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Felix P. Montero, Attorney
About | Immigration Law
U.S. immigration law is complex, and there is much confusion as to how it works. Immigration law in the United States has been built upon the following principles: the reunification of families, admitting immigrants with skills that are valuable to the U.S. economy, protecting refugees, and promoting diversity.
The body of law governing current immigration policy is called The Immigration and Nationality Act (INA). The INA allows the United States to grant up to 675,000 permanent immigrant visas each year across various visa categories. On top of those 675,000 visas, the INA sets no limit on the annual admission of U.S. citizens’ spouses, parents, and children under the age of 21. In addition, each year the president is required to consult with Congress and set an annual number of refugees to be admitted to the United States through the U.S. Refugee Resettlement Process.
Once a person obtains an immigrant visa and comes to the United States, they become a lawful permanent resident (LPR). In some circumstances, noncitizens already inside the United States can obtain LPR status through a process known as “adjustment of status.” Lawful permanent residents are foreign nationals who are permitted to work and live lawfully and permanently in the United States. LPRs are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country permanently, even if they are unemployed. After residing in the United States for five years (or three years in some circumstances), LPRs are eligible to apply for U.S. citizenship. It is impossible to apply for citizenship through the normal process without first becoming an LPR. Each year the United States also admits a variety of noncitizens on a temporary basis. Such “non-immigrant” visas are granted to everyone from tourists to foreign students to temporary workers permitted to remain in the U.S. for years. While certain employment-based visas are subject to annual caps, other non-immigrant visas (including tourist and student visas) have no numerical limits and can be granted to anyone who satisfies the criteria for obtaining the visa.
I. Family Based Immigration
Family unification is an important principle governing immigration policy. The family-based immigration category allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.
Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are:
- spouses of U.S. citizens;
- unmarried minor children of U.S. citizens (under 21-years-old); and
- parents of U.S. citizens (petitioner must be at least 21-years-old to petition for a parent).
A limited number of visas are available every year under the family preference system, but prospective immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The preference system includes:
- adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21-years-old to petition for a sibling), and
- spouses and unmarried children (minor and adult) of LPRs.
In order to balance the overall number of immigrants arriving based on family relationships, Congress established a complicated system for calculating the available number of family preference visas for any given year. The number is determined by starting with 480,000 and then subtracting the number of immediate relative visas issued during the previous year and the number of aliens “paroled” into the U.S. during the previous year. Any unused employment preference immigrant numbers from the preceding year are then added to this sum to establish the number of visas that remain for allocation through the preference system. However, by law, the number of family-based visas allocated through the preference system may not be lower than 226,000. The number of immediate relatives often exceeds 250,000 in a given year and triggers the 226,000 minimum for preference visas. As a result, the total number of family-based visas often exceeds 480,000.
In Fiscal Year (FY) 2017, family-based immigrants comprised 66 percent of all new LPRs in the United States.
In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish the legitimacy of the relationship, meet minimum income requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States or adjustment to LPR status within the United States. The individual relative also must meet certain eligibility requirements that include submitting to a medical exam and obtaining required vaccinations, an analysis of any immigration or criminal history, as well as demonstrating that they will not become primarily dependent on the government for subsistence.
The spouses and children who accompany or follow the principal immigrant (the one sponsored by the U.S. citizen or LPR under the family-preference category) are referred to as derivative immigrants. Derivative immigrants also count toward the numerical cap for the categories in the table above. That means that many of the visa slots allotted for members of these categories are often actually used by the spouses and children of the members. For example, in FY 2017, 65,649 people were admitted in the category “brothers and sisters” of U.S. citizens, but only 22,611 of them were actual brothers or sisters of U.S. citizens. The rest were spouses (15,648) and children (27,390) of the siblings of U.S. citizens.
II. Employment-Based Immigration
The United States provides various ways for immigrants with valuable skills to come to the country on either a permanent or a temporary basis.
Temporary Visa Classifications
Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs. There are more than 20 types of visas for temporary nonimmigrant workers. These include L-1 visas for intracompany transfers; various P visas for athletes, entertainers, and skilled performers; R-1 visas for religious workers; various A visas for diplomatic employees; O-1 visas for workers of extraordinary ability; and various H visas for both highly-skilled and lesser-skilled workers. The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. In most cases, they must leave the United States if their status expires or if their employment is terminated. It may be possible, depending on the type of job and the foreign national’s qualifications, for an employer to sponsor the worker for permanent employment. A foreign national does not have to be working for the employer in order to be sponsored. However, depending on the permanent immigration category sought and the foreign national’s current nonimmigrant category, the foreign national may be able to complete the steps to become an LPR while continuing to live and work in the United States.
The overall numerical limit for permanent employment-based immigrants is 140,000 per year. This number includes the immigrants plus their eligible spouses and minor unmarried children, meaning the actual number of employment-based immigrants is less than 140,000 each year. The 140,000 visas are divided into five preference categories, detailed in Table 2. For some categories, the sponsor must first test the U.S. labor market under terms and conditions established by the Department of Labor, and the Secretary of Labor must certify that the petitioner’s application met certain requirements before the sponsor may file a petition with USCIS. For some categories, the sponsor’s first step is to file a petition with USCIS or the foreign national may self-petition. The final step is the foreign national’s application for an immigrant visa at a U.S. Embassy or Consulate abroad or an application to adjust status to LPR if in lawful status in the United States. For consular processing, the immigrant visa application cannot be filed until after USCIS approves the immigrant petition. For adjustment of status, the time to file the application depends on whether a visa number is considered to be immediately available.
III. Per-Country Ceilings
In addition to the numerical limits placed upon the various immigration preferences, the INA also places a limit on how many immigrants can come to the United States from any one country. Currently, no group of permanent immigrants (family-based and employment-based) from a single country can exceed seven percent of the total number of people immigrating to the United States in a single fiscal year. This is not a quota to ensure that certain nationalities make up seven percent of immigrants, but rather a limit that is set to prevent any immigrant group from dominating immigration patterns to the United States.
IV. Refugees and Asylees
Protection of Refugees, Asylees, and other Vulnerable Populations
There are several categories of legal admission available to people who are fleeing persecution or are unable to return to their homeland due to life-threatening or extraordinary conditions.
Refugees are admitted to the United States based upon an inability to return to their home countries because of a “well-founded fear of persecution” due to their race, membership in a particular social group, political opinion, religion, or national origin. Refugees apply for admission from outside of the United States, generally from a “transition country” that is outside their home country. The admission of refugees turns on numerous factors, such as the degree of risk they face, membership in a group that is of special concern to the United States (designated yearly by the President of the United States and Congress), and whether or not they have family members in the United States.
Each year, the president, in consultation with Congress, determines the numerical ceiling for refugee admissions. The total limit is broken down into limits for each region of the world as well. After September 11, 2001, the number of refugees admitted into the United States fell drastically. After the Bush administration put new security checks in place, annual refugee admissions returned to their previous levels and rose during the Obama administration. In the Trump administration, the refugee ceiling has sharply fallen, from 110,000 in 2017 to 45,000 in 2018 and 30,000 in 2019. Since 2017, actual admissions of refugees have also fallen well below 50 percent of the actual annual ceiling. At 22,491, 2018 had the lowest number of admitted refugees since the system was created in 1980. On September 26, 2019, the president set the annual cap on refugees for fiscal year 2020 at just 18,000, the lowest level ever.
Asylum is available to persons already in the United States who are seeking protection based on the same five protected grounds upon which refugees rely. They may apply at a port of entry at the time they seek admission or within one year of arriving in the United States. There is no limit on the number of individuals who may be granted asylum in a given year nor are there specific categories for determining who may seek asylum. In FY 2017, 26,568 individuals were granted asylum.
Refugees and asylees are eligible to become LPRs one year after admission to the United States as a refugee or one year after receiving asylum
V. The Diversity Visa Program
The Diversity Visa lottery was created by the Immigration Act of 1990 as a dedicated channel for immigrants from countries with low rates of immigration to the United States. Each year, 55,000 visas are allocated randomly to nationals from countries that have sent fewer than 50,000 immigrants to the United States in the previous five years. Of the 55,000, up to 5,000 are made available for use under the Nicaraguan Adjustment and Central American Relief Act program, created in 1997 to provide relief to certain asylum seekers who applied for asylum before a specific date. This results in a reduction of the actual annual limit to 50,000. Beginning in 2020, DOS expects most of the 5,000 visas to be restored to the Diversity Visa program. Although originally intended to favor immigration from Ireland (during the first three years of the program at least 40 percent of the visas were exclusively allocated to Irish immigrants), the Diversity Visa program has become one of the only avenues for individuals from certain regions in the world to secure a green card.
To be eligible for a diversity visa, an immigrant must have a high-school education (or its equivalent) or have, within the past five years, a minimum of two years working in a profession requiring at least two years of training or experience. Spouses and minor unmarried children of the principal applicant may also enter as derivatives. A computer-generated random lottery drawing chooses selectees for diversity visas. The visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the last five years.
People from eligible countries in different continents may register for the lottery. However, because these visas are distributed on a regional basis, the program especially benefits Africans and Eastern Europeans.
VI. Other Forms of Humanitarian Relief
Temporary Protected Status (TPS) is granted to people who are in the United States but cannot return to their home country because of “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed conflict.” TPS is granted to a country for six, 12, or 18 months and can be extended beyond that if unsafe conditions in the country persist. TPS does not necessarily lead to LPR status or confer any other immigration status.
Deferred Enforced Departure (DED) provides protection from deportation for individuals whose home countries are unstable, therefore making return dangerous. Unlike TPS, which is authorized by statute, DED is at the discretion of the executive branch. DED does not necessarily lead to LPR status or confer any other immigration status.
Deferred Action for Childhood Arrivals (DACA) is a program established in 2012 which permits certain individuals who were brought to the United States under the age of 16 and who had resided continuously in the United States since June 15, 2007, to remain in the United States and work lawfully for at least two years, so long as they have no significant criminal record and have graduated high school or college or received a degree equivalent. It does not confer any path to permanent legal status and requires renewal every two years. In 2017, the Trump administration ended DACA, but due to a court order, individuals who had DACA before the program was ended are still permitted to renew their work authorization and protection from deportation.
Certain individuals may be allowed to enter the U.S. through parole, even though they may not meet the definition of a refugee and may not be eligible to immigrate through other channels. Parolees may be admitted temporarily for urgent humanitarian reasons or significant public benefit.
VI. U.S. Citizenship
In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or through the Violence Against Women Act, VAWA). There are other exceptions including, but not limited to, members of the U.S. military who serve in a time of war or declared hostilities. Applicants for U.S. citizenship must be at least 18-years-old, demonstrate continuous residency, demonstrate “good moral character,” pass English and U.S. history and civics exams (with certain exceptions), and pay an application fee, among other requirements