A brief overview
of immigration law
A foreign national must usually obtain a visa to enter the United States. Visas are issued by a U.S. Consulate run by the U.S. Department of State. There are certain “visa waiver” countries, however, where nationals are not required to obtain a visa from the State Department for temporary visits.
Upon arrival at a port-of-entry in the United States, Customs and Border Protection (CBP) controls the entry process. Even if a foreign national has a valid visa, a CBP Officer has the right to deny entry into the U.S. for various reasons.
Issuance of a visa from the U.S. Department of State or visa waiver nationality is not a guarantee that the CBP will permit the entry. If the officer does permit the entry, an I-94 card will be issued with a date upon which the foreign national will have to depart from the U.S. Students with F-1 visas and holders of the J-1 visa do not generally receive an expiration date and instead are granted “D/S” (duration of status, meaning the expiration date is controlled by the date of the end of the program).
Foreign Nationals lawfully entering the U.S. are classified as either temporary visa holders (“non-immigrants”) or immigrants (also referred to as lawful permanent resident status). A non-immigrant is a foreign visitor who seeks to visit, work or live in the U.S. for a fixed amount of time, but who still intends to return to his home country. An immigrant is someone who comes to the U.S. with the purpose of making the U.S. his permanent home. Visitors can get temporary visas for tourism or business, including temporary employment. Certain relatives or potential relatives (fiancees) of U.S. citizens or lawful permanent residents may be eligible for temporary visas, as are students. Many temporary visa holders can obtain an extension or change of status to another visa type once they are within the U.S.
A foreign national who is approved to immigrate to the U.S. is called a Lawful Permanent Resident (LPR). A Lawful Permanent Resident can work in the U.S. and has many of the rights of a U.S. citizen. There are four general ways for an immigrant to the United States to obtain Lawful Permanent Resident status, commonly called the “green card.”
• Family-based sponsorship
• Employment-based sponsorship
• Department of State “Green Card Lottery”
• Grant of asylum
The U.S. immigration laws provide a yearly quota for all immigrant visa categories, generally creating a waiting list for certain relatives of family-based and employment-based visas. The State Department controls these visas and publishes a monthly visa bulletin indicating the progress of the waiting lists based on an assigned "priority date" and country of nationality.
Family-based sponsorship for immigrant visas
People who are U.S. citizens can sponsor their parents, spouses and children under 21 years of age for an immigrant visa. These immediate relatives are not subject to a quota or waiting list. Fiancee visas can also be arranged for prospective spouses, subject to certain conditions.
People who are U.S. citizens can sponsor adult sons/daughters and brothers/sisters, but these are subject to a quota/waiting list, and their priority date will depend on whether or not they are married (for sons/daughters) and country of nationality. The spouses and children of adult sons/daughters and brothers/sisters and are called derivative beneficiaries and different issues may arise with them.
Lawful permanent residents can sponsor spouses, children and unmarried sons/daughters. These relatives may be subject to a quota and waiting list, depending on the country of nationality. Foreign nationals from Mexico, China, India and the Philippines are subject to separate quotas (meaning a waiting list) for all the non-immediate relative family-based categories.
All family-based sponsorship requires the sponsor to meet federal poverty guidelines for such sponsorship in order to prove that the family has enough income or resources to support itself. A chart is published based on family size and required income. The sponsor will be required to provide income tax returns for the past three years and recent proof of salary/income. If the sponsor does not meet the guidelines, the foreign national will need to obtain a joint or co-sponsor. Sometimes the foreign national can be a co-sponsor, depending on the local CIS office and officer.
This category covers both temporary and “immigrant” employer sponsorship. There are numerous employment-based categories and in order to ascertain which type of visa is appropriate, the goals of the employer-sponsor must be evaluated.
Several of the temporary employment-based categories are subject to an annual quota, based on the U.S. government fiscal year, commencing on Oct. 1 of each year. Foreign nationals from Mexico, China, India and the Philippines are subject to separate quotas (meaning a waiting list) for all the immigrant employment-based categories (i.e., permanent residence). This means that an adjustment of status application cannot be filed until the priority date of the I-140 or I-360 becomes current.
Our firm has had success in getting first-preference employment based visas for the following fields:
• Electrical engineering
• Soil scientist
• Computer engineering
• Mathematical education
Some individuals can self-sponsor themselves for permanent residence if it serves the national interest of the United States. This category is called a National Interest Waiver. Our firm has successfully obtained permanent residence through National Interest Waivers for people in fields such as:
• Quantum engineering
• Molecular neuroscience
• Surface science
• Civil structural engineering
• Molecular biologist
• Cancer research specialists
• Medical profession scientists
• DOS annual Green Card Lottery
Every year the U.S. Department of State announces a program that permits foreign nationals living abroad and those within the U.S. to register for what is called the diversity visa program, which is more commonly known as the “green card lottery.” One must be at least 18 years of age to participate. Our law firm can file separate applications for you and your spouse.
The regular grounds of inadmissibility and removal apply to those living abroad and within the U.S. For those living in the U.S. but who are out of status are eligible for adjustment of status through the lottery only if they had a business entity or relative file a labor certification application and/or immigrant visa petition on or before April 30, 2001, and can present proof that such an application or petition was timely filed.
Since World War II, the United States has adopted a policy of offering asylum to foreign nationals who can demonstrate a well-founded fear of persecution in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. At the time of application for asylum, the foreign national can also apply for and receive employment authorization.
Foreign nationals who have been granted asylum can file for adjustment of status one year from the date of the grant. There is a quota for asylees, meaning that there is currently a waiting list. Because of the waiting list, it takes approximately 10 years to process an adjustment of status application for an asylee.