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| Overview of U.S. Immigration Law |
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This article provides a general overview of the laws governing
immigration to the United States. Authority over immigration has
long been held by Congress, an authority judicially upheld at various
times on a number of Constitutional grounds. Attempts by individual
states to create independent immigration-based laws have not been
successful. The Immigration & Nationality Act of 1952 (INA) is the
starting point for current U.S. immigration law. A large number of
immigration acts have been passed by Congress since 1952, but all of
these acts - no matter how comprehensively they have altered pre-existing
law - have been amendments to the INA. Several federal government
agencies are empowered to enforce and administer aspects of the
immigration laws, including the Immigration & Naturalization Service
(Department of Justice), the Department of Labor and U.S. Consulates
abroad (Department of State).
I. THE FUNDAMENTAL CONCEPT OF "STATUS"
All persons physically present in the U.S. have an immigration
status. Immigration status is a critical factor in determining the
many of the rights and restrictions of an individual in the United States,
including rights related to employment, education, voting, government
benefits and freedom from removal. To understand the field of
immigration, it is important to understand the major types of status
conferred by the immigration laws of the U.S.
A. U.S. Citizens/Nationals
The status of the vast majority of people living in the U.S. is that
of U.S. citizen. U.S. citizenship is acquired at birth by all persons
born in the U.S. It also may be acquired at birth by persons born
outside the U.S. to one or two U.S. citizen parents. In addition, under
specific circumstances, legal permanent residents may apply for U.S.
citizenship through the process of naturalization. All individuals who
are not U.S. citizens are foreign nationals or "aliens."
B. The Primary Types of status held by foreign nationals in the U.S.
| 1. Permanent Resident
A permanent resident is also known as an immigrant. The document
evidencing immigrant - or permanent resident - status is called an Alien
Registration Receipt Card or a green card. Permanent resident status
permits a foreign national to remain permanently in the U.S. and maintain
his/her own citizenship. Permanent residence can be conditional and it
can be affirmatively or inadvertently abandoned by the foreign national
resident or revoked by U.S. authorities.
2. Nonimmigrant
A nonimmigrant is a foreign national who has been admitted into the U.S. temporarily for a specific purpose, i.e. to study, to visit, to work in a particular job, etc. Often a nonimmigrant is expected to depart the U.S. after a temporary stay, although this is not always a requirement. Most nonimmigrants are admitted into the United States for a specific period of time.
3. Other categories of status held by foreign nationals
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a. Asylee
An asylee is an individual who has been granted political asylum.
Typically, an asylee can apply for permanent resident status one year
after the grant of political asylum.
b. Temporary Resident
This status is held by individuals who applied for the legalization
or "amnesty" program, which was instituted under the Immigration Reform
& Control Act of 1986. Most participants in this program have since
obtained permanent resident status.
c. Temporary Protected Status
This category was created by the Immigration Act of 1990 and
permits persons from countries designated by the Attorney General to
remain in the U.S. with work authorization during a specified period of
time. Countries are designated because of armed conflict, natural
disaster or other extraordinary circumstance of a temporary duration.
d. Out of Status
Any foreign national who violates the terms of his or her admission may
be deemed to be out of status. This typically occurs when a nonimmigrant
remains in the United States beyond the expiration date of her status
or when a foreign national engages in employment in the United States
for which she is not authorized.
e. Undocumented Alien
An undocumented alien is an individual who has entered the U.S.
illegally, without entry documentation.
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II. OBTAINING PERMANENT RESIDENCE
The U.S. immigration laws include established limitations as to
who is eligible to obtain permanent resident status. Before a foreign
national can apply for admission into the U.S. as an immigrant (if
outside the U.S.) or to have status adjusted to permanent residence
(if inside the U.S.), that foreign national must first be approved as
eligible under one of the authorized immigrant categories established
by Congress. The immigrant categories are divided below into four groups. It should be noted that most of the immigrant categories are subject to annual numerical limitations established by statute. Accordingly, it is common for significant backlogs to develop as there can often be more eligible applicants in a given year than there are "spaces" available.
Eligibility within an immigrant category is usually sought by a
petitioner (e.g., a family member or prospective employer) who files a
petition with the Immigration & Naturalization Service on behalf of a
beneficiary (the prospective immigrant). Once the petition is approved
and there is a number immediately available within the particular
immigrant category, the foreign national may apply for permanent
resident status. In some instances, the application for permanent
residence may be made with the INS (Department of Justice) if the
applicant is within the U.S. Otherwise, the application is filed
overseas at the U.S. Consulate (Department of State) having jurisdiction
over the applicant's place of residence.
A. Permanent Residence Based Upon a Qualifying Family Relationship
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1. Immediate Relatives
This family-sponsored category includes the spouse and minor,
unmarried child of United States citizen and the parents of United
States citizens who are over the age of 21. To determine eligibility
based on a familial relationship, it is essential to consider various
bodies of law involved in establishing relationships, including who is
a "child," what is marriage, divorce, etc. Immediate relatives are
not subject to a per-country quota or annual limit.
Spouses of U.S. citizens are granted conditional permanent residence
if married less than two years. Two years after obtaining conditional
residence, they must apply to have the conditional basis of their
resident status removed or their status is automatically revoked.
2. Family-Sponsored Preferences
All family-sponsored immigrant categories other than immediate
relatives of U.S. citizens are structured in a preference system, which
allocates an annual number of immigrant visas based upon a preference
hierarchy among the categories and upon per-country maximum quotas.
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a. First Preference
Unmarried adult sons and daughters of U.S. citizens.
b. Second Preference
This category is divided into two subcategories: Part 2A is
comprised of spouses and minor children of permanent residents. Part 2B
consists of unmarried adult sons and daughters of permanent residents.
c. Third Preference
Married sons and daughters of U.S. citizens.
d. Fourth Preference
Brothers and sisters of adult U.S. citizens.
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B. Permanent Residence Based Upon Employment
There are six immigrant categories based upon some type of qualifying
business or employment relationship. As in the immigrant categories
based upon family sponsorship, employment-based categories are subject
to annual numerical limits, based upon the perceived benefits to the U.S.
of individuals with greater skills and expertise who qualify in the
"higher" categories. The descriptions below are not intended to be
exhaustive and do not necessarily detail all of the specific requirements
for a given category.
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1. Priority Workers (EB-1)
There is no prerequisite of Alien Labor Certification for petitions filed in this classification. This classification includes the following three groups:
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a. Individuals of extraordinary ability in the sciences, arts, education, business, or athletics
Federal regulations define extraordinary ability as a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. An extraordinary ability petition may be filed by a prospective employer, but may also be filed by the foreign national herself. In addition, unlike most employment-based classifications, approval requires no specific offer of employment.
b. Outstanding professors or researchers
This category is available to professors and researchers with a demonstrated record of excellence in the field and who have been offered a tenure-track position with a U.S. institution of higher education or a similar position at a research institution or established research division of a corporation.
c. Certain multinational executives and managers
This category is intended to facilitate the transfer of key managerial and executive personnel within a multinational corporation. The classification is generally available to an individual who has been employed abroad in managerial or executive capacity by a branch, subsidiary, affiliate or parent of a U.S. company for at least one year and who is being transferred to the U.S. company.
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2. Professionals with Advanced Degrees and Individuals of Exceptional Ability (EB-2)
Alien Labor Certification is normally required for petitions filed in this category. A waiver of the required offer of employment can be sought by providing evidence that the beneficiary's presence in the United States is in the national interest. If the waiver of the job offer is granted based upon national interest, Alien Labor Certification is also not required. This classification includes the following two groups:
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a. Professionals with Advanced Degrees
Qualification in this category requires demonstration that the beneficiary holds at least a Master's degree in the field and that the position offered to the beneficiary requires an individual with an advanced degree. Equivalence to a Master's degree may be established by attainment of a Bachelor's degree and five years of progressively responsible work experience in the field.
b. Individuals of Exceptional Ability
This classification is available to individuals demonstrating exceptional ability in the sciences, arts or business. Federal regulations define exceptional ability as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
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3. Professionals and Skilled Workers (EB-3)
This employment-based category requires Alien Labor Certification. It includes professionals with Bachelor's degrees and skilled workers in occupations, which require at least two years of experience, training and/or education.
4. Other Workers
This group includes unskilled workers in occupations that require less than two years of, experience, training and/or education. It is technically a part of the EB-3 category, but since it is subject to separate, severe limitations on annual availability, it is generally regarded as a distinct category. Accordingly, there is usually a significant backlog in this category. This classification also requires Alien Labor Certification.
5. Special Immigrant Religious Workers
This category is available to certain qualified ministers and religious workers coming to the United States to practice their vocation. Alien Labor Certification is not required in this category.
6. Investors
A foreign national investing a specified amount of capital at-risk in a commercial enterprise may be eligible in this category. The enterprise must generate full-time employment for U.S. workers and permanent residence is granted conditionally. After two years, the investor must demonstrate that the investment was established and in continuous operation during the two year period.
7. Alien Labor Certification
Alien Labor Certification is a determination by the U.S. Department of Labor that there are no qualified U.S. workers available for a specified position. Alien Labor Certification is an often difficult process, which can take several years to complete. It requires proof that the employer has engaged in active recruitment to fill the position with an American worker and that the employer was not able to locate sufficient minimally-qualified U.S. workers. Alien Labor Certification is required in employment-based immigrant petitions for beneficiaries in the EB-2 (Second Preference) category, unless the foreign national's work is found to be in the national interest. It is also required in all EB-3 (Third Preference) category petitions.
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C. Permanent Residence based on Diversity: The Lottery
Applications are accepted annually from foreign nationals born in countries historically underrepresented under the U.S. immigration system. The eligible countries of origin are determined each year by the Department of State, and only persons from countries designated may apply for a diversity visa. Applicants take visa numbers on a first come, first serve basis. Generally, to be granted permanent residence, individuals selected must have a high school education.
D. Other Avenues to Permanent Residence
The above-described categories constitute the affirmative immigration applications available to foreign nationals desiring to come to the U.S. Other foreign nationals are able to qualify for permanent residence either because they are refugees or because they have qualified under the various legalization programs, which have been enacted in the past.
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1. Refugee Status and Political Asylum
A foreign national who can establish that she has a reasonable fear of government persecution on the basis of race, religion, political opinion, membership in a social group or nationality may be accorded refugee status or political asylum. Asylum is generally granted to persons making the claim within the U.S. while refugee status is accorded to persons making the application outside the U.S. Political asylum is a two-step process, requiring the grantee of political asylum to apply for permanent residence after at least one year. A refugee is admitted to the U.S. as a permanent resident. There are numerical limitations on refugees, which change annually depending on political conditions.
2. The Legalization Programs
The Immigration Reform & Control Act of 1986 authorized certain foreign nationals with extended illegal residence in the U.S. to apply within a limited period to have their status in the United States legalized. The procedure called for a two-step application system, with a temporary resident status available during the first period after an application was approved and permanent status available after completion of a second application procedure. The vast majority of these applicants are now permanent residents and many have since become U.S. citizens.
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III. THE ABC'S OF NONIMMIGRANT STATUS
The U.S. immigration laws presume that all foreign nationals coming to the United States are intending to immigrate to the United States unless they are admitted in some nonimmigrant classification. Every nonimmigrant classification allows the admission of a foreign national into the United States for a specific purpose, which is usually temporary in nature. The rights of nonimmigrants in the United States are limited by the nature of the classification under which they were admitted. The duration of admission is also usually governed by the type of nonimmigrant status.
Admission of a nonimmigrant is usually a two-step process. Most nonimmigrants must first obtain a visa from a U.S. Consulate in the country where they reside. Canadian citizens are usually exempt from the visa requirement as are visitors from a number of countries. Having obtained a visa, a foreign national then must be admitted by an INS Officer upon arrival at a U.S. airport or at a border. The INS Officer can deny admission to any foreign national (nonimmigrant or immigrant) who lacks the proper documentation or is otherwise deemed to be inadmissible to the United States.
The following is a list of the major nonimmigrant categories with a brief description of each. As can be easily noted, the categories are designated alphabetically from A to T. Categories of special note to U.S. employers are listed in bold.
| Designation | Brief Description |
| A-1, A-2, A-3 | Foreign government employees & their families/servants (including diplomats, visiting officials). |
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B-1, B-2 | Business visitors, not engaged in productive employment in the U.S. and visitors for pleasure. B-2 is the basic tourist classification.
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C-1, C-2, C-3 | Individuals in transit through the United States or en route to the United Nations.
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D-1 ,D-2 | Foreign crew members of ships and aircraft.
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E-1, E-2 | Individuals entering the United States to engage in trade or investment pursuant to a bilateral treaty between the United States and their country of nationality. This classification authorizes employment in the United States to manage the trade or investment enterprise. Family members are accorded the same classification but are not authorized to work.
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F-1, F-2 | Foreign students authorized to study in the United States. Limited work authorization is available during and after completion of the course of study for purposes of practical training in the field of study. Family members are accorded F-2 status and are not authorized to work.
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G-1, G-2, G-3, G-4, G-5 | Employees of international organizations & their families/servants (including diplomats, visiting officials).
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H-1A, H-1B, H-2A, H-2B, H-3, H-4 | Certain qualified temporary workers, trainees and their families. The H-1B category is accorded to individuals employed in a Specialty Occupation and is one of the most important nonimmigrant categories for employers wishing to hire a foreign national in a professional or highly technical position.
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I | Media representatives.
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J-1, J-2 | Exchange visitors and their families. The J visa program is administered by the USIA and J-1 nonimmigrants may be coming to the U.S. to engage in lecturing, research, study, observation or training. Graduates of foreign medical schools often complete medical residency programs in the U.S. in J-1 status. Most individuals in J status are subject to a requirement that they return to their home country for at least two years upon completion of the J program. Waivers of this requirement are available in some circumstances.
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K-1, K-2 | Fiancé(e) of a U.S. citizen (and any minor children).
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L-1A, L-1B, L-2 | Intracompany transferees and their families. This status allows the transfer of qualifying managers, executives and employees with specialized knowledge of international corporations to the U.S.
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M-1, M-2 | Vocational students and their families.
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N | Family members of G-4 special immigrants.
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NATO-1 thru NATO-7 | Certain qualified foreign nationals engaged in activities related to the North Atlantic Treaty Organization.
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O-1, O-2, O-3 | Individuals of extraordinary ability in the sciences, arts, education, business or athletics and accompanying assistants and family members.
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P-1, P-2, P-3 | Athletes and entertainers who are recognized internationally, part of a reciprocal exchange program or are culturally unique.
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Q | International cultural exchange foreign nationals.
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R-1, R-2 | Ministers, religious workers and their families.
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TN | Mexican and Canadian citizens qualified as temporary workers under NAFTA.
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Please note that this information is presented as a general overview. It is not intended to be used as a conclusive guide for action in any particular case. Please seek assistance from an immigration attorney with regard to individual cases.
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Events
AILA Citizenship Day
Race Judicata August 2009 |
