ORGANIZATION OF THE IMMIGRATION SYSTEM
The U.S. immigration legal structure distinguishes most broadly between U.S. citizens and non-citizen foreign nationals, sometimes referred to as “aliens.” A third class of persons called U.S. “nationals”, typically persons born in U.S. territories that are not U.S. States, enjoy some but not all the same rights and obligations of U.S. citizens.
The United States Citizenship and Immigration Services (USCIS)-formerly the U.S. Immigration and Naturalization Service (INS)-has jurisdiction over basic administration of the U.S. immigration laws as pertains to various applications, immigration benefits and immigration status. The U.S. Constitution gives Congress the power to pass laws relating to regulation of immigration throughout the United States. The U.S. Constitution also entrusts the Executive Branch with the execution and administration of those laws. The USCIS is a sub-agency of the Department of Homeland Security. (The former agency, INS, was a sub-agency of the U.S. Department of Justice). The Homeland Security Act of 2002 (H.R. 5005; Pub. L. No. 107-296, 116 Stat. 2135.), signed by the president on November 25, 2002, mandated the reorganization of the Immigration and Naturalization Service into the new Department of Homeland Security, and this reorganization officially took place on March 1, 2003.
Whereas the former INS had responsibility for numerous functions relating to admission and control of immigrants to the U.S., the USCIS is more narrowly focused on processing petitions and applications relating to immigration status and benefits, and the granting of citizenship through naturalization. The part of the former INS that was responsible for safeguarding the U.S. borders and inspecting arriving immigrants is now a separate agency known as Customs and Border Protection (CBP), and the part of the former INS responsible for investigating immigration violations and apprehending and removing illegal aliens from the United States is now known as Immigration and Customs Enforcement (ICE).
Immigration inspectors inspect and admit foreign nationals arriving at airports and land ports of entry to the U.S. Whenever a foreign national arrives in the U.S. he/she must present documentation to request entry in a particular status, and it is the job of the Immigration Inspector to examine that documentation and admit (or refuse entry to) the arriving foreign national.
The USCIS employs “Immigration Examiners” or “Adjudications Officers” who review and adjudicate various types of petitions and applications for status. These Examiners work in local district offices or in one of the several large regional service centers. Today most types of applications for status or for eligibility for some type of status or benefit are handled at least initially by a large regional service center. The regional service centers incorporate office automation and efficiencies of scale to handle large numbers of applications and petitions. If further review or interview of an applicant or beneficiary is required, this will usually occur at a local district office. The USCIS has responsibility for processing applications to establish eligibility for many types of temporary visas, particularly employment-related visas; petitions to establish eligibility for permanent resident status; applications by persons already in the U.S. for permanent resident status; and applications for naturalization as a citizen. Once an individual becomes a U.S. citizen, his/her status in the U.S. is no longer under the jurisdiction of the USCIS.
Four large regional service centers receive and adjudicate most business- and family- based petitions. These service centers each have specific geographic jurisdictions over applicants or petitioners located in those jurisdictions:
“California Service Center” (covering California, Arizona, Nevada and Hawaii), the Nebraska Service Center (covering the states of the north and central parts of the country), the Vermont Service Center (covering the states of the northeast), and the Texas Service Center (covering the southeast and south central states). A more recently created Missouri Service Center covers some special types of applications submitted from applicants and petitioners across the U.S. When filing applications and petitions with the USCIS it is important to have accurate information regarding the correct location for filing, based on the applicable rules.
Aside from the USCIS, however, there are other agencies that have some responsibility for immigration-related matters. The U.S. Department of State, which is the ‘foreign ministry’ of the U.S., has responsibility for the issuance of visas at consulates and embassies around the world. The Department of State also monitors that permanent visa issuance is in accordance with the numerical limitations set by Congress. Hence, the Department of State issues the monthly “Visa Bulletin” that shows the availability and ‘cut-off dates’ for the various categories of permanent immigration.
The U.S. Department of Labor (DOL) oversees the programs for temporary and permanent labor certification of foreign nationals. Labor certification is often preliminarily required of a foreign national in order to be qualified to immigrate to the United States. The U.S. Department of Labor also administers the “Labor Condition Application” program that is part of the process of obtaining permission for a foreign-national employee to work in the United States under H-1B visa status.
The United States immigration laws provide for numerous categories of Non-Immigrant Visas. These range from visitors visa status to longer-term visas that permit employment, study or other special activities.
The term “visa” technically refers to a document or stamp that is placed in a foreign national’s passport by a U.S. consulate. This “visa” permits the individual to board a plane for the U.S. and apply for entry in a particular “visa class” for the purpose of carrying on some activity that is consistent with the purpose of that visa class. A visa does not automatically guarantee that a person will be admitted to the U.S. The Immigration Inspector at the airport or other port-of-entry to the U.S. must decide whether the person will be allowed to actually enter the U.S. A visa, therefore, is a ‘window of opportunity’ that allows a person to request entry between certain validity dates of the visa. When the person is actually admitted to the U.S., however, the Immigration Inspector determines how long the individual actually will be allowed to stay in the U.S. It is important to understand that the period of stay granted to a person at entry is governed by the date shown on the I-94 Card (Arrival/Departure Record), and is not necessarily the same as the expiration of the visa stamp in the passport. Conversely, a grant of stay or an extension of stay or change of status given by the USCIS to a person who is within the United States is not the grant of a visa permitting the person to return to the U.S. after travel. A person granted extension of stay or change of status may need to obtain a new visa stamp in his/her passport in order to return to the U.S. after international travel. The USCIS does not grant visas; this is done only by the Department of State.
Citizens of some countries are permitted to request entry to the U.S. without having first obtained a visa at a U.S. consulate abroad. The “Visa Waiver Program” allows individuals from certain countries to request entry as visitors for pleasure or business without first obtaining a Visitor’s Visa (B-1 or B-2). Such individuals of course must still be inspected and admitted by an Immigration Inspector, and there are certain restrictions or tradeoffs in effect for users of the “Visa Waiver Program.”
Citizens of Canada are not required to obtain visas in order to be admitted in a non-immigrant visa category. However, they too must qualify for admission in the particular visa class in which they seek entry, and in many cases this will require approval of a visa petition by the USCIS, and they must be inspected and admitted by an Immigration Inspector.
Upon entry in a temporary (“nonimmigrant”) visa class one is issued Form I-94 (Arrival/Departure Record). This form is stamped and annotated by the Immigration Inspector to show the date of arrival, visa class, and expiration date of the individual’s period of permitted stay. A portion of this form, which the non-immigrant fills out before presenting his/her passport to the Immigration Inspector, provides basic biographic data and an address of destination. The immigration law requires that an arriving alien (non-immigrants and permanent residents alike) register their address within 30 days and register any subsequent change of address within 10 days of changing address. If an arriving nonimmigrant indicates his/her address of destination on the portion of form I-94 that s/he fills out and presents to the Immigration Inspector, then this should be sufficient registration of address. If the address of destination is unknown at the time of arrival, in other words, if a general area such as “San Francisco Bay Area” is indicated as the address of destination, then the nonimmigrant would need to subsequently register his/her exact address on form AR-11 within 10 days of moving to that address. Please refer to USCIS Change of Address Requirements for more information about the address registration requirements.
PERMANENT RESIDENT STATUS
U.S. immigration laws provide a means for a foreign national to become a “Permanent Resident Alien.” A Permanent Resident is a person who, while not a citizen of the United States, is permitted to reside in the U.S. on a permanent basis. A permanent resident is permitted to be employed by any employer in the U.S. or to be self-employed. A permanent resident may apply for U.S. citizenship after satisfying certain requirements for naturalization. A permanent resident, however, may lose permanent resident status through “abandonment” if the resident is deemed to be no longer residing in the U.S. (e.g., based on extended absences from the U.S.), and a permanent resident could be ‘removed’ or deported from the U.S. based on certain provisions in the law, providing, for example, for removal of persons who have committed certain crimes, etc.
Family-Based Categories of Permanent Immigration
The immigration law provides for certain Family-Based and certain Employment-Based avenues for obtaining permanent resident status.
These are summarized below:
- The Family-Based categories of permanent resident status are based upon the foreign national (“beneficiary”) having a specified relationship to a U.S. citizen or U.S. permanent resident relative who files a petition for that beneficiary.
- With the exception of persons already admitted to the U.S. in K-1 or K-2 fiance/ee status, the first step in the process is that the U.S. relative must file a Relative Petition (Form I-130) with the proper USCIS office. If there is no visa quota backlog in the applicable category of immigration, then the I-130 might in some cases be filed concurrently with the beneficiary’s application for adjustment of status to the local office of the USCIS where the beneficiary is residing.
- Otherwise, for example, where there is a visa quota backlog or where the beneficiary is residing outside the U.S., the petition must be filed with the Regional Service Center having jurisdiction over the petitioning relative’s place of residence in the U.S. If the petitioning relative has been residing outside the U.S., then the petition can be filed with the U.S. consulate in the district of the petitioner’s residence.
The Family-Based categories of permanent immigration are:
- Immediate Relatives of U.S. citizens: This category includes spouses and minor, unmarried children of U.S. citizens (including in some cases step-children or adopted children); and parents of U.S. citizens. Each immediate relative must be petitioned for separately by the U.S. citizen petitioner .
- Family-Based First Preference: This category includes adult (over age 21) unmarried sons or daughters of U.S. citizens. (It would also include minor children of the principal beneficiary).
- Family-Based Second Preference, Category 2-A: This category includes spouses and minor, unmarried children (including in some cases step-children or adopted children) of U.S. permanent residents. (It would also include minor children of the principal beneficiary).
- Family-Based Second Preference, Category 2-B: This category includes adult, unmarried sons or daughters of U.S. permanent residents. (It would also include minor children of the principal beneficiary).
- Family-Based Third Preference: This category includes married sons and daughters of U.S. citizens. (It would also include the spouse and minor children of the principal beneficiary).
- Family-Based Fourth Preference: This category includes brothers or sisters of U.S. citizens. (It would also include the spouse and minor children of the principal beneficiary).
Employment-Based Categories of Permanent Immigration
The immigration law provides for several categories of employment-based permanent immigration. Generally, these categories are meant to provide an avenue to attain permanent resident status for persons who have skills that are deemed to be desirable or in short supply in the U.S. workforce. In most, but not all cases, a specific ‘permanent’ offer of employment is required. The procedures and timeframes for obtaining permanent resident status through an employment-based category will vary depending on whether preliminary foreign labor certification must first be obtained from the U.S. Department of Labor before procedures can be initiated with the USCIS.
For most employees, the first step to securing employment-based permanent residency will be labor certification, a process by which the Department of Labor (DOL) finds a shortage of qualified U.S. workers to fill a prospective job offer, such that a company is eligible to sponsor a non-U.S. worker. Since March 28, 2005, all labor certification applications are filed under a system known as PERM (Program Electronic Review Management). Pre-filing recruitment is still necessary under PERM, and that includes mandatory steps as well as additional recruitment steps for professional occupations. Mandatory steps include placing a 30-day online ad on the state workforce agency website; two Sunday ads in the local newspaper; and posting an internal job notice for 10 days. If in-house media is normally used by the company, then a job posting must be placed on the company’s intranet or other media. The employer is also required to perform 3 other recruitment activities, which may include: job fairs, employer website, job search website other than employer’s, on-campus recruiting, trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and television advertisements. Documentation of the recruitment process must be retained by the company for 5 years. Labor certification is based on the company’s offer of a certain job at a certain location. Any major changes to the offered job may mean that the company will have to start the whole process over from the beginning. If the employee is moved to another location outside the immediate metropolitan area, the company may need to start the process again and file a new application that reflects the proposed job opportunity. The DOL will either approve, deny, or audit the application. Once an application for labor certification has been approved, the next step is to file an Immigrant Petition (Form I-140). The company will file this petition with USCIS, enclosing the approved labor certification. This is not the green card.It places the employee in a certain category of people who can go on to apply for a green card.
The three primary employment-based categories are:
Employment-Based First Preference (EB-1): This category includes aliens of extraordinary ability (those at the top of their field), outstanding professors or researchers (typically Ph.D. holders with publications or patents), and multinational executives or managers (intracompany transferees from the L-1A nonimmigrant category).
Employment-based Second Preference (EB-2): This category includes advanced-degree professionals and aliens of exceptional ability.
Employment-Based Third Preference (EB-3): This category includes skilled workers (2 years of training/experience) or professionals (Bachelor’s degree or foreign equivalent). There are other employment-based categories, so please feel free to contact our office to discuss the particulars of a given situation. Lastly, the actual procedure of applying for a green card can be done in two ways. One method is to file the application domestically with the USCIS. This is called adjustment of status (AOS). This application may be filed concurrently with the I-140 petition depending on the priority date of the labor certification filing. (Previously, the I-140 petition must have been approved prior to filing the I-485.) In general, a priority date is established by the date of filing either the labor certification application, or in some cases, the I-140 immigrant petition. Immigrant visas are allocated in priority date order, and there are numerical limits (quotas) per country and per category. If more visa numbers are used than allotted, then a category becomes oversubscribed, and cutoff dates are imposed by the Department of State. Family members (spouse and children) are eligible to apply for permanent residency at the same time as the principal applicant. An employee must have valid H-1, L-1 or other work-authorized status to remain in the U.S. and work for the sponsoring employer while moving through the green card process, at least until the employee files the application for adjustment of status and obtains independent work authorization. Applicants may be eligible to apply for work authorization (EAD) as well as travel permission (Advance Parole). Both the EAD card and Advance Parole are valid in one- year increments from date of issuance. Please note that legislation may allow certain H visa holders to extend their status beyond the normal 6 year limit if the labor certification has been pending 365 days or more prior to the final date in H status.
The other method of applying for a green card is through the U.S. consulate in the employee’s home country. This is known as Consular Processing, or Consular Post Processing, and requires an interview abroad. The I-140 petition must be approved before the employee can proceed with this option. There is no EAD associated with consular processing, and there is no portability provision as with adjustment of status (in some cases, an employee may port his/her approved I-140 to a new employer, without starting over, if the I-485 has been pending more than 180 days and if the new job is in the same or similar occupation). We discuss which method is best suited for the employee’s situation when it is time to apply for the green card.
The immigration law provides for the admission of certain groups of persons on humanitarian grounds. These are groups of people who are fleeing persecution or perhaps other types of international crises or upheavals. Each year the Department of State and the Congress designate the particular groups and numbers of persons who might be admitted as refugees. The application process takes place at designated locations outside the United States. Persons admitted as refugees are authorized to work in the U.S. and are able to apply for permanent resident status after one year of residence in the U.S.
The immigration law provides a process by which a person who is already in the U.S. might be granted political asylum status. Such person must prove that he or she has a well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion. USCIS regulations state that such person must apply for political asylum within one year of arrival in the United States, except under special circumstances where the reasons for fearing persecution have arisen subsequently, and a person previously firmly resettled in a third country cannot be granted political asylum in the United States. Persons granted political asylum status are authorized to work in the U.S. and are able to apply for permanent resident status after one year of residence in the U.S.
Diversity Visa Immigrant Visa Program
This visa category is also known as the Diversity Lottery visa. 55,000 diversity visas are available each year to qualified foreign nationals. There is no need for sponsorship from a family member or employer. An application is submitted to the Department of State which randomly selects those persons who qualify under the DV program guidelines. Instructions for the DV program are posted on the Department of State website.
Qualifying for U.S. Citizenship
A permanent resident may qualify to apply for U.S. citizenship. The regular period of residence required to qualify for citizenship is five years (five years as a permanent resident). A person who is married and living in a marital union with a U.S. citizen may apply after 3 years of such residence. In either case, the regulations allow an individual to submit an application for citizenship no more than 90 days prior to the qualifying date of residence. A permanent resident who is the spouse of a U.S. citizen who is required to work abroad in furtherance of U.S. trade or commerce may be able to qualify for citizenship without any particular period of residence.
Some additional requirements for citizenship include physical presence in the U.S. for at least ½ the qualifying period of residence; unbroken continuity of such residence (extended absences from the U.S. of six months or more may break the continuity of residence); ability to read, write and speak English; good moral character; attachment to the Constitution and principles of the United States and willingness to take an oath of allegiance to the United States; and a basic understanding of the history and principles of the U.S. system of government.
PLEASE NOTE: This information is intended to be a general overview of the U.S. immigration structure and does not constitute legal advice applicable to a particular individual’s situation. Please contact FINNAN, FLEISCHUT AND ASSOCIATES and arrange for a consultation if you have questions about how the immigration laws and regulations apply to your particular situation.