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-The Internet Immigration Law Center
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US Immigration policy and law is governed by the Immigration and Nationality Act (INA). Years of Congressional effort resulted in comprehensive revisions to the INA in the Immigration Reform and Control Act of 1986 and in the Immigration Act of 1990 (INA 90). Subsequently, Congress further changed (and complicated) immigration policy in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MITINA)
US Immigration laws are complex, confusing and often obtuse. Regulations are constantly being made, changed and applied differently. We will here (ImmLaw Center) present an overview of US Immigration law. Keep in mind that entire chapters or even books are written to cover whatis here briefly presented as a thumnail sketch. The reader is cautioned to be extremely careful in acting on any information presented. Immigration matters can be consequential to the effected individual. Before acting, seriously consider getting professional advise or help about your individual circumstance, or at the least obtain more information and study your immigration situation carefully. [ See disclaimer ]
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All Persons in the US have an immigration status. These are:
- US Citizen - US citizenship is usually gained by persons at birth in the US. It also may be gained by birth to US citizen parents or through naturalization.
- Permanent Resident - A permanent resident can be called an "Immigrant". Permanent residency gives an alien the right to reside permanently in the US while maintaining his/her own non-US citizenship. Generally permanent residents are the only ones eligable for naturalization.
- Temporary Resident - Generally temporary residents are persons who have allied for legalization or amnesty. A temporary resident eventually becomes a permanent resident or looses resident status.
- Nonimmigrant - An alien who comes to the US temporarily for some purpose such as study, business, tourism. Normally a nonimmigrant leaves the US at a determined time although it is possible to change status while in the US.
- Asylee - A person who has been granted asylum but has not yet been granted permanent residency.
- Temporary Protected Status - Persons from designated countries who have been granted the right to remain and work in the US for a specified time. This is generally due to adverse and extraordinary circumstances in their home country.
- Out of Status - Usually a nonimmigrant who entered the US with legal status but who has violated the terms of admission (e.g. overstay).
- Undocumented Alien - Person who has entered the US illegally (without valid entry status or documentation).
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A. Immigrant Visa Categories
1. Employment Based Immigrant Visas
This category includes all aliens who either wish to come to the U.S. for permanent employment (with the right to permanent residence-"Green Card") or who wish to change their temporary nonimmigrant status to a permanent worker status.[ More ] [ Return ]
2. Family Related Immigration Visas
General
Visa allocation shows that the US places a high priority on family reunification in US immigration laws. 72% of all visas allocated are reserved for family based immigration. From fiscal years 1992-1994 family sponsored immigration visas will be limited to 520,000/year of which 465,000 are for immediate relatives and family preference categories and 55,000 transition numbers for spouses and children of newly legalized aliens.
Beginning in fiscal year 1995 the overall cap will be 480,000. These numbers can be increase by unused employment based preferences of the proceeding year. There is an overall limit for family sponsored visas but immediate relatives will be admissible in unlimited numbers (They wii take numbers from the family preference numbers and others if they exceed their allotment according to set formulas).
There is also a per country cap on family immigration visas calculated as percentages of the total available. This per country cap is set at 7% per foreign state and 2% per dependent territory. The numerical allotment system is quite complex and variable. The Monthly Visa Bulletin gives more detailed information as to the result of these calculations
Immediate Relatives
- Spouses of US Citizens
- Minor Children (Under 21) of US citizens
- Parents of US Citizens over 21
- Spouses of deceased US Citizens (married at least 2 yrs at death)
Family Related Preference Immigrants Classifications
- 1st Preference - Adult (over 21) unmarried children of lawful permanent residents
- 2nd Preference - Spouses and minor children (or unmarried sons or daughters) of lawful permanent residents
- 3rd Preference - Married children of US citizens
- 4th Preference - Brothers & sisters of adult US citizens
- Derivative Beneficiaries - Spouse or child of principal alien under family sponsored preferences.
B. Nonimmigrant Visa Categories
This category includes all who wish to travel to the U.S as a temporary (nonimmigrant) person. This category includes:
- 1. General Categories(B, K, C, D)
- Visitor for Business B-1
- Visitor for Pleasure:Tourists B-2
- Fiancee K-1
- Transit C-1
- Crewmen D-Visa
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- 2. Student and Exchange Categories (F, J, M, O)
- Student F-1 (Student spouse F-2)
- Exchange Visitor J-1
- Cultural Exchange Visitors Q-Visa
- Special Education Exchange Visitors
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- 3. Employment Based Nonimmigrant Visas (E, H, L, O, P, R,TN)
- O & P Outstanding Artists, entertainers, Scientists, and Certain Business Professionals
- H Temporary Workers
- H-1A - Professional registered Nurses
- H-1B - Workers in specialty occupations (mostly professional)
- H-2A - Temporary agricultural workers in short supply
- H-2B - Temporary non-agricultural workers in short supply
- H-3 - Trainees
- H-4 - Spouses and children accompanying principal H worker
- L-1 Intracompany Transferees
- R Religious Workers
- E Treaty Traders and Investors.
- TN Canadian Professionals
[ More ]
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The Labor Certification Process
In General Aliens who do not fit into Family based immigration categories require labor certification (LC) to be able to immigrate to the US. A labor certification is an approval by the Department of Labor (DOL) for an offer of employment in the US to a named alien. The Alien may be either physically in the US at the time or in another country. Once the employer has received an approved labor certification from the DOL then the Alien may then file an immigrant petition with the U.S. Immigration and Naturalization Service (USINS). The immigrant petition leads to permanent resident status for the Alien. [ More ] [ Return ]
Quotas
Certain categories of visas are subject to yearly numerical limitations (Quotas). When more approved applications for visas are received waiting lists develop. Approved applications for each type of visa are place in line by date and are approved when an opening comes up. The Department of State issues a Monthly Bulletin listing the dates that each category is up to. Some visa categories tend to stay current (C), that is, with no waiting list. Some have cut-off dates which means that only applicants with dates (visa numbers) prior to that date can get a visa for that month. Some categories for some countries may be unavailable (U).
Currently the Quota system separates immigrant visas into family and employment based categories. Certain immigrants are not subject to numerical limitations. Additionally there are visas per countries limits set up along with the category limitations. [ More ] [ Return ]
Asylum
The ability to immigrate to the US on the basis of an asylum request is cherished in the US. In a way, the Declaration of Independence was a claim of asylum. The US was first populated in significant part by political and religious refugees, and as a result the people of the US have always been especially sympathetic to asylum requests. A large body of immigration laws and procedures deals with this issue.
According to the Immigration and Naturalization Act (INA): The Attorney General (AG) shall establish a procedure for an alien physically present in the US or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the AG if the AG determines that such alien is a "refugee" within the meaning of the law.
A "refugee" is defined as "any person who is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution (or a well-founded fear of persecution) on account of race, religion, nationality, membership in a particular social group, or political opinion."
From these two statements has grown a very sizable body of law, regulations and procedures as well as case law. [ More ]
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Exclusion & Deportation
In US immigration law an alien, in order to enter legally into the US, must not belong to one of the "grounds of exclusion" unless the ground of exclusion is waivable and he/she actually obtains a waiver, General Grounds for exclusion are:
- Medical (communicable diseases, addictions, mental disorders, etc.)
- Criminal (persons convicted of certain crimes, or number of convictions, drug traffickers, etc.)
- Security (terrorists, totalitarians, etc.)
- Public Charge (persons likely to become public charges in the US)
- Labor (Person's seeking work without approved labor certification)
- Illegal Entrants and Immigration Violators
- Documentation Requirements (Persons not in possession of valid immigration documents)
- Ineligible for Citizenship (Person's permanently ineligible for citizenship or Draft Evaders)
- Miscellaneous (Polygamists, guardians of excluded child, child abductors)
- Deleted Provisions (no longer apply: paupers, illiterates)
- [ More ](under construction) [ Return ]
Citizenship & Naturalization
Once an alien has a valid permanent residence status in the US he/she is eligable for naturalization (gaining of US citizenship). There are many requirements that must be met in this process including: residency, character, US history knowledge, good moral character, spoken English ability etc. [ More ] (under construction) [ Return ]
Employer Sanctions and Employment Documentation
The Immigration Reform and Control Act of 1986 made employers liable for the knowing employment of aliens not authorized to work in the US by the USINS. Employers are now required to maintain (but not file) forms (I-9) showing all employees are authorized to work in the US. Disregard of this law and even errors in maintaining information can result in substantial civil penalties for the employer. [ More ] [ Return ] (under construction)
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Disclaimer: US immigration laws are very complex and have too many exceptions for this information service to be exhaustive. These information files are descriptions of the immigration processes intended to give an overview of the described processes. The information contained herein is not intended to create an attorney/client relationship or be construed as legal advise. Immigration law and procedures are constantly changing. And though we will try to keep these files up-to-date, we cannot guarantee their completeness or accuracy. Any reliance on information contained within the entire ImmLaw, Internet Immigration Law Center domain is taken at your own risk.
Please send reactions, comments, and advice to:
Mimi Schooley schooley@new-orleans.neosoft.com
This Page Last Updated:Thu, Dec 29, 1994