WARNING: All information contained herein is offered for the purpose of providing general information only and should not be construed as formal legal advice. The authors disclaim any and all liability resulting from reliance upon such information. You are strongly encouraged to seek professional legal advice from a qualified immigration lawyer before relying upon any of the information contained herein.
The following information is intended to provide a basic framework for complicated U.S. immigration laws and policies. This includes how foreign nationals might legally visit, study, work in, or immigrate to the United States. It is intended for those with limited prior exposure to this specialized area of law.
There are several distinctions one should be aware of initially. Persons physically present in the United States are considered either citizens or nationals of the U.S., or they are aliens. There are two classes of legal aliens. Nonimmigrants, who are admitted to the U.S. temporarily, and immigrants who may reside in the U.S. permanently. Immigrants are also referred to as permanent residents or "Green Card" holders. A lawful permanent resident may become eligible for naturalization as a U.S. citizen. This is usually after maintaining lawful permanent resident status for five years (three years if married to a U.S. citizen), providing he or she meets all other statutory requirements.
Issuance of a nonimmigrant visa by a U.S. Embassy or Consulate only permits an alien to travel to the United States. Upon arrival at a U.S. port of entry, a U.S. Immigration and Naturalization Service ("BCIS") official usually inspects and grants the alien permission to enter and stay a certain period of time in the U.S. by endorsing a card called an arrival/departure record, or Form I-94. This USCIS authorized period of stay may exceed the validity date of the alien's visa. Nationals of some countries are not required to obtain tourist or business (B-1/B-2) visas to travel to the U.S. for stays of 90 days or less. Such individuals cannot extend their period of stay or change their status while still in the U.S.
There is no such thing as a "work permit". Citizens, nationals and lawful permanent residents are authorized to be employed in the United States. Certain non-immigrant visa categories include, as an incident of the visa, authorization to be employed in the United States. The USCIS does issue certain non-immigrants "Employment Authorization" (EAD) cards.
An immigrant visa is a visa which authorizes a person to immigrate to the United States during its four-month period of validity. As with non-immigrant visas, visa issuance does not guarantee admission to the U.S. There are, however, certain waivers available to returning residents which are not available to other aliens seeking to enter the United States.
Aliens in the United States or at a port of entry who are unable or unwilling to return to their home country because of a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group may be granted asylum. Such aliens are often referred to as "asylees".
Within the numerical limitation system there are three separate limitations: (1) There is an absolute cap of 700,000 visas per year; (2) There is an annual cap of 25,650 visas per year for each independent country and 7,320 visas per year for dependent territories; and (3) There are percentage limitations within the system of preference categories.
Immediate Relatives are exempt from numerical limitations. Immediate relatives include the following three groups: Minor children of U.S. citizens; Parents of U.S. citizens who are at least 21 years of age and Spouses of U.S. citizens (Bona Fide Marriage)
The immediate relative category is one of the most important immigrant visa groups exempt from numerical limitations. Its obvious purpose is to promote the unity of families of U.S. citizens. The present statute excludes from numerical restrictions the "immediate relatives" of U.S. citizens. However, while there is no limit to the number of visas issued to immediate relatives (currently about 250,000 annually), the number of visas issued to immediate relatives is counted as part of the 480,000 annual allotment for family-sponsored immigration. Increases in immediate relative visas will reduce the number of visas available for the numerically-limited family preference categories until those groups' share of the family-based immigrant visas falls to 226,000. When that "floor" is reached, further reductions in the preference groups' share of the family-based visas will end.
Other Family Sponsored Immigrants - A minimum of 226,000 family sponsored visas will be allocated annually to the following Family Preference System:
140,000 visas are allocated annually according to an employment based preference ("EBP") system. Such system was established in the belief that the U.S. economy would benefit from increased immigration of skilled workers. Not all of these employment based visas require labor certifications. The five categories of employment based preference (EBP) visas are as follows:
A priority Worker Visa can be any one of 3 subgroups which provide 40,000 visas per year and where no labor certification is required.
(A) Aliens with Extraordinary Ability in the Arts, Sciences, Education, Business, or Athletics which has been demonstrated by national or international recognition or extensive documentation. Such aliens can sponsor themselves; they must come to the U.S. to work in such area; and their work in the U.S. must benefit the U.S.
(B) Outstanding Professors and Researchers. Such aliens must be internationally recognized in a specific area, have at least 3 years' experience in teaching or research, and be offered a permanent teaching or research position. Researchers must work for an employer who employs at least 3 persons in research.
(C) Multinational Executives and Managers. If an alien has been employed by the same petitioning employer for at least one of the last 3 years and such alien will work in the U.S. in a managerial or executive position (which is a definitive and complicated definition), in such circumstances the same petitioner can file on behalf of the alien. Presumably any alien on an L-1 visa who qualified for the L-1 based upon managerial or executive duties under the old Schedule A, Group IV could qualify.
40,000 visas per year, plus any unused visas from EBP #1 above are allocated for such aliens. A professional with a bachelor's degree and 5 years experience would also meet the requirements of an advanced degree. A person of "exceptional ability" under strict standards defined by the USCIS can also qualify. Persons under either category must be sponsored by an employer and must have an approved labor certification unless they can obtain a "National Interest Waiver" of the labor certification requirement. Persons of exceptional ability must illustrate they will benefit the economy, the cultural or educational interests, or the welfare of the U.S.
40,000 visas plus any unused visas from EBP #1 and #2 above are allocated for:
(I) Skilled workers in short supply with 2 years' training or experience
(ii) Professionals - members of the professions who hold bachelor's degrees. Does not permit experience to be used as equivalent of a bachelor's degree.
(iii) Other workers including unskilled workers (No more than 10,000 visas per year can be issued for unskilled workers.) Any qualifying alien must be coming to the U.S. to perform unskilled labor for which qualified workers are not available.
10,000 visas per year can be granted to:
10,000 immigrant visas per year can be given to any investor (and family) from any country who:
Such investor immigrant will be granted conditional permanent residence on behalf of himself and his family which can be converted to permanent residence or "green card" holder after 2 years when such investor files another petition with the USCIS illustrating:
The regulations and their interpretations are varied; however, any good business investment with the foregoing parameters could result in immigration benefits. (Click here for more detailed EB#5 information.)
Most persons coming to the United States as Employment Based Preference ("EBP") #2 or #3 aliens must obtain an alien employment certification, more commonly known as a "labor certification". An exception for EBP#2's can be requested based upon a "National Interest Waiver" The certification is from the Secretary of Labor to the Secretary of State and the Attorney General that (1) there are not sufficient United States citizens or lawful permanent resident workers able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (2) the employment of such aliens will not adversely affect the wages and working conditions of workers in the United States similarly employed. The labor certification process is complex, time-consuming, and the results uncertain.
It should also be noted that individual labor certifications are generally not available to investors through business in which they have invested or own stock.
In 1996 the 104th Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA").
EXPEDITED REMOVAL: IIRAIRA created a new expedited removal process in effect at all U.S. ports of entry. Under this expedited process, persons attempting to enter the U.S. with fraudulent documents or no documents can be summarily removed from the U.S. by an Immigration and Naturalization Service (BCIS) inspector at the port of entry. Additionally, persons who attempt to enter by “mis-representation” also may be removed. The decision of the USCIS inspector is reviewed by his or her supervisor, but IIRAIRA explicitly limits judicial review of the BCIS’ decision to remove the applicant. In addition, a person subject to expedited removal can be barred by the USCIS officer from reentering the U.S. for a minimum for five years, and possibly permanently. Certain aliens who have committed an "aggravated felony" are also subject to removal in expedited administrative proceedings.
BARS TO ADMISSIBILITY: IIRAIRA created new bars to admissibility to the U.S. for people who have been unlawfully present in the U.S. for six months or longer. Under these new provisions, anyone who tries to enter the U.S. who has previously been in the country unlawfully for more than 180 days but less than one year, will be barred from reentering the U.S. for three years. Anyone who is in the U.S. unlawfully for one year or more will be barred from reentering for ten years. The period of unlawful presence in the U.S. only starts to count on and after April 1, 1997, the date of enactment of IIRAIRA. Only very limited and narrow waivers and exceptions to these bars to admissibility exist.
The Immigration and Nationality Act now provides that an alien is inadmissible as an alien likely to become a public charge if the alien is seeking an immigrant visa, admission as an immigrant, or adjustment of status as: (a) An immediate relative, (b) a family based immigrant, or (c) an employment based immigrant, of a relative if the alien is the petitioning employer or owns a significant ownership interest in the entity that is the petitioning employer. To overcome this ground of inadmissibility, the alien must be the beneficiary of an affidavit of support filed under the new section 213A of the Act. Section 213A of the Act specifies the conditions that must be met in order for an affidavit of support to be sufficient to overcome the public charge inadmissibility ground.
Form I-864, Affidavit of Support Under Section 213A of the Act, is a legally enforceable contract between the sponsor and the Federal Government, for the benefit of the sponsored immigrant and of any Federal, State, or local government agency or private entity that provides the sponsored immigrant with any means-tested public benefit. The sponsor must sign the Form I-864 before a notary public or a United States Immigration Officer or Consular Officer. By executing Form I-864, the sponsor agrees to provide the financial support necessary to maintain the sponsored immigrant at an income that is at least 125 percent of the Federal poverty line, unless the obligation has terminated. The sponsor also agrees to reimburse any agencies which provide means-tested public benefits to a sponsored immigrant. The sponsor must, under civil penalty, notify the Service and the State(s) in which the sponsored immigrant(s) reside of any change in the sponsor’s address.
Form I-864 must be executed on behalf of any accompanying or following to join spouse or child under section 203(d) of the Act, if they are filing application for immigrant visas or adjustment of status after December 19, 1997 in a classification for which an affidavit of support is required.
Sponsorship Requirements
Section 213A(f)(1) of the Act sets forth the requirements to be a sponsor. The individual executing the for I-864 must be a citizen or national of the United States or a lawful permanent resident of the United States, be at least 18 years of age, be domiciled in the United States or any of its territories or possessions, and demonstrate the means to maintain an income of at least 125 percent of the Federal poverty guideline (100 percent of the poverty guideline for sponsors on active duty in the Armed Forces of the United States who are petitioning for their spouse or child).
Because the sponsor has an obligation to support the sponsored immigrant(s) at or above 125 percent of the poverty line, for purposes of the Form I-864, the sponsor’s household size is increased by the number of immigrants sponsored in the affidavit of support. This applies to all affidavits of support under section 213A of the Act, regardless of whether the sponsored immigrant(s) will be living in the same residence as the sponsor.
In order to meet the income threshold, the sponsor may rely on his or her own income, the income of his or her spouse, and the income of any other individuals who are related to the sponsor by birth, marriage, or adoption and have been living in the sponsor’s residence for the previous 6 months or who are listed as dependents on the sponsor’s most recent income tax return. In order to rely on the income of these other persons, however, the sponsor must include with the affidavit of support a written contract o Form I-864A, Contract Between Sponsor and Household Member, between the sponsor and each person whose income the sponsor will rely on to meet the income threshold. This written contract will provide that each person whose income the sponsor will rely on has agreed, in consideration of the sponsor’s signing of the Form I-864, to assist their sponsor in supporting the sponsored immigrant(s), to be held jointly and severally liable for payment of any reimbursement obligation that the sponsor may incur, and to submit to the personal jurisdiction of any competent court.
Federal individual income tax returns for the 3 most recent tax years must be attached to the Form I-864 for each individual whose income is used to qualify. These individuals must certify on Form I-864A, under penalty of perjury, that any attached tax returns are true and correct copies of the returns as submitted to the IRS. If any of these individuals has no legal obligation to file a Federal income tax return for any of the 3 most recent tax years, he or she must explain his or her failure to file and provide other evidence of annual income. The sponsor and any other individual whose income is used to qualify must also submit current evidence of employment of self-employment (if any).
After calculating household income, the sponsor must determine whether his or her total income level meets or exceeds the poverty guidelines, based on the applicable household size, including family members residing with the sponsor, dependents, and any immigrants sponsored in the Form I-864 being filed or in a previous Form I-864 where the obligation has not terminated. There may be instances in which an Immigration or Consular Officer may question the sponsor’s ability to maintain income based on the sponsor’s current employment situation, on the Federal income tax returns for the 3 most recent tax years, or on receipt of welfare benefits.
If the petitioner is unable to demonstrate the means to maintain income equal to at least 125 percent of the poverty line, the intending immigrant is inadmissible under section 212(a)(4) of the act, unless the petitioner and/or the sponsored immigrant(s) demonstrate significant assets which are available for the support of the sponsored immigrant(s) or a joint sponsor also executes a Form I-864. In order to be a joint sponsor, the individual must execute a separate Form I-864 and must accept joint legal responsibility with the petitioning sponsor and have an income and/or assets, based on his or her household size, including dependents and the number of persons previously and currently sponsored on Form I-864, which meets or exceeds 125 percent of the Federal poverty line.
Because section 213A(f)(6)(A)(ii) of the Act specifically permits the sponsor to rely on the assets of the immigrant sponsored in the affidavit of support being filed, the sponsored immigrant is not required to sign for I-864A in order for the Consular Officer or Immigration Officer to consider the sponsored immigrant’s assets. To reiterate, a sponsored immigrant who is a member of the sponsor’s household is required to sign a for I-864A only if the sponsor will rely on that sponsored immigrant’s income to show the sponsor’s ability to support a spouse or child immigrating with the sponsored immigrant.
The Immigration Service has determined that assets must be sufficient to support the intending immigrant(s) for at least 5 years, if necessary. Under section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-194, any alien (with certain exceptions) who obtains lawful permanent resident status after enactment is ineligible for any Federal means-tested public benefit for a period of 5 years. 5 years is also the general residency requirement to qualify most immigrants for naturalization.
The Immigration Reform and Control Act of 1986 provided for the imposition of:
Civil and Criminal penalties for hiring aliens not authorized to work by the BCIS. The following comments are directed primarily to the basic record keeping requirements every employer must meet for every employee hired since November 6, 1986. Overall, the new law, Public Law 99-603 imposed civil and potential criminal penalties upon any employer who fails to verify the proper working status of any employee hired by requiring the following:
Employers normally become liable if:
Form I-9 (or a copy thereof) must be completed within 3 business days for anyone hired after May 31, 1987. Form I-9 does not need to be completed for:
Employers can comply with the verification requirements of Form I-9 if a document "reasonably appears on its face to be genuine". Employers are authorized, but not required, to make copies of documents examined.
EMPLOYER VIOLATION - Hiring or continuing to employ unauthorized employees.
EMPLOYER VIOLATION - Failure to complete, maintain or produce Form I-9 when requested.
EMPLOYER VIOLATION - Employers who require the employee to indemnify the employer against liability may be fined $1,000 and ordered to make restitution.
EMPLOYER VIOLATION - Engaging in a pattern or practice of violating the law - fine of $3,000 per employee and/or 6 months imprisonment.
EMPLOYEE VIOLATION - Engaging in fraud, false statements or misusing visas, permits or identity documents - fines and imprisonment up to 2 years.
All employers should have procedures to insure proper completion, maintenance and retrieval of Form I-9 for any employees hired since November 7, 1986.
USCIS officers have no right to enter an employer's private premises without a valid arrest or search warrant issued by a federal judge or magistrate, unless the employer consents. An employer's normal duty to present I-9 forms after three days' advance notice does not include other documents, such as payroll lists or tax records. Neither the employer or the employees are required to answer any USCIS officer's questions. It is a crime to lie to federal officers or to make false statements on I-9 forms.
I. If you are questioned by agents of the U.S. Immigration and Naturalization Service ("BCIS"), you have these rights:
II. If you are in the custody of the USCIS and your immigration status is questioned, the USCIS may ask you to sign a voluntary departure statement and waive your right to a hearing. You may be eligible to request a deportation-removal hearing before an Immigration Judge.
1. Administrative Voluntary Departure - is when you agree to leave the United States voluntarily without a hearing.
2. Deportation-Removal Proceedings - are hearings to determine your right to be or remain in the United States. You may wish to request a hearing:A. If you can adjust your status to a permanent resident;
B. If you are eligible for cancellation of removal proceedings;
C. If you have been denied but are eligible for voluntary departure; or
D. If you want to request political asylum in the United States.
4. Voluntary Departure - Can be applied for before or during the deportation hearing. The general prerequisites are:
A. Good moral character for at least five years prior to the date of application; and
B. The financial means to depart the United States.
If your voluntary departure request is granted, an immigration judge will allow you a certain period of time within which to depart from the United States. Failure to leave within the specified time automatically reinstates the order of deportation. However, a request for extension of the date of voluntary departure may be made to the USCIS District Director.
NOTE: It is always better to avoid formal deportation-removal when possible, because it will bar your legal re-entry into the United States for up to five years or more, unless you are able to obtain prior special permission from the U.S. Attorney General. Such illegal re-entry may subject you to a felony criminal prosecution.