors, such as the degree of risk they face, membership in a group that is of special concern to the United States (designated yearly by the President of the United States and Congress), and whether or not they have family members in the United States.
Each year, the president, in consultation with Congress, determines the numerical ceiling for refugee admissions.
The Diversity Visa Program
The Diversity Visa lottery was created by the Immigration Act of 1990 as a dedicated channel for immigrants from countries with low rates of immigration to the United States. Each year, 55,000 visas are allocated randomly to nationals from countries that have sent fewer than 50,000 immigrants to the United States in the previous five years.
To be eligible for a diversity visa, an immigrant must have a high-school education (or its equivalent) or have, within the past five years, a minimum of two years working in a profession requiring at least two years of training or experience. Spouses and minor unmarried children of the principal applicant may also enter as derivatives. A computer-generated random lottery drawing chooses selectees for diversity visas. The visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the last five years.
People from eligible countries in different continents may register for the lottery. However, because these visas are distributed on a regional basis, the program especially benefits those from Africa and Eastern Europe
Other Forms of Humanitarian Relief
Temporary Protected Status (TPS) is granted to people who are in the United States but cannot return to their home country because of “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed conflict.” TPS is granted to a country for six, 12, or 18 months and can be extended beyond that if unsafe conditions in the country persist. TPS will not necessarily lead to LPR status or give any other immigration status.
Deferred Enforced Departure (DED) provides protection from deportation for individuals whose home countries are unstable, therefore making returns dangerous. Unlike TPS, which is authorized by statute, DED is at the discretion of the executive branch. DED does not necessarily lead to LPR status or confer any other immigration status.
Deferred Action for Childhood Arrivals (DACA) is a program established in 2012 which permits certain individuals who were brought to the United States under the age of 16 and who had resided continuously in the United States since June 15, 2007, to remain in the United States and work lawfully for at least two years, so long as they have no significant criminal record and have graduated high school or college or received a degree equivalent. It does not confer any path to permanent legal status and requires renewal every two years.
Certain individuals may be allowed to enter the U.S. through parole, even though they may not meet the definition of a refugee and may not be eligible to immigrate through other channels. Parolees may be admitted temporarily for urgent humanitarian reasons or significant public benefit.
In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or through the Violence Against Women Act, VAWA). There are other exceptions including, but not limited to, members of the U.S. military who serve in a time of war or declared hostilities. Applicants for U.S. citizenship must be at least 18-years-old, demonstrate continuous residency, demonstrate “good moral character,” pass English and U.S. history and civics exams (with certain exceptions), and pay an application fee, among other requirements.
Immigration Case Law
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China; and during all the time of their residence… click to see more
SHAUGHNESSY v. UNITED STATES EX REL. MEZEI
MR. JUSTICE CLARK delivered the opinion of the Court.This case concerns an alien immigrant permanently excluded from the United States on security grounds but stranded in his temporary haven on Ellis Island because other countries will not take him back. The issue is whether the Attorney General’s continued exclusion of respondent without a hearing amounts to an unlawful detention, so that courts may admit him temporarily to the United States on bond until arrangements are made for his departure abroad. After a hearing on respondent’s petition for a writ of habeas corpus… click here to see more
MATHEWS v. DIAZ ET AL.
MR. JUSTICE STEVENS delivered the opinion of the Court.
The question presented by the Secretary’s appeal is whether Congress may condition an alien’s eligibility for participation in a federal medical insurance program on continuous residence in the United States for a five-year period and admission for permanent residence. The District Court held that the first condition was unconstitutional and that it could not be severed from the second. Since we conclude that both conditions are constitutional, we reverse… click to see more
FIALLO v. BELL
MR. JUSTICE POWELL delivered the opinion of the Court.This case brings before us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C.§§ 1101(b)(1)(D) and 1101(b)(2).IThe Act grants special preference immigration status to aliens who qualify as the “children” or “parents” of United States citizens or lawful permanent residents. Under § 101(b)(1), a “child” is defined as an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by virtue of his relationship with his natural mother….. click to see more
Vartelas v. Holder
Panagis Vartelas, a native of Greece, became a lawful permanent resident of the United States in 1989. He pleaded guilty to a felony (conspiring to make a counterfeit security) in 1994, and served a prison sentence of four months for that offense. Vartelas traveled to Greece in 2003 to visit his parents. On his return to the United States a week later, he was treated as an inadmissible alien and placed in removal proceedings. Under the law governing at the time of Vartelas’ plea, an alien in his situation could travel abroad for brief periods without jeopardizing his resident alien status… click to see more
Lawyer Reviewed Cases
Berardo v. United States Citizenship and Immigration Services
Reviewed by Tadeo & Silva immigration attorneys
Berardo is a citizen and national of Belgium. He is employed by the LAIKA animation studio in Hillsboro, Oregon as a stop-motion animator. LAIKA is an animation studio that produces award-winning stop-motion animated feature films. Berardo has worked as a stop- films, including ParaNorman, Kubo and the Two Strings, The Boxtrolls, and Missing Link… click to see more
Esdale v. Sarasota County Sheriff’s Office
reviewed by Manji Law, P.C.
Each petitioner is a Cuban national who came to the United States in 1980 during the Mariel boatlift. The Immigration and Naturalization Service detained petitioner upon his arrival at the United States border and eventually decided to exclude him from admission into the country. 8 U.S.C. § 1226. De jure, petitioner has never entered this country. De facto, he is physically present and living subject to INS detention.. click to see more
ABUZEID et al v. NIELSEN et al
reviewed by Michael G. Murray, P.A.
MEMORANDUM OPINION Dr. Adil Abuzeid, a citizen of the United Kingdom and Saudi Arabia, applied for adjustment of his status in this country to lawful permanent residency under the Immigration and Nationality Act, 8 U.S.C. § 1255. His applications were denied several times, and he and his wife now request that this Court review, and effectively reverse, those decisions. Defendants argue that this Court has no jurisdiction to do so because Section 1252(a)(2)(B)(i) commands… click to see more
Arboireau v. Adidas Salomon AG
reviewed by Tadeo & Silva Immigration Attorneys, Inc
OPINION… Plaintiffs, Pierre Arboireau (“Pierre”) and his spouse, Sandrine Arboireau (“Sandrine”), originally filed this action on January 22, 2001, against defendants, adidas-Salomon AG and adidas America, Inc., for claims relating to the relocation of Pierre Arboireau from France to Oregon… click to see more
Carlos Hernandez-Munoz v. the State of Texas
reviewed by Michael G. Murray, P.A.
Affirmed and Memorandum Opinion filed December 28, 2012.In The Fourteenth Court of Appeals MEMORANDUM OPINION Appellant, Carlos Hernandez-Munoz, appeals the trial court’s denial of his motion for a new trial. Relying on Padilla v. Kentucky… appellant contends that… click to see more
SAGO GONZALO v. THORNBURGH
reviewed by Manji Law, P.C.
F. A. LITTLE, JR., UNITED STATES DISTRICT JUDGEEach petitioner is a Cuban national who came to the United States in 1980 during the Mariel boatlift. The Immigration and Naturalization Service detained petitioner upon his arrival at the United States border and eventually decided to exclude him from admission into the country. 8 U.S.C. § 1226. De jure, petitioner has never entered this country… click to see more
Allegheny Casualty Co. v. State
reviewed by Michael G. Murray, P.A.
This is an appeal from the trial court’s entry of a final judgment finding a bond forfeiture in which Appellee was granted final forfeiture of a bail bond of $1,500 against Appellant. For the reasons stated herein, we affirm… click to see more
Almendarez-Torres v. United States
reviewed by Ackah Business Immigration Law
Title 8 U. S. C. Section 1326(a) makes it a crime for a deported alien to return to the United States without special permission and authorizes a maximum prison term of two years. In 1988… click to see more
Rollins v. State
reviewed by Tadeo & Silva Immigration Attorneys
This Court granted appellant Michelle Yearwood Rollins’s application for a certificate of probable cause to appeal the denial of her petition for habeas corpus relief. In her petition, Rollins alleged she received… click to see more
JOHNSON, C. J., McMURRAY, P. J., PHIPPS, J.
reviewed by Manji Law P.C.
The father of R. H. and L. H. appeals from the termination of his parental rights. 1 The juvenile court’s findings reveal that the father is an undocumented Iranian immigrant; that the father… click to see more
In the Interest of R.H.
reviewed by Manji Law P.C.
OHNSON, C. J., McMURRAY, P. J., PHIPPS, J.MC-089The father of R. H. and L. H. appeals from the termination of his parental rights. 1 The juvenile court’s findings reveal that the father is an undocumented Iranian immigrant; that the father pleaded guilty for distributing cocaine in 1989; that the father jumped bond and fled the United States before he could be sentenced for this offense… click to see more
Immigration Case Summaries
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