Basics of Immigration Law

NOTE: THIS IS NOT INTENDED AS LEGAL ADVICE, NOR IS IT AN EXHAUSTIVE RESOURCE ON IMMIGRATION LAW. IMMIGRATION LAW IS COMPLICATED AND FACT-SPECIFIC. FOR QUESTIONS ABOUT IMMIGRATION LAW OR TO INQUIRE ABOUT AVAILABLE TRAININGS, PLEASE CONTACT THE NEW YORK IMMIGRATION COALITION AT 212-627-2227.

For more comprehensive information on immigration law:

Who are Today’s Immigrants?

US Citizens

  1. Born in the United States; or
  2. Born abroad and one or both parents are US Citizens; or
  3. Naturalized (applied for, and was granted, US Citizenship); or
  4. Derivative citizenship (for minor children of naturalized citizens).

To qualify for naturalization, a person must have had a green card for five years (see below); have been a resident of the United States for five years; have been physically present in the United States for half of that time (30 months); be a person of good moral character; pass an English language and US civics test; and take an oath. Individuals married to US citizens can apply after having a green card for three years if they were a resident of the US that entire time; were physically present in the United States half of that time (18 months); their spouse was a US citizen for all three years and they meet all other requirements.

Members of the military can apply after a year of service, or immediately if they served in an active conflict.

Lawful Permanent Residents (LPRs or “green card” holders).

Lawful Permanent Residents (commonly referred to as “green card holders” because they have a green card as proof of their status) are foreign born individuals who have the right to live in the United States permanently, work for any employer they choose, and travel freely out of the United States. LPR status is the ONLY way by which someone can become a US Citizen.

To become an LPR, most individuals must first be sponsored for an immigrant[1] visa. The following categories of individuals can be sponsored:

Family based sponsorship: Employment based-sponsorship:

 

-Parents, spouses, and minor children of US Citizens;

-Adult unmarried & married children of US Citizens*;

-Spouses and children of Lawful Permanent Residents*;

-Siblings of US citizens*.

-Individuals of extraordinary ability, outstanding researchers/academics, multi-national executives/managers (can sponsor themselves);

-Professionals with advanced degrees, individuals of exceptional activities**;

-Professional, skilled, or unskilled workers*;

-Special immigrants;

-Investors**

 

* These categories are currently backlogged, meaning there are wait times of one or several years before the person holding the visa can apply for the green card. Professional, skilled, or unskilled workers are backlogged for individuals from India, Mexico, and the Philippines.

**These categories are backlogged, but only for individuals from China.

In addition to sponsorship categories, there is also the Diversity Visa, more commonly known as the “Green Card Lottery”. Nationals of countries with low immigration rates to the United States can apply for the lottery if they have a high school diploma or satisfy other work requirements and otherwise qualify to either adjust their status in the United States or consular process (see paragraph below). Lottery applications must be submitted via the internet in the period prescribed by the Department of State (generally 30 days starting with the first Monday of October). The entire application process must be completed within the year. Although only 55,000 green cards are available through the lottery every year, upward of 100,000 applications are selected on the presumption that many will not meet all qualifying requirements. Generally, the higher the number assigned to a selected applicant, the less likely it is that the applicant will actually receive a visa number available to them and be able to complete the process within the year.[2]

Other individuals who can apply for a LPR status (a green card) without needing an immigrant visa are: victims of domestic violence[3], asylees, U visa holders and children who cannot be reunited with one or both parents because of abuse, neglect, or abandonment.

Individuals can apply for a green card in the United States through a process called “adjustment of status” or abroad via “consular processing”. To be eligible for adjustment of status, an individual must have been admitted into the U.S. (i.e. gone through a border inspection checkpoint, even if with fraudulent documents) and must meet certain other requirements. The most common disqualifiers for adjustment of status are illegal entry (“Entry Without Inspection”) or being undocumented in the United States (unless the green card application is for the spouse, parent, or minor child of a US Citizen). All individuals can present themselves to a consulate for processing, but if they have previously had violations of immigration laws, been in the United States unlawfully for a certain period of time, and/or been deported from the United States, they may be subject to bars that would prevent them from entering the United States.

Non-Immigrant Statuses

Immigration laws have a large number of visas available for individuals wishing to come to the United States for a specific purpose[4]. These include a wide variety of work-related visas (H1-B for professional occupations; O & P visas for artists, entertainers, athletes; L visas for inter-company transferees or managers; and A, E or G visas for diplomats etc.). They also include visit visas for tourists and business purposes, student visas, exchange or vocational students, etc. These visas are meant to be temporary and, while some can be renewed for long periods of time, do not lead to permanent resident status in and of themselves. Some can be applied for and obtained from within the United States, but most require a visit to a consulate abroad. Those tied to employment also allow for authorization to work in the United States, though not all will extend that to the spouses of the visa holder.

Humanitarian Benefits

The United States, through its own policy as well as obligations under international law, offers protections to those fleeing harm. This includes resettling refugees who have been processed abroad, as well as permitting individuals in the United States or at its borders to apply for asylum. Those who do not meet statutory requirements for asylum may still have orders of removal withheld pursuant to the Immigration and Nationality Act or the United Nations Convention Against Torture, to which the US is a party to. Unlike refugee or asylee status, which leads a year later to permanent resident status and, from there, US citizenship, withholding orders only protect the individual from being removed to their country of origin. While they allow for work authorization in the United States, they do not grant status, meaning that any person granted withholding of removal who leaves the United States will not be able to return.

Beyond the above, there are a few other statuses or protections that fall under the category of humanitarian benefits. When there is a natural disaster or armed conflict in another country, the US government can extend certain rights to nationals of that country, such as deferred enforcement of departure or extensions of stay, to allow them to stay longer than originally intended. In certain instances, the Secretary of Homeland Security can designate countries for Temporary Protected Status (TPS), allowing nationals of that country to obtain protection from deportation, work authorization, and sometimes permission to travel for periods of up to 18 months, renewable indefinitely at the discretion of DHS. Nepal was designated in June, 2015 after the devastating earthquake there, and Yemen was designated in August due to the ongoing civil conflict. Haiti has been designated since 2010 and Honduras and El Salvador since the early 1990s, each country being re-designated every 18 months.

Finally, when a person shows strong equities and a compelling case why immigration laws should not be enforced against that person, her or she can request deferred action. A grant of deferred action simply means that the government has agreed to defer taking any action on the person’s case for at least the time period specified in the grant (usually a year), and allows the recipient to apply for work authorization. In 2012, President Barack Obama formalized the application process for individuals who had been brought to the United States as children and were at that time under 30 years old. The program, known as Deferred Action for Childhood Arrivals (DACA), had its eligibility requirements expanded in November 2014, at the same time as a new program was created for certain parents (Deferred Action for Parents of American Citizens or Lawful Permanent Residents –or “DAPA”). At the time of this writing, however, both the expansion of the original DACA as well as the DAPA program are on hold, subject to an injunction by a US District Court Judge in Brownsville, Texas.

Undocumented Immigrants

In addition to the various categories detailed above, the United States currently has an estimated population of about 11 million undocumented immigrants. Many – over half – entered the United States lawfully but overstayed their visas while others came to the U.S. over the borders. Over half have been in the United States between 5 and 15 years. Many are part of “mixed status” families, i.e. where some members are US citizens or have some lawful status and others do not. A third have minor US citizen children (under the age of 18).

Entering & Leaving the United States

Several agencies oversee the administration of immigration laws in the United States (see Chapter 8 for a description of the various agencies and their roles). While many play a role in deciding the outcome of applications made for benefits outlined earlier in this chapter, others are tasked with making sure a person either does not enter the US without permission, or does not remain if he or she has violated immigration laws.

The concept of “admission” is an important one in immigration law. Individuals seeking to enter the United States must show that they are admissible – i.e. that none of the grounds of inadmissibility apply to them – upon being inspected by a border patrol agent (at the airport, at a land border crossing, or at a ship terminal). Once allowed to enter the United States, a person is deemed to have been “admitted” and, if the US government wants to force them to leave, it will have to deport them. An individual who was not inspected and admitted when they first physically arrived in the United States (Entered Without Inspection or “EWI”) is considered an “arriving alien” (versus an “admitted alien”) similar to a person presenting themselves at a border point of entry, regardless of how long they have actually been in the US. One slight variation is called “parole”, which applies when a person is not admissible to the United States immediately, but is nonetheless permitted to enter the US to resolve some question about his or her status. A common example is a person seeking protection who may not have had a valid visa to enter the US, but will be allowed in to apply for asylum.

Arriving aliens must not be subject to any grounds of inadmissibility, which can be found in INA s. 215. These grounds are divided into six main categories:

  1. Health related grounds;
  2. Criminal related grounds (including, but not limited to, persons who have either been convicted or admitted to committing crimes involving moral turpitude, drug-related crimes, and/or aggravated felonies as defined by the INA and not state law.)
  3. Security related grounds (national security, terrorist activity, membership in communist or Nazi parties, for example.)
  4. Public charge grounds (no one likely to require welfare assistance will be admitted to the US.)
  5. Labor certification related grounds (immigrants coming to work in the US must pass a labor market test overseen by the Department of Labor.)
  6. Illegal entrants, immigration law violators, other breaches of immigration law (including false claims to US citizenship or voting in an election.)

Important note: An LPR (“green card holder”) is not considered to be seeking admission upon returning from a trip abroad unless the LPR has been convicted of a crime or has been out of the United States for over a year. If the LPR has been out of the United States over six months, the LPR will have to show that her or she did not abandon his or her residence in the US or the LPR will also be deemed to be seeking admission. All other non-citizens are considered to be seeking admission every time they enter the United States, no matter how brief their time outside of it was. In practice, that means that if something is revealed while the individual is outside the United States (e.g. past criminal conviction) or a border patrol officer at the border determines the individual no longer meets the requirements for the visa, the individual will not be allowed back into the United States, no matter how brief their time abroad was.

Non-citizens admitted into the United States may find themselves deported if they fall under one of the following deportation grounds, which can also be divided into five general categories:

  1. Violations of immigration laws, including terms of the individual’s status in the US.
  2. Criminal related grounds (including, but not limited to, persons who have either been convicted or admitted to committing crimes involving moral turpitude, drug-related crimes, and/or aggravated felonies as defined by the INA and not state law.)
  3. False claims to US citizenship or voting in an election.
  4. Security related grounds (national security, terrorist activity, membership in communist or Nazi parties, for example)
  5. Public charge grounds (if a non-citizen obtained welfare benefits, except if the benefits eligibility was based on events that happened after the non-citizen arrived in the United States).

Important note: Everyone, including LPRs, are subject to deportation grounds. The only true way to be safe from deportation is by becoming a US citizen.

Certain grounds of inadmissibility can be excused through a waiver process. Waiver applications usually require having a relative – most commonly a spouse or parent – who is a US citizen or LPR and who will suffer extreme hardship if the non-citizen is forced to leave the United States or prevented from returning. The most common bars that have waivers available are:

  1. 3/10 year bar: Individuals who have over 180 days of unlawful presence in the United States (i.e. time period when they are in the US without authorization) and leave before removal proceedings are initiated are inadmissible for 3 years. Individuals who have over a year of unlawful presence in the United States are inadmissible for 10 years. The time periods only start running once the person has left the US territory.
  2. Fraud: Individuals who have committed fraud to obtain an immigration benefit are inadmissible to the United States, but can apply for a waiver.

Procedures

Non-citizens wishing to travel to the United States apply for visas at US consulates abroad. Nationals of certain countries[5] do not need visas if they are coming for a short visits – in exchange for dispensing with these requirements, individuals are only permitted to enter for a maximum of 90 days and waive their right to a hearing before a judge if they are alleged of violating immigration laws. Consulates handle both non-immigrant and immigrant visa petitions.

Once in the US, non-citizens can apply for most benefits through US Citizenship and Immigration Services (USCIS). If an application is denied, or a non-citizen comes to the attention of Immigration and Customs Enforcement (ICE) for having violated immigration laws, that person will be placed in removal proceedings before an immigration judge. The judge will decide whether the person has some ability to remain in the United States, or should be removed. In recent years the various agencies have issued guidance as to which cases they will prioritize for referral to immigration courts, meaning that not all denied applications or encounters with ICE will necessarily lead to deportation.

If a non-citizen has an order of removal entered against him or her, ICE will ask the individual to appear at their offices on a certain day with luggage and a plane ticket. Only if the individual is detained will ICE make travel arrangements and get the person on a plane to leave the United States. ICE has the authority to detain any immigrants they deem a flight risk or threat to safety. Non-citizens can be detained by ICE upon entry into the United States, if arrested by ICE within the US territory, or after a removal order is entered again them. Detention centers are either county jails or correctional facilities run by private contractors.

 

[1] Immigrants are individuals planning to settle permanently in the United States.

[2] More information is available on the diversity visa (green card lottery) on the Department of State website: http://travel.state.gov/content/visas/en/immigrate/diversity-visa/entry.html

[3] Pursuant to the Violence Against Women’s Act, victims of domestic violence who could have been sponsored by a family member under one of the family-based sponsorship categories can self-petition for an immigrant visa as a result of the abuse.

[4] See Appendix J, chart of non-immigrant statuses.

[5] Citizens of these countries must go through the Electronic System for Travel Authorization (ESTA) and receive pre-approval to come to the US. A list of countries participating in the visa waiver program is available on the Department of State website at http://travel.state.gov/content/visas/en/visit/visa-waiver-program.html.