Immigration

About Immigration

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.

Introduction

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-Based Immigration

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.

Employment-Based Immigration

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.

Permanent Immigration

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.

Per-Country Ceilings

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.

U.S. Citizenship

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.