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Guide to Immigration Law
In an effort to increase US productivity and diversity of workers, special immigrant visas are actually employment-based visas and encompass categories of workers not covered by other employment-based visas. There are also some categories of special immigrants which the government has added at different times to cover narrow situations and those categories apply to so few people that they are not covered in this guide. Only 10,000 special immigrant visas are available each fiscal year. Non-clergy religious workers cannot receive more than half of those visas.
The following are some of the people who would qualify for a special immigrant visa:
- Foreign national children under age 21 who the court has found to be in need of state protection or services
- The children under 21 must be unmarried
- The court must either declare the child is dependent on the court or in need of foster care, or other care from a state agency
- The court may determine it is in the best interest of the child to remain in the United States
- Workers for recognized religious organizations
- Workers for religious organizations may qualify for an SD visa which is an immigrant visa leading to permanent resident status.
- Workers must have been a member of the church for at least the past two years
- Workers for religious organizations who want to visit the United States as a non-immigrant would apply for an R visa
- Religious workers include ministers and people called to religious vocation which can be evidenced by the demonstration of a lifelong commitment, such as taking of vows. Examples include nuns, monks, and religious brothers and sisters
- Foreign medical graduates who came to the United States before January 10, 1978
The application process to obtain permanent residence as a Special Immigrant involves:
- Filing the petition; and
- Submit the application for yourself and for your family members.
First an applicant should file the form I-360 with USCIS under the Special Immigrant category. Along with the form, you must submit the proper supporting documents. Once your petition is approved, you can file an application for your permanent resident status. The procedure for issuing the green card is different if conducted from abroad or within the U.S.
The documents needed vary depending on the category of special immigrant. For example, religious workers must include the following documents with the I-360 petition:
A letter from the authorized official of the religious organization establishing that the proposed services and applicant qualify as listed above;
A letter from the authorized official of the religious organization attesting to the applicant's membership in the religious denomination and explaining, in detail, the person's religious work and all employment during the past two years, and for the proposed employment; and
Evidence establishing that the religious organization, and any affiliate which will employ the person, is a bona fide nonprofit religious organization in the U.S. and is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986.
Green Card under Protected Status
There are different types of protected status for immigrants and non-immigrants who are looking for a safe haven in the United States: temporary protected status (TPS), Deferred Enforced Departure (DED), and Political Asylum.
Temporary Protected Status
TPS allows nationals from particular countries to extend their stay in the United States because they could not safely return home due to dangerous circumstances in their home countries. While TPS allows individuals to get work authorizations, it does not lead to Permanent Resident Status. It is intended to be a temporary solution to protect people just for the amount of time it takes for the conflict in their native countries to be resolved. The list of participating countries changes over time. In 2009 the list included the following countries:
- El Salvador
- Honduras
- Nicaragua
- Somalia
- Sudan
Deferred Enforced Departure
Deferred Enforced Departure allows specific groups of non-immigrants to stay in the United States beyond their visa expiration date due to the dangerous conditions they would face if forced to go back to their home countries. On March 20, 2009, President Barack Obama signed a memorandum for the Secretary of Homeland Security authorizing "Deferred Enforced Departure" for Liberians. The Deferred Enforced Departure allows Liberians currently in the United States to stay beyond the expiration of their visas until the date covered by the Deferred Enforced Departure. Aliens wishing to take advantage of the Deferred Enforcement Program must apply for it.
Political Asylum
Anyone who has experienced persecution or has a well-founded fear of persecution may apply for political asylum. Applicants who are physically outside the United States are refugees. Applicants who are already in the United States are referred to as asylees. Persecution is strictly defined and if the persecution or well-founded fear of persecution is found to be without basis, the applicant will be permanently ineligible for admission into the United States. The persecution, or well-founded fear, must be based on one of the five following grounds:
- Religious
- Race
- Nationality
- Political Opinion
- Membership in a particular social group
There are different rules for refugees and asylees. Both groups of immigrants are eligible to apply for permanent resident status after one year in the United States. Refugees are required to apply for permanent resident status after one year in the United States, but asylees are not so required—although it is likely in their best interest to apply as soon as they are eligible.
Applying Outside the U.S.
If you are outside the United States and seek protection as a refugee, you can go to the U.S. embassy or consulate nearest you, or to the nearest United Nations office or non-profit organization designed to assist refugees. You will complete applications and forms and will need to present evidence of persecution, or of the well-founded fear of prosecution. An immigration official will conduct a personal interview to assess whether you qualify for a visa based on protected status.
If you want to work in the United States under your refugee status, you can apply for a work authorization with Form I-765. You can bring your immediate family (spouse and unmarried children under age 21) by applying for refugee status for them with Form I-730.
The REAL ID ACT
In 2005, the REAL ID Act was passed and requires that the basis of the persecution in one of the five categories be the central cause of the persecution. If the central basis of the persecution is something other than one of the above categories, the immigrant cannot apply for political asylum. For example, if a person has economic persecution, that would not be relevant for asylum purposes.
Gender can be considered as membership in a particular social group; for example, women who have been subjected to female circumcision or genital mutilation may apply for political asylum. There is much debate in legal arguments whether women who have been abused through domestic violence can get political asylum based on their membership in a particular social group. Asylum can be granted to those who are persecuted, or fear persecution which does not come from the government. If the persecution comes from terrorist groups, or rebels who refuse to acknowledge the established government, then the immigrant can apply for political asylum.
After arriving in the United States, an immigrant must apply for political asylum within one year or s/he loses the opportunity to do so.
Ineligible Persons
There are people who are not eligible for any of the protected status visas. Some causes for ineligibility are:
- A felony conviction
- A prosecutor of others
- A finding by the Department of Homeland Security or the Department of State that the applicant poses a threat either to the welfare of the citizens of the United States or to foreign policy for the United States
There are quotas for refugees in general as well as specific quotas for countries. The quotas changes each year. The president is authorized to determine how the total quota is divided among countries. A refugee application will not be accepted unless the refugee can prove s/he can afford transportation to the United States as well as to support him/herself once in the United States.
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