Immigration primer
Tue May 08, 2007 at 05:06:37 AM PDT
There have been many discussions about immigration law on Daily Kos, with many great contributions. I've been working with immigration law for well over 10 years, ever since my immigration lawyer messed up my own case (although I am not a lawyer or other legal professional), and have my own immigration law FAQ Web site. This diary is supposed to be a quick reference to the full FAQ.
There were a number of questions about current immigration law, and I'd like to inject some information about the current situation. So I expect that this will be an ongoing effort.
By way of background, I came to the USA (legally) in the early 1990s, applied for a Green Card, and became a citizen in 2005.
Q: What is an immigrant, and what is a non-immigrant?
A: According to immigration law, an immigrant is somebody who intends to permanently reside in the USA. A non-immigrant is somebody who intends to come to the US for some temporary purpose, and then return.
US immigration law assumes that everybody showing up at an airport or border checkpoint is an immigrant, unless he can prove that he is not - the proof is usually with a non-immigrant visa.
Immigrants must have an immigrant visa, non-immigrants must have a non-immigrant visa specific only to the purpose they came to the US for. For instance, to study you need an F-1, as a tourist you need a B-2, as a business visitor you need a B-1, as a diplomat you need an A or G visa, and so on.
Once an immigrant arrives in the US, he ceases to be called immigrant, and instead is technically called LPR, or Legal Permanent Resident.
An immigrant is allowed to do nearly anything a US citizen is allowed to do (except for voting, doing jury duty, work in certain security-related jobs, receive certain types of social services, and a few other restrictions).
A non-immigrant is allowed - and required - to do what the stated purpose of his status is. For instance, a student with F-1 status who drops out of school would violate immigration law (called "violating his status"). An H-1B worker who loses his job also violates his status. Status violators usually have a chance to fix the problem, either by getting reinstated (for students) or by finding a new job and getting a new H-1B petition (for H-1Bs), or in whatever other way may be appropriate.
A non-immigrant is not allowed to work, unless that's the purpose why he came to the US - and then he is only allowed to work for the stated employer. There are exceptions for spouses of certain students, L-1, E non-immigrants and some diplomats - they may sometimes be allowed to work.
Q: What is a visa?
Visa is one of the most misunderstood terms in immigration. A visa is actually a document that allows a non-citizen to apply for admission (that is, show up at an airport or border checkpoint). For non-immigrants a stamp in the passport, for immigrants an envelope. Visas are always issued at US consulates abroad, never inside the USA (there are a few exceptions to this rule for diplomats).
A visa is not useful after you are in the USA, it only allows you to be admitted into the country. That's it.
Once a CBP officer admits somebody who has a visa (or in some cases, without a visa), that person is said to have a status. For non-immigrants, the status expires at some point, for immigrants, the status is usually good for life, or until the immigrant loses it.
The status for a non-immigrant has a category, usually the same as the category of the visa.
Non-immigrants receive a document called form I-94 (either white or green, or in some cases beige) to show their status. Immigrants receive a document called a Green Card to prove their status.
It is also worth noting that in many cases, somebody can get a status without getting a visa. For instance, let's say somebody comes to the US as a tourist to check out various universities, and then enrolls. At this point, he would apply for a change of status to student, and USCIS would send him a new I-94 by mail.
Q: How does somebody apply to become an immigrant?
That's the $10,000 question. In practical terms, it is actually nearly impossible for most people. Here is the step-by-step process:
- Find a category that you may qualify for. This is the first hurdle for most people; the categories are extremely restrictive, and most people just don't fit anywhere.
- a Some categories require the sponsor to get some preliminary paperwork. In particular, employment-based immigrants usually need a Labor Certification. This document is supposed to prove that there is no US citizen who could take the job. It used to take up to five years to get, but recently the situation has improved and it now only takes a few weeks or months.
- b Depending on the category, either file a petition yourself, or in most cases, have a sponsor file a petition for you. The date you file the petition is called the Priority Date and is extremely important. If the petition required a Labor Certification, the date your employer filed that is your Priority Date instead.
- Wait for the petition to be approved and for the priority date to become current. Usually, that wait is the longest delay. How long it takes depends on the quota, the category and your country of birth, and varies currently between a few years and 23 years for the Family 4th Category for the Philippines.
- Apply for either an immigrant visa (if you are outside the USA) or Adjustment of Status (if you are inside the USA).
Q: What categories are there?
For immigrants, there are three main groups of categories, plus some special types of immigrant.
The main groups are Family based, Employment-based, and Immediate Relatives.
Immediate Relatives are spouses and minor children of US citizens, as well as parents of US citizens. This is the only category that does not have a quota, so there will never be a wait for the quota.
Family based is subdivided into
F1: Adult (over 21) unmarried sons and daughters of US citizens
F2a: Spouses and minor children of Green Card holders
F2b: Adult children of Green Card holders
F3: Married children of US citizens (regardless of age)
F4: Brothers and Sisters of US citizens.
Employment based is subdivided into
E1: You have to have a Nobel Prize, or at least be very outstanding in your field.
E2: You have to have a Master's degree
E3: You have to be a skilled worker. That means, at least two years of training - in practical terms, a bachelor's is usually required
E3-unskilled: anybody qualifies. The quota is so low, though, that in practice it's very difficult to get.
E4: religious workers. Priests and the like
E5: investors. To qualify, you have to invest at least one million dollar and create at least ten jobs for US workers.
Other categories include:
Asylum. After asylum has been grated for one year, the asylee can apply for a Green Card. Asylum is for those who had to flee immediately from persecution and showed up in the US.
Refugee. You have to be sponsored by the Red Cross or the like, and wait outside the US until the paperwork is approved.
And a few more that aren't really relevant.
Q: Can you explain that quota thing and the priority date?
There are actually two separate quotas. First, there is a quota per country. No country, regardless of how big or small, can send more than about 7% of total US immigration - that works out to approximately 25,000 immigrants per country, regardless of whether it's India, China or Liechtenstein.
The second quota applies for each category. For instance, the Family 2A (arguably the most insidious category since it tears families apart) has a quota of approximately 90,000. This is the quota for spouses of Green Card holders. There are also rumored to be about one million people who already applied and are waiting (the actual number is not published).
There also is an interaction with the per-country quota, so the actual quota depends on the applicant's country of birth.
When there are more applicants than the quota allows, a backlog develops. Applications are processed on a first-come, first serve basis. This is where the Priority Date comes in: Department of State determines how many cases they can approve, and publishes a list of priority dates. Anbody with a priority date earlier than this published date now qualifies for a Green Card.
So a Green Card holder would have to, theoretically, wait ten years or so until he can reunite with his spouse. In practice, there are other effects that change the actual waiting time, the reality is probably more like five or six years. The actual priority date for this category for May 2007 is April 8, 2002 (except for Mexican-born spouses). That's a little more than a five-year wait.
A few categories are exempt from the quota. In particular immediate relatives (spouses of US citizens etc.) are exempt, so you have to only wait a few years for the paperwork to complete. That paperwork is also prioritized, so that spouses of US citizens have to wait only about six months to two years (spouses of Green Card holders, of course, still have to wait for the quota).
Q: What categories of non-immigrant are there?
Hundreds.
The categories are first classified by letter (currently A through U) into broad categories, then by number into subcategories, and then in some cases again by letter.
- A is for diplomats
- B is for visitors
- C is for people traveling through the USA
- D is for crewmembers
- E is for people based on certain treaties
- F is for students, G is again for diplomats
- H is for guest workers
- I is for journalists
- J is for exchange visitors (usually high school students, or scientists, summer camp counselors, au pairs, but also staff for foreign attractions at Disneyland)
- K is for fiances of US citizens
- L is for intracompany transferees (managers etc. transferred from overseas)
- M is for vocational trainees
- N is for international adoptions, I believe
- O is for outstanding international workers.
- P is for athletes and entertainers
- Q is for special exchange visitors
- R is for religious workers
- S is for witnesses against organized crime
- T is for sex traffic victims
- U is for victims of certain other crimes
- V is for spouses of Green Card holders (this category has expired)
Within each group, there are several subdivisions. For instance, B-1 is for business visitors, B-2 is for tourists.
F-1 is for students, F-2 is for spouses and children of students.
H-1 is for specialty workers, H-2 is for seasonal workers, H-3 is for trainees, H-4 is for family members of any H.
Some are further subdivided. H-1B is for specialty workers, H-1C is for nurses (H-1A has been discontinued). H-2A is for agricultural workers, H-2B is for non-agricultural seasonal workers. For instance, I've seen it used for hockey players.
These are just examples.
