Established in 1980, with Over 30 Years of PROVEN Success in All Phases of U.S. Immigration law.

IMMIGRATION BASICS

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 Aliensz

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:

6.1.1 Employment-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

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

  1. 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.
  2. 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.
  3. 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.