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Guide to Immigration Law
There are many ways for a foreigner to come to the US, either temporarily, or permanently and each has different requirements, benefits and drawbacks. Below you will find an overview of different visas, as well as options to become a citizen of the United States.
Green Card: Immigrant Visas
An immigrant visa, or immigration visa, is given to immigrants who want to live permanently in the United States, which is the first stem to for immigration to America. In order to get an alien registration receipt card, an immigrant applies for an immigrant visa number. An Alien Registration Receipt Card (a.k.a. "green card") allows a person to stay and to work in the United States permanently. A green card was initially named in the 1940's for the color of the card a person received which allowed that person to work in the United States. The card has changed colors over the years, and today, there is no longer an actual "green card" but the name remains. Immigrants, who wish for immigrations, can wait for many years to get an immigrant visa number as there are bottlenecks in INS forms processing, and immigration and naturalization checks.
An immigrant with a green card is considered to have permanent residence status and does have some protection against removal, but there are criminal convictions which can result in removal for a green card holder.
A person who has a green card may leave the United States for work or vacation, but may not be allowed back if he is out of the United States for a long period of time. A person with permanent resident status should apply for a reentry permit if he plans to leave the United States for any reason to ensure his admittance upon his return to the United States.
Anyone with permanent residence status who hopes to apply for citizenship must meet the residency requirement. Only time actually in the United States counts toward the requirement, even though a person might have permanent residence status for a longer period of time. It is possible to be granted U.S. citizenship based on the nationality of your parents or children. This path to citizenship is discussed further in this guide.
Non-immigrant Visas
A temporary visa allows a non-immigrant to enter and stay in the United States for a designated period of time. Visas are given to people who want to come to the United States for different reasons, including: to play sports, work, go to school, get married, or vacation. Most visas have a time limit of 6 months, although the time may be shortened if an immigration official determines a person should not be allowed to stay for 6 months. Since the attack on September 11, 2001, immigration officials scrutinize visa requests more thoroughly than they had in the past. After an immigrant visa application is approved, an immigration form visa can be revoked at any time by immigration officials for any reason. A visa affords the least amount of protection for an immigrant.
To apply for a non-immigrant visa, you can go to a U.S. consulate or embassy which is convenient for you (it does not have to be in your home country). After you apply, you will be interviewed by a consular officer who will review your documents and ask questions regarding your background and your intentions in traveling to the United States. Once you are approved by the interviewing consulate officer, your documents are processed through administration.
Application Process Time
Most administrative processing can be completed within 60 days, but some applications may take longer depending on your background (many addresses, name changes, criminal record). Applicants should wait at least 90 days after the date of the interview (or submission of additional documents) before inquiring as to the status of their application.
The wait time for a temporary visa will vary depending on the consular office. You can check wait times for each city at the USCIS website. Some consular offices can interview you the same you apply and some will have to schedule an appointment for you which may be weeks after you apply.
A temporary visa does not guarantee you will be allowed to enter the United States. Custom and Border Protection officers have the authority to deny entry to any foreign national regardless of immigrant status or visa approval. It is recommended that you follow all rules with regard to luggage and restricted items and always be respectful and cooperative at ports of entry.
If your circumstances change and you would like to stay in the United States beyond the expiration date of your visa, you have to file for an extension. It is best to file 45 days before the expiration date because it may take some time for the application process to be completed. If your extension is denied, or not answered before the expiration date, it is best to return to your home country rather than stay beyond your expiration date.
When Circumstances Change
Sometimes circumstances change and non-immigrants choose to change their status from non-immigrant to immigrant. Non-immigrants must be careful not to come to the United States and request an adjustment of status too soon after arriving because immigration officials will suspect the foreigner lied about his true intent when he applied for the non-immigrant visa. Such a finding could result in removal from the United States and a finding of inadmissibility in the future.
If your circumstances change but you still want to only stay in the U.S. on a temporary basis, you can change your visa status. Most visa categories can be changed, but there are some which cannot be changed. For example, if you are in the U.S. as a vocational student, you cannot apply for an academic student visa or for a temporary worker visa if the training you received is what qualified you for the job.
If a non-immigrant who is in the U.S. working for an employer and changes jobs, the new employer must file a Form I-129 petition for a non-immigrant worker before your visa expires. If you have a spouse and children in the U.S. with you when you change employers, they will have to file a Form I-539 at the same time your employer files the I-129. They will be processed together if they are submitted together.
If your circumstances change and you want to stay in the U.S. permanently, you can file a Form I-485. If it is approved, you will be allowed to live and work in the United States permanently. If it is not approved, you will have to leave the United States and apply for an immigrant visa from outside the U.S.
Some categories of non-immigrant visa holders have to meet certain requirements before they can request an immigrant visa. Exchange visitors have to meet a foreign residence requirement which means they must leave the United States for a minimum of two years before they can come apply to come back to the United States.
United States Citizenship
United States citizens have more rights than any other immigrant status. Once an immigrant is a citizen, it is extremely difficult for that immigrant to lose citizenship status. There are certain criminal convictions which would result in loss of citizenship, but only in extreme cases. In order to become a United States citizen, certain residence requirements must be met and in most cases, the immigrant must pass a citizenship test and then participate in a citizenship hearing. The citizenship test is a test which allows the permanent resident an opportunity to show what s/he knows about United States history, laws, and the rights and responsibilities of U.S. citizens.
Inadmissibility
As mentioned in the overview, some people are not allowed to enter or stay in the United States and are considered "inadmissible". Certain crimes and conditions make people inadmissible. For many of the conditions, there may be an opportunity for an immigrant to file a waiver for review by immigrations officials, which does not guarantee admittance, but offers a chance for inadmissible immigrants. The crimes or conditions which could make an immigrant inadmissible are outlined below:
The United States does not want to allow people into the country who threaten the health and welfare of United States citizens, therefore; people with certain crimes and health conditions are not allowed to enter or stay in the United States. The following are some of the circumstances under which immigrants will be found to be inadmissible:
- Certain communicable diseases (i.e. tuberculosis, HIV)
- Physical or mental illness which threatens the health and welfare of others
- A person who has not had required vaccinations
- Drug addicts or drug traffickers
- Persons who have been convicted of crimes involving moral turpitude (defined as conduct which falls below the common standards of the community for justice, fairness and morality--crimes which are inherently evil like rape or robbery.)
A finding of inadmissibility is not absolute. In most circumstances, an experienced immigration attorney can help an immigrant argue for a waiver to be granted which would allow an immigrant to enter or stay in the United States despite the inadmissibility factors.
No Waiver Option Available
While there are waivers available in some circumstances, the following is a list of some of the circumstances under which there is no option for a waiver (for a more thorough list, please consult an immigration attorney).
- Drug offenders and traffickers
- Drug abusers and addicts
- Spies or violators of export technology transfer laws
- Persons intending to overthrow the United States Government
- Persons intending to engage in unlawful activity
- Terrorist or members of terrorist organizations
- Persons whose presence in the United States would have an adverse effect on United States foreign policy
- Nazis
- Persons likely to need public assistance due to lack of financial resources
- Persons who break the conditions of their temporary visa
- Persons without required passports or documents