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Immigration Basics
1.0 Introduction
2.0 Key Principles
2.1 Alien
2.2 Nonimmigrant v. Immigrant
2.3 Consular Processing Overseas v. Adjustment of Status in the U.S.
2.4 Entry v. Admission
2.5 Visa v. Status
3.0 Visa Categories
3.1 Nonimmigrant (Temporary) Visa Categories
3.2 Immigrant (Permanent) Visa Categories
3.3 Refugees/Asylum Seekers
4.0 Admission Problems
4.1 Denial of Admission
4.2 Expedited Removal
5.0 Coming to the United States
6.0 Permanent Residency
6.1 Employment Based
6.1.1 Employment Based Category/ Priority Workers (EB-1)
6.1.2 Employment Based Category/Professionals and Aliens of Exceptional Ability (EB-2)
6.1.3 Employment Based Category/ Skilled Workers Professionals and Other Workers (EB-3)
6.1.4 Employment Based Category/ Special Immigrants (EB-4)
6.1.5 Employment Based Category/ Investors (EB-5)
6.2 Family Based
6.2.1 Immediate Relatives
6.2.2 Family Sponsored Immigrants
6.3 Diversity Immigrants
7.0 Working in the U.S.
7.1 Business Visitor (B-1)
7.2 Treaty Traders and Investors (E-1 and E-2)
7.3 NAFTA Workers (TN)
7.4 Seasonal Worker (H-2)
7.5 Intracompany Transferee (L-1)
8.0 Citizenship
8.1 Citizenship At Birth
8.2 Naturalization
8.2.1 Naturalization Procedures
8.2.2 Substantive Requirements
8.3 The Oath/Dual Nationality
8.4 Loss of Citizenship
1.0
Introduction/Overview
U.S. immigration law concerns itself
with the admission, stay and removal of non citizens
(or ?aliens?) to and from the United States. The
law is entirely federal, meaning it is created and
enforced by the central government and is uniform
throughout the fifty states. They provide for administrative
and judicial review of the proceedings involved;
and create civil and criminal liability as a means
of enforcing immigration controls.
In 1952, the Congress (which is the
legislative arm of the federal government) enacted
the basic structure of U.S. immigration law which
is still in force today. That law has been changed
or amended many times, with major revisions occurring
in 1965, 1986, 1990 and 1996
Today, the main immigration statute,
the Immigration and Nationality Act (INA), is codified
as Title 8 of the United States Code (U.S.C.). While
the INA provides the basic structure of the immigration
system, the various governmental agencies that administer
the immigration laws promulgate regulations to implement
the statute. These regulations are published in
the Federal Register, and incorporated into the
Code of Federal Regulations (C.F.R.). Such regulations
must be consistent, however, with the statute, as
well as the U.S. Constitution.
The regulations of the Citizenship
and Immigration Services (CIS) are found in Title
8 of the C.F.R. The State Department?s immigration
regulations are in Title 22 of the C.F.R., as are
the J-1 regulations issued by the U.S. Information
Agency (USIA). The Labor Department?s regulations
are in Title 20 of the C.F.R.
The Departments of Homeland Security
and State share primarily responsible for administering
the immigration laws. The State Department?s Bureau
of Consular Affairs and Visa Office perform consular
services overseas that include the initial screening
and visa issuance or denial to potential immigrants
and nonimmigrants. From the time the alien arrives
at a port of entry into the United States until
he or she departs from the U.S. he is under the
jurisdiction of the Department of Homeland Security.
In March of 2003, the former Immigration and Naturalization
Service (then under the jurisdiction of the Department
of Justice) was disbanded and its functions taken
over by three newly created agencies. The Agency
primarily responsible for enforcing the immigration
laws is the Citizenship and Immigration Services
(CIS). CIS is responsible for processing applications
and petitions for work permits, permanent residence,
citizenship, political asylum, etc.? The Bureau
of Customs and Border Protection (CBP) is responsible
for the movement of people and goods through land
borders, airports and seaports. These are the inspectors
who greet new arrivals at our nation?s air and sea
ports. Finally, Immigration and Customs Enforcement
(ICE) is responsible for interior enforcement including
apprehension and detention of persons thought to
be unlawfully present in the U.S.
The CIS maintains a headquarters office
in Washington D.C., as well as four regional service
centers and thirty-four district offices throughout
the United States and overseas. The agency maintains
its web site at http://uscis.gov/graphics/lawsregs/index.htm
which provides a great deal of useful information.
The district offices, each headed by a district
director, as well as the regional service centers,
are the basic working units of the CIS. Immigration
examiners in the district office or at a regional
service center rule on a wide variety of matters,
including visa petitions, requests for extension
of stay filed by nonimmigrants, requests for permission
to work filed by nonimmigrants in those categories
to which such permission may be granted, and applications
for adjustment of status. In addition, the CIS controls
admission into the United States by inspecting travelers
at over two hundred designated ports of entry and
by patrolling the border.
In addition to the Department of Homeland
Security and its various agencies, the Department
of Justice has a judicial branch, entitled the Executive
Office of Immigration Review (EOIR), which consists
of two subunits, the immigration courts and the
Board of Immigration Appeals (BIA). The courts?
immigration judges conduct removal hearings, while
the BIA is an administrative appeals body separate
and independent from the CIS, and directly accountable
to the Attorney General. The BIA decides appeals
from decisions of immigration judges. The BIA issues
several thousand decisions a year, most of which
are not publicly available.
2.0
Key Principles
2.1
Alien
Every individual which is not a citizen
or national of the United States is considered an "alien." There are four broad classes
of aliens: (1) persons seeking admission to the
United States; (2) persons admitted permanently
as immigrants (also called lawful permanent residents
or green card holders); (3) persons admitted temporarily
as nonimmigrants; and (4) undocumented persons or
"illegal" aliens who are here without
permission from the federal government. Generally,
until a person has been admitted to the United States
they have virtually no rights under U.S. law. Congress
determines who will be admitted. Once they are admitted,
however, aliens can claim certain general protections
under the Constitution.
2.2
Nonimmigrant v. Immigrant
Aliens may come to the United States
as nonimmigrants or immigrants. A nonimmigrant is
an individual seeking to remain in the U.S. temporarily.
A nonimmigrant must intend to return to their country
of origin after their period of authorized stay
has expired, while immigrants will normally intend
to remain indefinitely in the United States.
Nonimmigrants are persons who come
temporarily to the United States for a particular
purpose (e.g., as students, tourists, diplomats,
or temporary workers). An applicant for a nonimmigrant
visa usually must convince the CIS or consular officer
that they do not intend to immigrate to the United
States and that they intend to return to their home
at the end of their authorized stay. It is often
possible to extend periods of nonimmigrant stay,
and under certain circumstances a nonimmigrant may
"adjust status" to that of an immigrant,
thereby gaining the right of permanent residence.
Immigrants are people who have a right
to live permanently in the United States. Once the
individual is officially granted permanent resident
status, he or she is provided a laminated document
as proof of that status. The document is generally
known as a ?green card? although the document is
not in fact green (and has not been green for many
years.) Most aliens obtain permanent residency through
the sponsorship of either an employer or close family
relative. Some however will qualify as refugees
or asylum seeker and others through a variety of
special programs and procedures such as the green
card lottery, cancellation of removal, or LULAC/CSS.
Most permanent residents can apply
for U.S. citizenship after five years of residence
through a process known as naturalization. Permanent
residents married to U.S. citizens can often apply
for naturalization after three years. However, they
need not naturalize, and may maintain lawful permanent
resident status indefinitely.
2.3
Consular Processing Overseas v. Adjustment of Status in the United States
Aliens who qualify for one of the
immigrant visa classifications can become permanent
residents in either of two ways. They can obtain
an immigrant visa overseas at a U.S. consular post
in their homeland, through a procedure known as
consular processing. Alternatively, they may be
able to process their applications in the United
States under a procedure known as adjustment of
status. Adjustment permits an alien who is otherwise
qualified to apply to the CIS for lawful residence
if a visa is immediately available. Adjustment,
which is discretionary, may be denied if the CIS
officer believes that the applicant entered as a
nonimmigrant with the preconceived intent of remaining
as an immigrant. The CIS official ruling on the
adjustment application must determine that the usual
requirements for approval of a visa petition are
met and also must make the determinations ordinarily
made by a consular officer (primarily, that the
alien is not disqualified under one of the grounds
of inadmissibility set forth in the INA.?
2.4
Entry v. Admission
Until 1996, aliens who "entered"
the United States, even illegally, were subject
to deportation grounds and procedures. Aliens who
had not entered the United States were subject to
exclusion grounds and procedures. Aliens in deportation
proceedings had greater constitutional and procedural
rights than aliens in exclusion proceedings. This
gave an advantage to those aliens who had crossed
the border illegally and successfully evaded inspection
rather than abide by the law and seek admission
at the border. To eliminate this advantage, in 1996
Congress replaced the term "entry" with
"admission" to mean the lawful entry of
an alien into the country after inspection. Admitted
aliens have greater rights than nonadmitted aliens
under U.S. immigration law.
2.5
Visa v. Status
Individuals unfamiliar with U.S. immigration
laws frequently confuse the concepts of ?visa? and
?status.?? A visa, issued at a consular post, indicates
that the alien has been screened for admissibility
to the United States and is found to be presumptively
eligible for admission in the classification they
have sought.? The applicant may have more than one
visa stamp but can use only one visa stamp to enter
the United States.? The visa may be for a single
visit or for multiple entries. It may be for a very
brief period of time or for up to ten years. The
visa is no guarantee of admission into the United
States and the immigration inspector may reject
an individual for admission despite the visa for
a wide variety of reasons, including prior immigration
violations, criminal conduct, lack of adequate financial
resources, and a perceived intention to remain in
the U.S. in violation of the purposes stated in
the visa.
Citizens of most countries in Western
Europe and some in Asia and South America, can enter
the Untied States without a visa under the Visa
Waiver program.
The immigration examiner, upon admitting
an alien, will staple a card into the passport.
This card is usually white (unless the individual
enters under the visa waiver program in which case
the card will be green) and is referred to as an
I-94 card. The immigration examiner will generally
indicate on the I-94 how long the alien is permitted
to remain in the U.S. This may be until a specific
date or in the case of students, for an unspecified
period known as ?Duration of Status? (or D/S.)?
The date? on the I-94 will control how long that
alien may remain in the United States, not the visa
stamp or expiration date on the underlying petition
for visa classification.
For example, the CIS may approve a
petition for three years in the H-1B nonimmigrant
worker classification. Because of reciprocity limits
in some countries, however, the consular officer
may stamp the H-1B visa in the passport as being
valid for only three months. When arriving in the
United States, however, the alien is supposed to
be admitted for the length of time stated on the
underlying petition for visa classification (in
this case, three years). Is the H-1B worker out
of status four months later, because the visa is
no longer valid? No. The alien is in valid immigration
status because he was admitted for three years and
the ending date on his I-94 card shows that.
An alien may be permitted to extend
his or her stay in the United States or change from
one visa category to another. An individual may,
for example enter as a tourist under a visa which
is valid for one month. That individual may be given
three months to remain in the U.S. by the immigration
officer who notes the end date on the I-94. Later,
the alien may be permitted to change his status
to an F-1 student and then remain after graduation
to work as an H-1B professional. Thus, it is possible
(though frankly highly unlikely) that an alien may
enter on a 30 day visa and remain legally in the
U.S. for more than ten years. During that ten-year
period, the alien?s status has changed, but his
visa has not. If he or she leaves the U.S., even
for a very brief period, she must return to the
U.S. consulate to obtain a new visa to return to
the United States. (Unless the alien has a valid
I-94 and the brief visit is to Canada or Mexico.)
3.0
Visa Categories
3.1
Nonimmigrant (Temporary) Visa Categories
An alien who wishes to come to the
United States as a nonimmigrant must fit into one
of numerous qualifying categories, designated by
the symbols "A" through "S," corresponding in general to the paragraphs in INA
section 101(a)(15), 8 U.S.C. section 1101(a)(15),
where they are defined. Most nonimmigrant categories
require that the alien intend the stay to be temporary
and that the alien has a residence in a foreign
country that s/he does not intend to abandon. Most
nonimmigrant categories have no limit on the number
of aliens who can enter the United States.
There are approximately 24 types of
nonimmigrant visas, each authorizing a temporary
stay in the United States. It is often possible
to extend your stay and/or change from one nonimmigrant
visa category to another.
A:
Government Officials
This class includes ambassadors,
public ministers, diplomats, consular officers and
other officials assigned to represent their country
to the United States. Spouses, children, servants,
attendants and their families are also included
in this class.
B-1:
Visitors for Business
This class includes foreign nationals
who intend to conduct business for a foreign employer.
A B-1 visitor may not displace an American worker,
or receive compensation from an American source.
The initial maximum period of admission is one year,
with renewals granted as necessary to complete the
purposes of the trip.
B-2:
Visitors for Pleasure
These are tourists and relatives
visiting family members in the United States. B-2
nonimmigrants are not permitted to work in the United
States. Persons coming primarily for the purpose
of studying are not properly classifiable as B-2
nonimmigrants. The initial period of admission is
usually six months, with a maximum total stay of
one year.
Visitors-
Visa Waiver Pilot Program
Nationals from a growing list
of countries, designated based upon a historically
low rate of non-immigrant visa refusals, are permitted
to enter the United States as visitors for business
or pleasure without first obtaining visas. Individuals
entering under this program are permitted to remain
in the United States for a maximum of 90 days, and
are generally barred from extending their stay or
changing status while in the United States.
C-1:
Transit Aliens
A transit alien is someone passing
through the United States on the way to a third
country. A maximum period of 29 days is permitted.
D:
Alien Crewmen
This class includes vessel or
aircraft workers required for normal operation of
the ship or plane. Crewmen are admitted to the United
States for up to 29 days.
E-1:
Treaty Traders
A treaty trader is someone who
enters the United States primarily to carry on trade
between the United States and a foreign country
that has signed a treaty of commerce and navigation
(or its equivalent) with the United States. The
treaty trader must carry a passport from the country
he or she is representing. The initial period of
admission is one year. Extensions of stay are possible.
E-2:
Treaty Investors
A treaty investor is also a national
of a foreign country with which the United States
has signed a treaty of commerce and navigation,
or its equivalent. However, a treaty investor is
someone directing and developing a business in which
he or she has invested a substantial amount of capital.
Top managers and executives of firms that have made
substantial investments in qualifying enterprises
may also qualify, as may "essential" employees.
A one year initial period of admission is permitted,
with extensions available in appropriate circumstances.
F:
Academic Students
An F-1 student is admitted to
pursue a full course of study at a school or institution
approved by the CIS to accept foreign students.
An F-1 student must maintain a home in a foreign
country to which he or she will return upon completion
of studies. This category also includes the student's
spouse and unmarried children under 21 years old
(known as "F-2"s).
With permission, F-1 students may work on-campus,
and off-campus after the first academic year part-time
during the semester and full-time during vacations,
and after graduation, for a period of up to one
year for "practical training." F-1 students
are admitted for "duration of status,"
which is defined as the length of time necessary
to complete a particular degree program, plus a
period of authorized practical training.
G:
Representatives to International Organization
This class includes persons accredited
by their governments to represent it to an international
organization such as the United Nations, World Bank,
or Red Cross.
H-1A:
Registered Nurses
Special rules govern institutions
petitioning for the admission of temporary foreign
nurses.
H-1B:
Temporary Professional Workers
H-1B's are persons coming to
the United States to engage in "specialty occupations."
This includes all professionals holding bachelor's
degrees and some persons who can show professionalism
based on a combination of schooling and appropriate
work experience. This class requires a prearranged
job, which may be temporary or permanent in nature,
in a professional field. The employer must also
file an "attestation"
with the U.S. Department of Labor that it will pay
the foreign national the higher of the prevailing
or actual
wage for the job, and provide adequate working
conditions, among other things. The initial period
of admission is three years, with a second three-year
period available. After remaining in the United
States for six years on an H-1B visa, a foreign
national is required to live abroad for one year
before re-entering the United States in H or L visa
status. The H-1B class is subject to an annual cap
of 65,000.
H-2A:
Temporary Agricultural Workers
An H-2A includes agricultural
workers coming to the United States to engage in
temporary or seasonal agricultural employment. This
class requires prearranged employment and a certification
from the U.S. Labor Department that U.S. workers
are unavailable for the job. In many cases, the
employer must also provide suitable housing. The
initial period of admission is authorized by the
Labor Department and CIS, and is not to exceed one
year. Extensions are available in limited circumstances
for a maximum period of three years.
?
H-2B: Temporary Non-Professional Workers
These classes include skilled
and unskilled workers who lack bachelor's degrees
who are coming to the United States temporarily
to perform jobs that are temporary or seasonal in
nature. A temporary labor certification is required
for this classification as well.
H-3:
Trainees
An H-3 trainee is a foreign national
coming temporarily to the United States to engage
in training not available in his or her home country,
who intends to use this training outside of the
United States. A trainee may not engage in productive
employment if a U.S. resident would be displaced.
H-4:
Spouses and Children
Spouses and children of H-1,
H-2 or H-3 nonimmigrants are generally admitted
for the duration of the status of the primary visa
holder. H-4's are not permitted to work in the United
States.
I:
Journalists
This category allows foreign
nationals to be admitted to the United States, upon
a basis of reciprocity, as a bona fide representative
of a foreign press, radio, film or other foreign
information media, for a period of one year. Spouses
and unmarried children under 21 are included in
this class.
J:
Exchange Aliens
This category includes foreign
nationals who will participate in a program approved
by the U.S. Information Agency. Participants include
students, scholars, trainees, teachers, professors,
research assistants, specialists, or leaders in
a field of specialized knowledge. Certain exchange
visitors are required by law to return to their
home country for a period of two years to impart
the knowledge they gained in the United States before
they may re-apply to enter the United States. Spouses
of J-1 nonimmigrants are issued J-2 visas and are
sometimes permitted to work in the United States.
K:
Fiances or Fiances of U.S. Citizens
This class covers those engaged
to be married to U.S. citizens who are coming to
the United States solely to conclude a valid marriage
with the petitioner within 90 days after entry,
and the minor children of such persons. The period
of admission is 90 days, and is not subject to extension.
It also covers non U.S. citizens married to U.S.
citizens and living abroad.
L:
Intra-company Transferees
The L-1 category is for persons
coming to the United States to work temporarily
for the U.S. branch, subsidiary or affiliate of
their foreign employer. To qualify for this category,
a person must have worked for the foreign affiliate
for at least one year immediately prior to transfer
to the United States. This class includes only executives,
managers and employers with "specialized knowledge"
who will fill a position in one of these categories
in the United States. The initial period of admission
is three years. Extensions are possible up to a
total of five years for specialized knowledge personnel
and seven years for managers or executives. The
spouse and children of L-1's may obtain derivative
status as L-2's for the duration of the principal
L-1 alien's status.
M:
Vocational Students
The M-1 category includes persons
coming to the United States to study at a vocational
or other non-academic school, other than a language
training program, that has been authorized by CIS
to allow foreign students to attend. M-1 students
are generally not permitted to work, but may obtain
a limited period of "practical training."
Spouses and minor children are classified in the
M-2 category.
N:
Relatives of United Nations Employees
This class includes certain parents
and children of foreign nationals who have worked
for international organizations in the United States.
O:
Aliens of Extraordinary Ability
The O-1 visa category is for
foreign nationals of "extraordinary ability"
in the sciences, arts, education, business and athletics,
as demonstrated by "sustained national or international
acclaim." This class requires prior consultation
with unions, management groups and other outside
sources. Assistants to the principal nonimmigrant
are admissible as O-2's. Spouses and minor children
of O-1 and O-2 nonimmigrants are admissible in the
O-3 class.
P:
Performing Athletes and Entertainers
This visa category includes three
subcategories of persons coming to perform in athletic
or entertainment events. The P-1 class includes
athletes performing as individuals, or groups and
entertainers performing as a group recognized at
an international level. The P-2 class includes athletes
and entertainers entering to perform under reciprocal
exchange programs. The P-3 class includes those
entering to perform in a culturally unique program.
The P-1 and P-3 classes require consultation with
U.S. unions to determine eligibility. Spouses and
minor children of P-1, P-2 and P-3's are admissible
as P-4's.
Q:
Cultural Exchange Visitors
This class includes persons participating
in designated international cultural exchange programs.
Sponsors of such programs must employ at least five
persons, including the foreign national. The maximum
admission period permitted is fifteen months.
R:
Religious Workers
This class includes ministers,
professional religious workers and other religious
workers entering the United States to work at an
affiliated U.S. entity, and who have worked for
the religious organization abroad for at least two
years before application. The initial period of
admission is three years.
S:
Aliens who assist with Law-Enforcement and Anti-Terrorism
Efforts
This class allows certain aliens
to be admitted to the United States to testify in
criminal cases. This category also authorizes the
admission of a limited number of alien informants.
The period of admission is limited to three years.
3.2
Immigrant (Permanent) Visa Categories
INA section 203, 8 U.S.C.
section 1153, sets forth three broad types of immigrant
visa categories: family-sponsored (section 203(a));
employment-based (section 203(b)); and diversity-based
(section 203(c)). There is no limit on the number
of immediate relatives of U.S. citizens who may
immigrate. Other immigrant visa categories, however,
have annual numerical limits.
3.3
Refugees/Asylum Seekers
The
terms "refugee" and "asylum seeker"
both refer to people who fear persecution. The legal
test is the same for both groups: they must show
that they have a well-founded fear of persecution
"on account of race, religion, nationality,
membership in a particular social group or political
opinion." An individual whose legitimate fears
of returning home are not based on one of the enumerated
grounds (such as a personal vendetta) cannot qualify
for asylum or refugee status. Refugees are aliens who appeal for
protection from persecution while still in another
country. They do not reach U.S. soil until they
have been processed, screened, and selected as refugees.
Asylum seekers make the same appeal but are physically
in the United States or at its border when they
seek protection.
Typically, those who gain admission
through the overseas refugee programs are located
in a refugee camp in a foreign country at the time
of selection. Sometimes, however, they are selected
and processed for refugee status while still within
their countries of origin. The President retains
the authority to decide yearly, after consultation
with Congress, the number of refugees to be selected
for admission from abroad, and from what areas worldwide.
Unlike beneficiaries of the overseas
refugee programs, applicants for asylum reach the
territorial United States on their own and only
then claim protection against involuntary return.
Applicants may enter legally or illegally and still
apply for asylum. No statutory ceiling exists on
how many people can be given asylum each year. Historically
15-30 percent of applicants have successfully received
asylum. In nearly all circumstances asylum applicants
remain in the United States while their claims are
reviewed, which can take years.
People selected as refugees or granted
asylum status are eligible to remain permanently
in the United States, and after completion of processing,
are granted lawful permanent resident status.
4.0
Admission Problems
4.1
Denial of Admission
Well before any Congress
enacted numerical limits on immigration to the United
States, it acted to exclude aliens on qualitative
grounds. Although there are many grounds of inadmissibility,
the number of aliens actually barred is relatively
small, and has decreased over time. Generally, the
grounds of inadmissibility apply equally to immigrants
and nonimmigrants.
The grounds of inadmissibility listed
in the INA are exclusive. They cannot be enlarged
by executive fiat or disregarded by executive officers
or the courts. An alien may not be held inadmissible
on a ground other than those given in INA section
212, 8 U.S.C. section 1182. The several grounds
of inadmissibility set forth in nine broad categories,
forming an imposing list of obstacles. The enumerated
grounds of inadmissibility are: health-related;
criminal and related; national security; the likelihood
of becoming a public charge (i.e., relying on public
benefits); lack of labor certification (or for foreign
doctors, lack of certain medical qualifications);
having undergone removal in the past five years;
failure to possess certain required documents; permanent
ineligibility for citizenship and draft evasion;
and a miscellaneous category that includes polygamists,
international child abductors, and guardians of
certain helpless aliens.
Waivers of some of the grounds of
inadmissibility are possible, but can be difficult
to obtain.
4.2
Expedited Removal
"Expedited removal"
is a procedure whereby an immigration inspector
may summarily determine that an alien is not admissible
to the United States. This is also sometimes called
"summary exclusion." If an immigration
officer determines that an arriving alien is inadmissible
because they arrived with either no immigration
documents or fraudulent documents, the officer may
order the alien removed from the United States.
In such a case, the alien does not have a right
to a hearing before an Immigration Judge. However,
if the alien indicates either a fear of persecution
or an intention to apply for asylum, the officer
must refer the alien for an interview by an asylum
officer.
5.0
Coming the United States
Under our double-check
admissions system, aliens wishing to enter the United
States ordinarily must first obtain an appropriate
visa at a U.S. consular post overseas. A visa is
not a guarantee of entry to the United States, however.
When an alien arrives at a port of entry, whether
at an airport, seaport, or land border, an CBP inspector
makes an independent determination whether the alien
should be admitted to the United States. This process
is known as "inspection." As discussed
above, a person is not lawfully admitted to the
United States until he/she has been inspected. A
person may be physically on U.S. soil, but not yet
?admitted.? A person undergoing secondary inspection
at an airport; a person in a car talking to an CBP
inspector at a border crossing post; passengers
on a ship in a U.S. harbor waiting to deboard: all
these are examples of people physically in the United
States who have not yet been inspected and admitted.
The visa application process differs
for nonimmigrants and immigrants. Nonimmigrants
must prove that they are qualified for the visa
category they are seeking. Upon arrival at the port
of entry, the nonimmigrant applicant must present
a passport and visa, if required, and may be asked
questions bearing on eligibility for admission.
If admitted, the nonimmigrant normally will be given
an arrival-departure record (CIS Form I-94), endorsed
to show the visa status and period of admission.
Form I-94, usually stapled to a passport page, is
to be turned in when leaving the United States.
The CIS keeps a counterpart as a control.
A nonimmigrant may apply to the CIS
to extend his or her stay in the United States or
change to another nonimmigrant status. A change
of status does not require a new visa if the alien
will not be leaving the United States. But neither
does it eliminate the need for a visa; if the alien
goes abroad and wishes readmission in the new status,
a visa in the new classification is required.
The immigrant admission process is
usually more elaborate. Nearly all potential immigrants
must be sponsored by a family member who is a U.S.
citizen or resident alien, or a U.S. employer. The
immigrant visa application is usually examined carefully
and questions are sometimes put relating to its
contents, but ultimately to the issue of admissibility.
Admission is recorded in the passport, and the alien
registration card is processed for later delivery
to the alien, who becomes a lawful permanent resident
when the inspection ends.
Technically, any alien who appears
inadmissible to the BCP inspector at the port of
entry is to be detained for a removal hearing. In
practice, an inspector facing a long line will detour
a questionable applicant to "secondary"
inspection for more intensive interrogation. If
the alien is not admitted there, the inspector may
order the alien removed from the United States under
the policy known as ?expedited removal? or? "defer"
inspection to a later time at the local CIS district
office. The alien is usually paroled into the United
States pending the deferred inspection. Alternatively,
the inspector may serve the alien with a notice
of removal hearing for determination of admissibility
by an immigration judge.
In some circumstances, the BCP may
permit an alien to withdraw his or her application
for admission and return home. In that case, the
alien?s visa is canceled and the issuing consulate
is advised of the circumstances. By withdrawing
an application for admission, an alien avoids the
legal restrictions placed on those who have undergone
removal procedures in the United States.
6.0
Permanent Residency
An immigrant or lawful
permanent resident (LPR") is someone admitted
to the United States permanently. To obtain immigrant
status, an applicant must meet both the substantive
and numerical requirements of the law. Substantively,
one must qualify as a specified close relative of
a U.S. citizen or another LPR, as an employee of
a sponsoring employer or prospective employer, or
as a ?diversity immigrant? under a visa "lottery"
program. Further, the potential immigrant must not
fall within any of the general categories of inadmissible
aliens specified in the law, such as criminality,
mental defect, Communist party affiliation, drug
trafficking, or terrorism.
In addition to substantive requirements, there are
also country-specific and worldwide statutory quota
limits imposed on most categories of family and
employment-based immigrant visas. These quota limitations
often can result in extended waiting periods before
immigrant status may be obtained.
Currently, about 670,00 immigrant visas are available
each year.
6.1.
Employment-Based Immigrants
There are five employment-based
immigrant visa categories. Three of these categories
have additional sub-categories. The employment-based
immigrant visa categories are as follows:
6.1.1Employment-Based
Category 1 (EB-1)
PRIORITY WORKERS
The first employment-based category
covers "priority workers." No labor certification
is required in this category. Roughly 40,000 visas
have been allocated annually to this group. This
category has three subcategories.
Category 1 - Sub-category A
Aliens with "extraordinary
ability" in arts, sciences, education, business
or athletics - To qualify in this sub-category,
the applicant must show sustained national or international
acclaim and achievements recognized through extensive
public documentation, and must be able to demonstrate
that his or her contribution would "substantially
benefit" the United States prospectively.
Category 1 - Sub-category B
Outstanding professors and researchers
- To qualify in this sub-category, the applicant
must establish international recognition or acclaim,
must have at least three years' experience in teaching
and research in the field, and must have an offer
of employment for a tenured or tenured-track teaching
position at a U.S. university or college, or a comparable
research position in private industry.
Category 1 - Sub-category C
Certain multinational executives
and managers - This sub-category provides an immigrant
visa for individuals who were employed as executives
or managers overseas during at least one year within
the three-year period immediately prior to transfer
into the United States, and who are transferred
to the United States to perform executive or managerial
duties. The overseas and U.S. employers must be
the same or affiliated entities. The definitions
of executive capacity and managerial capacity are
fairly broad, and include managing a function, not
just employees.
6.1.2
Employment-Based Category 2 (EB-2)
PROFESSIONALS AND ALIENS OF EXCEPTIONAL ABILITY
The second employment-based category
annually allows for 40,000 visas, plus any spilldown
of unused visas from Category EB-1. This category
has two sub-categories. The first is open to members
of the professions holding advanced degrees (e.g.
above that of baccalaureate) or their equivalent.
The second sub-category is available to those who,
because of their exceptional ability in the sciences,
arts or business, will substantially benefit the
national economy, cultural or educational interests,
or welfare of the United States. Under the second
sub-category, the applicant's exceptional ability
must be demonstrated by more than just a degree
or license, and must be substantially above that
normally encountered in the sciences, arts or business.
An applicant in this category generally must obtain
a labor certification for his position. However,
a specific job offer and labor certification may
not be necessary if an applicant can demonstrate
that such an exemption would be in the national
interest.
6.1.3
Employment-Based Category 3 (EB-3)
SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS
This category also allows for
40,000 visas annually, plus any spilldown of unused
visas from Categories EB-1 and EB-2. There are three
sub-categories in this category. An applicant in
each of these sub-categories usually must obtain
a labor certification for his or her position.
Category 3 - Sub-category A
Skilled workers - An alien qualifies
as a skilled worker if, at the time of petitioning
for classification, he or she is capable of performing
skilled labor requiring at least two years training
or experience, and is being sponsored for a permanent
position for which qualified workers are not available
in the United States.
Category 3 - Sub-category B
Professionals - This sub-category
encompasses aliens holding baccalaureate degrees
or their equivalent who are members of the professions.
Category 3 - Sub-category C
Other workers - This sub-category
is reserved for aliens capable of performing unskilled
labor, not of a temporary or seasonal nature, for
which qualified workers are not available in the
United States. A cap of 10,000 visas within the
overall 40,000 annual limit for Category EB-3 is
set for applicants seeking to qualify in this sub-category.
6.1.4
Employment-Based Category 4 (EB-4)
SPECIAL IMMIGRANTS
This category has 10,000 visas
available per year, and encompasses religious workers,
certain former United States government employees,
and certain foreign nationals working for international
organizations.
6.1.5
Employment-Based Category 5 (EB-5)
INVESTOR
This "immigrant investor"
category provides up to 10,000 visas annually to
applicants who invest a minimum of $1 million in
a new enterprise in the United States that will
create jobs for at least ten United States citizens
or permanent residents, other than immediate family
members of the investor. In certain targeted employment
areas, the investment may be reduced to $500,000.
6.2.
FAMILY-BASED IMMIGRANTS
There are two basic types of
familial relationships that serve as a basis to
apply for permanent resident status: immediate relatives
and family-sponsored preference immigrants. There
is a worldwide cap on family-sponsored immigrants
of 480,000 per year.
6.2.1
Immediate Relatives
Spouses and minor (i.e., under
21) unmarried children of United States citizens,
parents of United States citizens (provided the
citizen is over 21 years old), and certain spouses
of deceased United States citizens can qualify for
an immigrant visa as immediate relatives. There
are no numerical limitations on this category of
immigrant visas. While not immediate relatives,
the following two groups appear in the same section
of the statute because they also are not directly
subject to numerical limitations: an alien born
after the issuance to an alien of an immediate relative
visa, but before it is used to apply for admission
to the United States; and an alien born to a lawful
permanent resident during a "temporary visit"
abroad.
6.2.2
Family Sponsored Immigrants
Each family preference category
has its own annual allocation of visas under the
worldwide limit on family-based visas. The current
family-based preference categories and annual numerical
limits are:
Family First Preference (23,400
visas)
Unmarried sons and daughters of
United States citizens
Family Second Preference (114,000 visas)
(a) Spouses and unmarried children
of permanent resident aliens
(b) Unmarried adult sons and
daughters of permanent resident
aliens
Family Third Preference (23,400 visas)
Married sons and daughters of
United States citizens
Family Fourth Preference (65,000 visas)
Brothers and sisters of United
States citizens, if such citizen
is at least 21 years of age.
In addition, the spouse or child of the principal
alien is entitled to the same status and order of
consideration, if accompanying or following to join
the spouse or alien.
6.3
Diversity Immigrants
"Diversity immigration"
refers to a concept of allowing people a chance
to immigrate to the United States even if they lack
close relatives or a job offer.
The permanent diversity program began October 1,
1994. Under that program, 55,000 immigrant visas
are available each year to people from countries
that traditionally have not had much immigration
to the United States in the past. To qualify for
this program, applicants must have at least a high
school education or its equivalent, or have worked
two years in an occupation that requires two years
of training or experience.
The permanent diversity program is aimed at helping
potential immigrants from such regions as Africa
and Europe. Millions of people apply for the permanent
diversity visa program every year.
7.0
Working in the U.S.
Relevant
Nonimmigrant Work Visa Types
7.1
Business Visitor (B-1)
A business visitor is a foreign
national temporarily visiting the United States
to conduct business that benefits his or her foreign
employer. A B-1 may not receive remuneration from
a U.S. employer. Nor may a B-1 engage in productive
employment in the United States that U.S. workers
might perform. B-1 visas can be obtained by persons
coming the United States to consult, sell products,
attend conferences or business meetings, evaluate
investments, etc. A B-1 visa is obtained by application
at a U.S. consulate abroad. An applicant must demonstrate
an ability to support him or herself in the United
States, document the purpose of the trip and demonstrate
an intent to return to an unabandoned foreign residence.
Increasingly, the State Department is leery of use
of the B-1 category to circumvent other business
visa categories.
B-1 visas are usually "multiple entry"
for up to 10 years, meaning that a person may repeatedly
enter the U.S. in B-1 status during that time without
revisiting an embassy or consulate to get a new
visa. The duration of stay in B-1 status can be
anywhere from 3 weeks to 6 months upon initial entry.
Once in the United States, a B-1 business visa can
be extended through
the CIS for up to 18 months on one trip.
Nationals from 23 countries
can enter the United States to work or visit for
up to 90 days without having to obtain a B visa.
This program, called the visa waiver pilot program,
can be useful for short term business visits. Individuals
from such countries as France, Italy, Japan and
the United Kingdom can take advantage of this program.
7.2
Treaty Traders and Investors (E-1 & E-2)??
An E-1 treaty trader is someone
who enters the United States primarily to carry
on trade between the United States and a foreign
country that has signed a treaty of commerce and
navigation (or its equivalent) with the United States.
The treaty trader must carry a passport from the
country represented. The initial period of admission
is one year. Indefinite extensions of stay are possible.
An E-2 treaty investor
is also a national of a foreign country with which
the United States has signed a treaty of commerce
and navigation, or its equivalent. However, a treaty
investor is someone directing and developing a business
in which he or she has invested a substantial amount
of capital. Top managers and executives of firms
that have made substantial investments in qualifying
enterprises may also qualify, as may "essential"
employees.
7.3 NAFTA Workers (TN)
Mexican and Canadian nationals
may enter the United States on TN visas under the
North American Free Trade Agreement. For Canadians,
TNs are much simpler to process than for Mexicans.
For Canadians, an application is made at a border
point of entry by demonstrating Canadian citizenship,
a job offer from a U.S. employer for a position
listed on the TN list of qualifying positions (mostly
technical positions), proof of an unrelinquished
foreign domicile in Canada, and the application
fee.
The TN visa is valid for 12 months and may be renewed
indefinitely by making a new application at a border
point of entry. Because there is no application
form and no clear adjudicatory standards followed
by border inspectors, TN is a highly discretionary
category, and success in gaining TN status is highly
uncertain. The management consultant category on
the TN list, because it is the only non-technical
title, is the most difficult to qualify for. For
Mexicans, the TN visa requires compliance with regular
H-1B procedures, outlined below.
7.4 Professional Worker (H-1B)
H-1B classification is for a
foreign professional worker coming to the United
States for an initial period of up to three years
to work in a professional position. The foreign
national must have a bachelor's degree or its equivalent,
and the position must be a professional one. In
addition, the H-1B process requires an employer
to file an attestation with the U.S. Department
of Labor (DOL) pledging to do four things: (1) pay
the H-1B worker the higher of the prevailing wage
or actual wage at the workplace;
(2) give notice to U.S. workers similarly employed;
(3) promise that no labor unrest or strike exists
in the position; and (4) promise to pay the foreign
national's return transportation home should he
or she be fired within the validity period of the
visa.
The DOL is increasingly
involved in H-1B petitions. The DOL conducts random
investigations of H-1B employers, and assesses significant
penalties and sanctions against employers who do
not comply with the regulations. DOL regulations
also make employers who move H-1B workers to multiple
work sites responsible for ongoing reporting to
the DOL regarding the wage and notice requirements
described above for each work site.
An H-1B visa can be extended
once for a second three year period and for additional
periods of one year only if a labor certification
application has been pending for more than one year.
Compared to visa options for unskilled workers,
the H-1B is the most advantageous category to use
where none of the other categories described here
are possible.
7.4 Seasonal Worker (H-2)
H-2 status is
for foreign nationals who seek to enter the United
States to perform temporary or seasonal jobs which
may be either skilled or unskilled. Typically, these
workers include migrant workers, restaurant and
janitorial help for resort communities, landscapers
for landscape companies and pool installers, and
engineers and other professionals who are needed
to assist manufacturers with short term contracts.
This nonimmigrant category is further subdivided
into Agricultural Workers (H-2A) and Non-Agricultural
workers (H-2B). In order to qualify for H-2 status,
the employer must first obtain a temporary labor
certification from the U.S. Department of Labor.
The certification demonstrates that the employer
has first tried to fill the position with a qualified
U.S. worker under the wages and working conditions
prevailing in that region of the country.
7.5 Intracompany Transferee (L-1)
An L-1 visa holder is a foreign
national who has worked abroad for at least one
out of the three years immediately prior to entry
to the United States as a manager, executive, or
specialized knowledge employee of a foreign affiliate
of a U.S. company and who will be transferred to
the U.S. affiliate to work in a similar position.
L-1 managers also include function managers,
meaning people who oversee production or a function
instead of personnel. The specialized knowledge
subcategory aims to facilitate transfer of high
level technical staff. The L-1 category, if applicable,
is the best category to use as it does not involve
DOL at all. Further, blanket L-1 authorization is
an attractive option for big companies transferring
managers, executives or
specialized knowledge personnel. A blanket L visa
petition enables a company to file once with the
CIS, attaching a schedule of all affiliates. Following
approval, foreign personnel may simply appear at
an embassy without prior application or appointment,
bearing a copy of the L-1 blanket approval and a
job letter and obtain an L-1 visa.
8.0
Citizenship
8.1
Citizenship at Birth
Generally, anyone
who is born in the United States is automatically
a U.S. citizen. The citizenship of children born
overseas is often more difficult to determine.?
Generally, if one of the parents is a U.S. citizen
who has lived in the United States for varying lengths
of time after the age of 14, the child will be a
U.S. citizen. Children born with dual citizenship
who wish to retain both citizenships should use
multiple passports to enter each country as a citizen
and not use a visa whenever possible. This establishes
a record of citizenship that will be useful if citizenship
questions are raised.
8.2
Naturalization
p class="body">Naturalization is
the process by which legal permanent residents of
the United States become U.S. citizens. Generally,
an applicant for naturalization establishes eligibility
by showing that he or she: (1) is over 18 years
old; (2) has been a legal permanent resident of
the U.S. for the past five years (or three years
if married to a U.S. citizen); (3) has resided in
the state where he or she is filing a naturalization
petition for three months prior to the application;
(4) does not advocate or support the overthrow of
the U.S. government; (5) can speak, read and write
English; and (6) is of good moral character. Derivative
citizenship can be obtained when a petition is filed
on behalf of a child under 18 years of age by a
parent who is a U.S. citizen. Expedited procedures
are available to naturalizing Philippine nationals
who served with the U.S. armed forces during World
War II, and for spouses of U.S. citizens stationed
overseas.
8.2.1 Naturalization Procedures
The basic procedure for naturalization
requires an applicant to:
- file form N-400 and supporting documents,
fingerprint chart, two photos and a $260.00 filing
fee (plus $50.00 fingerprint fee) with the CIS
office that has jurisdiction over the applicant's
residence;
- attend a formal examination at CIS
with or without an attorney where the alien will
be interviewed, under oath, regarding information
conveyed on the N-400, and examined on English
literacy and American history; and attend a court
or CIS ceremony (if CIS determines the applicant
is eligible for citizenship and so recommends)
for the official swearing-in and issuance of a
certificate of naturalization.
8.2.2
Substantive Requirements: Details and Exceptions
- English language and American history
requirement: An applicant must demonstrate literacy
in English. However, an applicant who is over
50 years old and had been legal permanent residents
of 20 years or more or over 55 who has been a
legal permanent resident for at least 15 years
is not subject to the English literacy requirement
Persons eligible for the 50/20 or 55/15 waivers
are still required to pass the U.S. government
and history exam, but may be questioned in their
native language through an interpreter.
- Residency requirements: An applicant
must reside in the state or CIS district where
the petition is filed for at least three months
before filing. The applicant must also be physically
present in the United States for at least half
the time of the residency requirement, e.g., at
least 30 months and one day for those individuals
subject to the five-year residency requirement.
During this time, the applicant must maintain
status as a legal permanent resident. Additionally,
the applicant may not be continually absent from
the U.S. for more than one year during the time
counted toward the physical presence requirement.
- Good Moral Character:
An applicant is deemed not to have good
moral character if he or she was at any time during
the past five years: (1) an habitual drunkard;
(2) a polygamist, person associated with prostitution,
narcotics or illegal entry of aliens; (3) convicted
of a crime or moral turpitude or of two or more
non-political offenses for which the aggregate
sentence imposed was five years or more; (4) a
gambler; (5) committed immigration fraud; or (6)
who at any time was convicted of crime of murder
or an aggravated felony. The CIS' inquiry into
an applicant's good moral character during the
examination may also cover other topics, such
as homosexuality, adultery and non-support of
dependents and is likely to include inquiry into
the applicant's past income tax payments.
8.3
The Oath/Dual Nationality
All naturalization
applicants must take an oath of allegiance to the
United States.. The oath states in part that "I
absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty, of whom or which I have heretofore
been a subject or citizen." Despite that language,
becoming a naturalized U.S. citizen does not necessarily
mean that the person must give up his or her prior
citizenship. If another country decides to continue
to treat one of its citizens as still a citizen,
despite his or her acquisition of U.S. citizenship,
the United States must and does respect that decision.
Thus, many naturalized U.S. citizens are "dual"
nationals, meaning that they are citizens of more
than one country.
The benefits of citizenship achieved
by naturalization are several: ability to run for
most public office positions, the ability to vote,
and entitlement to public benefits.
8.4
Loss of Citizenship
Certain acts taken
by newly naturalized citizens may result in a loss
of U.S. citizenship. Membership or affiliation in
a subversive, communist or anarchist organization
within five years of naturalization establishes
a lost of allegiance to the United States and can
result in a loss of citizenship.
U.S. citizenship is not
threatened by routine acts of allegiance to foreign
governments such as oaths, employment, naturalization
or renewing a foreign passport. Such acts must be
performed voluntarily and with the intent to relinquish
U.S. citizenship before a loss of U.S. citizenship
may occur.
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