Congress has been legislating concerning immigration since the 18th century. These laws have become more and more complex as the country grew. Today immigration law is one of the most complicated areas of the law, making the need for an experienced immigration attorney all the more essential. Here at the Allen Law Firm, we will help you navigate through the complex immigration processes and help you achieve the best result possible.
Definition of an Immigrant Alien
An immigrant is a non-U.S. citizen present in or coming to the United States with an intent to reside there permanently. The laws governing immigration in the United States presume that any foreign-born person (also called a “foreign national”) coming to the United States has the intent to become a lawful permanent resident (LPR). An LPR is someone who has been granted an immigrant visa (known as a “green card”). Legal immigrants are the same as LPRs, and they may live and work in the U.S. indefinitely as long as they do not commit any offenses that would subject them to deportation.
Definition of a Non-immigrant Alien
A non-immigrant is a foreign national permitted to enter the U.S. for a limited duration for purposes such as travel, school, temporary employment, and business investment (See below for a complete list of the non-immigrant visa categories.). Non-immigrants are granted non-immigrant visas.
Becoming a Legal Immigrant
There are four types of immigration through which a person becomes a legal immigrant, or LPR:
1. Family-based: A U.S. citizen may sponsor his or her spouse, parent (if the sponsor is 21 or older), children, brothers and sisters. An LPR may sponsor his or her spouse, minor children and adult unmarried children. Sponsors must have an income level that exceeds nationally established poverty guidelines by 25% and must promise in writing to support the family member(s) he or she wishes to sponsor. The number of family-based immigrants is limited to 480,000 per fiscal year. Of this number, there is no limit to the number of visas available to:
- Spouses of U.S. citizens
- Unmarried minor children of U.S. citizens (includes stepchildren under some circumstances)
- Parents of U.S. citizens
(These three types are called “immediate relatives”.)
For family-based immigrants who are not immediate relatives, there is a Family Preference System that limits the number of immigrant visas to different foreign nationals, as illustrated in the table below. Backlogs in the quotas are common. For more accurate information regarding visa availability, see the most recent issue of the Visa Bulletin for current dates.
|Family Preference System|
|U.S. Sponsor||Relationship||Preference Number||Visas Allocated|
|U.S. citizen||unmarried adult children||1st preference||23,400/year1|
|LPR||Spouses and minor children||2nd A preference||87,900/year|
|LPR||unmarried adult children (21 or older)||2nd B preference||26,300/year|
|U.S. citizen||Married adult children||3rd preference||23,400/year2|
|U.S. citizen (21 or older)||brothers and sisters||4th preference||65,000/year3|
1Plus any visas left over from 4th preference
2Plus any visas left over from 1st and 2nd preferences
3Plus any visas left over from the previous preferences
2. Employment-based: Through the Labor Certification Process as well as through several methods for exceptional foreign nationals, including National Interest Waivers, employers can sponsor a foreign national for admission as an LPR. The process usually involves demonstrating to the Department of Labor that there are no available U.S. workers for the job for which an immigrant visa is sought. The number of employment-based visas available each fiscal year is limited to 140,000. There are five types of employment-based immigrant visas, and they are ranked by priority of the needs of the U.S. economy and employers. The five types that comprise the Employment Preference System are summarized in the table below.
|Employment Preference System|
|1st preference||Up to 40,000 visas/year||Priority Worker category, made up of aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers|
|2nd preference||Up to 40,000 visas/year||Members of the professions holding advanced degrees (higher than bachelor’s degree) or aliens of exceptional ability|
|3rd preference||Up to 40,000 visas/year||Skilled workers, professionals, and other workers|
|4th preference||Up to 10,000 visas/year||Special immigrants, including ministers, religious workers and others|
|5th preference||Up to 10,000 visas/year||Persons investing between $500,000 and $3 million in a job-creating enterprise in the U.S. that employs at least 10 U.S. workers per investor|
3. Refugees/Asylees: Refugees are foreign nationals located outside the U.S. who want to enter the U.S. to escape persecution in his or her home country. An Asylee is a foreign national who is already in the U.S. that wants to remain because he or she fears persecution in his or her home country.
Refugee and Asylum applicants must prove that they have a well-founded fear of persecution based on one of the following recognized grounds:
- Membership in a social group
- Political opinion
- National origin
There is no limitation on the number of persons who may be granted asylum in a given fiscal year. Limitations on the number of refugees admitted annually are determined by the President and are divided up by world regions. For example, the number for Fiscal Year 1998 was 78,000. Further, only 10,000 asylees may become LPRs in any fiscal year, while no limit is placed on refugees.
4. Diversity Lottery Visa
Each year, the Diversity Lottery Program makes 55,000 new immigrant visas available for individuals from underrepresented nations. Administered by the U.S. State Department, the Diversity Lottery Program requires that you have either a high school education, its equivalent, or two years work experience within the last five years in a job which demands two years training. You or your spouse must be a native of a nation eligible for the Diversity Lottery Program.
Becoming a Legal Non-immigrant
There a number of different types of non-immigrant visas (NIV), and they range in duration from several days to as many as six years. Some NIVs must be applied for in advance through the United States Citizenship and Immigration Service and then reviewed and issued by the State Department. Other NIVs are reviewed by the State Department alone. An important distinction to make when considering NIVs is between the terms “visa” and “status.” They are not the same, and confusion sometimes arises. The visa is an actual document applied for that gives the NIV holder a legal basis to come to the U.S. Status is granted to the NIV applicant when he or she reaches the U.S. border.
For example, for an H-1B temporary professional worker, the person has an H-1B visa that is physical document in his or her passport. Once the person shows up at the U.S. border with that visa and is admitted into the U.S., he or she is in H-1B status. The status is important because it is time-sensitive. A person may still have a visa in his or her passport but not be in the U.S. legally because he or she has stayed beyond the status duration granted. Status can be extended or changed by USCIS Service Centers in the U.S. as well as through U.S. consulates abroad. The different types of NIVs currently available are as follows:
- Diplomatic Employees and their Households
- Business Visitors (B-1) and Tourists (B-2)
- Transit Visa (pass-through at airport or seaport)
- Crew Member (air or sea)
- Treaty Investors or Treaty Traders (from countries with whom the U.S. has a treaty of commerce and investment)
- Employees of International Organizations (IMF, UN, etc.)
- Temporary Workers (professional, agricultural, temporary/seasonal, trainees)
- Representatives of International Media
- Exchange Visitors (educational, au pairs, professors, researchers, etc.)
- Fiances and Fiancees
- Intracompany Transferees (executives, managers, or having proprietary knowledge)
- Language and Vocational Students
- NATO Employees
- Extraordinary Ability Aliens
- Athletes, Entertainment Groups (e.g., orchestras) and Support Personnel
- Cultural Exchange Visitors
- Religious Workers
- Criminal Informants
We have helped clients become U.S. citizens for more than a decade. U.S. Citizenship can be obtained through various means, including acquisition of citizenship (being born outside of the U.S. while having a U.S. citizen parent), naturalization, operation of law (specifically the Child Citizenship Act of 2000), or by past service in the United States Armed Forces.
Generally, a person qualifies for U.S. citizenship if he or she has been a permanent resident of the United States for 5 years or has been married to a U.S. citizen for at least 3 years. Additionally, an applicant must be able to:
- Provide evidence of good moral character
- Display knowledge of U.S. history and government
- Demonstrate the ability to read and write basic English
- Establish knowledge of and attachment to the U.S. Constitution
If more than 120 days have passed since your naturalization interview and you have not received your oath ceremony appointment letter, you may be entitled to file a complaint in the Federal Court against the immigration service to expedite the handling of your case.
If you have been convicted of a criminal offense, we urge you to consult with us prior to filing your citizenship application.
The removal, or deportation process is a serious and very complicated legal process. Therefore, it is essential that you hire a immigration lawyer as early as possible if you are facing deportation. Even if formal deportation or removal proceedings have not begun, visa violations, criminal violations and expired visas all require the attention of an immigration attorney experienced in the area of immigration and naturalization law to preempt removal or deportation proceedings.
Immigration Litigation | Removal Process
The Deportation proceeding is typically commenced by the Immigration and Customs Enforcement (ICE) of the Department of Homeland Security (DHS). A document entitled “Notice to Appear” (NTA) is issued and served on the person who is subject to the deportation proceeding. The NTA is to notify the non U.S. citizen to appear before an administrative (immigration) judge to explain the legal reason why they are entitled to remain in the U.S. One of the common reasons for ICE to issue an NTA is if they believe that the non U.S. citizen has committed crimes of “moral turpitude,” aggravated felonies, assault, or other aggravated crimes, or if they are “out of status”.
Both foreign nationals and legal permanent residents (LPR’s) may be subject to the issuance of an NTA and may be subject to deportation. It is critical that you consult an immigration attorney before you enter any type of plea bargain agreement, because you may compromise important rights that you may not be aware of. We can help you deal with these legal issues, but you must act quickly to ensure that you have all the protections available to you.
Even after you have received a “Notice to Appear” (NTA), relief may be available, such as adjustment of status, waivers, suspension of deportation, cancellation of removal, asylum, withholding of removal, or withholding of removal based on the Convention Against Torture (CAT). If you have received a “Notice to Appear” (NTA) or if you are in deportation or removal proceedings, contact us now to discuss your specific deportation matter with an experienced attorney.
In the event that the immigration judge decides the case against you, you may file an appeal with the Immigration Board of Appeals. Such an appeal has to be filed within 30 days from the date the immigration judge issues his decision.
In the event that the appeal is unsuccessful, you may be eligible to file a petition for review in the Federal Circuit Court that has jurisdiction over your area of residence. Please be aware that there is a short time limit (30 days) in which to file such an appeal. Please consult with an us immediately so we may be able to help you.
Asylum petition. If you have a well-founded fear of persecution if you return to your country on the basis of race, religion, nationality, membership in a particular social group, or political opinion you may be entitled to an asylum status in the US. We have handled many asylees succeed in their asylum petitions. Call so we may help you achieve your goals.