Brief Overview of US 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
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 ("nonimmigrants") 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 US 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."
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
- Employment-based sponsorship
- Department of State "Green Card Lottery"
- Grant of asylum
Sponsorship for Immigrant Visas
People who are
U.S. citizens can sponsor their parents, spouses and children
under twenty one 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
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 October 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:
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:
- Electrical Engineering
- Soil Scientist
- Computer Engineering
- Mathematical Education
Annual Green Card Lottery
- Quantum Engineering
- Molecular Neuroscience
- Surface Science
- Civil Structural Engineering
- Molecular Biologist
- Cancer Research Specialists
- Medical Profession Scientists
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.
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 4/30/01 and can present proof that such an application
or petition was timely filed.
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.
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 ten years to process
an adjustment of status application for an asylee.
call us at 919-788-9225 to discuss
the ways our law firm may be able to help you and your loved ones
immigrate to the United States.
||Important notice: This site contains an overview of current immigration law. But laws can and do change rapidly. Every situation is unique and it may not be possible for you to fully understand your options without competent legal assistance. Please call us with confidence; we have the experience to help you at all levels of the immigration process, including deportation or removal proceedings.
ARANEDA & STROUD IMMIGRATION LAW GROUP
Attorney Jorgelina E. Araneda also defends Federal criminal cases in the Eastern and Middle Districts of North Carolina.