Q: Who is permitted to enter the U.S. from a foreign country?
A: U.S. law establishes four principal means by which a foreign national can legally enter the country: employment-based immigration, family-based immigration, refugee or asylee status and the diversity lottery. Each category covers a variety of situations, some allowing permanent immigration and some only temporary stays in the country. The government allows temporary or permanent immigration for economic reasons such as filling jobs U.S. workers are not taking, and for humanitarian reasons such as reuniting families, or granting asylum or refugee status. The law establishes yearly quotas for some categories.
Q: Which family members may sponsor relatives for U.S. immigrant visas for permanent entry?
A: With some exception and restriction, a U.S. citizen may sponsor a spouse, parent, sibling, minor child or adult child (regardless of marital status), or fiancé (e) for an immigrant visa, known popularly as a green card. Additionally, an alien in the U.S. with lawful permanent resident status (a green card holder) may sponsor a spouse, minor child or adult unmarried child. Citizens and permanent residents who sponsor relatives for immigration must have a certain level of earnings and agree to legally support their incoming family members.
Q: How can I permanently live in the United States?
A: If you are looking to become an immigrant who permanent lives in the country, you need to seek status as a permanent resident. Those who are granted this permission are given what is commonly referred to as a “green card.” To obtain this status you can either seek a green card through your relatives, through a job, through status as a refugee or one of the other qualifying ways.
Q: How can a foreign national gain lawful-permanent-resident (LPR) status?
A: The two main ways a foreign national can become an LPR is to be sponsored by 1) a family member already living in the U.S. as a citizen or lawful permanent resident; or 2) an employer for a U.S. job that falls into a particular category set out by federal law. Foreign nationals also may be eligible to register for the diversity lottery and those with fear of persecution at home may qualify as refugees or asylees.
Q: What are some factors that are considered by the U.S. Citizenship and Immigration Services (USCIS) in granting an individual immigration status?
A: Factors considered by the USCIS include: Whether the applicant has an immediate relative who is a U.S. citizen or lawful permanent resident; whether the applicant has a permanent employment opportunity in the U.S., and whether that employment fits under one of the five eligible employment categories; Whether the applicant is making a capital investment in the U.S. that meets certain dollar thresholds, and that either creates or saves a specified number of jobs; and Whether the applicant qualifies for refugee status as an individual who suffers or fears persecution on the basis of race, religion, nationality, political view, or membership in a certain group in his or her country of origin.
Q: If a foreign national is ineligible for lawful permanent resident status, are there other ways to enter the U.S. legally?
A: Foreign nationals may be able to enter the U.S. for a temporary period of time with a nonimmigrant visa. However, to receive a nonimmigrant visa, the foreign national must meet the requirements for one of the nonimmigrant categories set out by federal law. These categories include, among others, those wishing to visit family members or friends in the U.S., travel, receive medical treatment, conduct business or diplomacy, enroll in technical schools or universities, participate in cultural or educational exchange programs, or seek qualified temporary employment.
Q: If I have been granted a temporary work visa, may my spouse and child accompany me to the U.S.?
A: The dependent spouse and minor children of an applicant who has received a temporary work visa may be eligible to join the temporary worker in the U.S. However, the spouse and children will need to apply and be approved for the appropriate type of nonimmigrant visa in order to travel to the U.S. U.S. Under most circumstances, the spouse and children will not be allowed to work while in the U.S.
Q: How do I extend my stay in the U.S.?
A: Many nonimmigrant visa categories allow for extensions of time in the U.S., but normally government permission to stay beyond the original time periods granted is discretionary, not automatic. To extend the amount of time a foreign national may remain in the U.S. on a nonimmigrant visa eligible for extension, he or she must apply with the U.S. Citizenship and Immigration Services (USCIS). The application should be filed well in advance of the foreign national’s last authorized day in the U.S. to avoid falling “out of status.” Normally, to be eligible for an extension, the foreign national may not have violated any of the terms of his or her nonimmigrant visa, and may not have committed any crime or otherwise broken the law while in the U.S.
Q: Is there a limit on the number of people officially designated as refugees and asylum seekers on humanitarian grounds each year?
A: The president sets an annual limit on the number of refugees (coming from outside the U.S.), but not on the number of asylum seekers (already in the U.S.). The president works with Congress to determine the number of refugees that should be admitted to the U.S. for resettlement. To qualify as a refugee or asylee, an individual must have a “well-founded fear of persecution” at home for his or her religion, race or national origin, politics, or social-group membership.
Q: What is the diversity (DV) lottery?
A: The diversity lottery is a Department of State program which issues up to 55,000 diversity visas (DVs) each year to foreign nationals from regions and countries with low immigration rates to the U.S. Foreign nationals who meet the criteria for the lottery are placed into a pool and randomly selected by a computer program for the available visas every year. Only people from countries that sent less than 50,000 immigrants to the U.S. over the past five years are eligible for the lottery.
Q: What is nationalization?
A: Nationalization allows an alien to become a U.S. citizen. To be allowed to nationalize, a person must almost always have already been a lawful permanent resident (LPR) for a particular length of time. Becoming a citizen, however, is not a requirement of LPR status. Some people stay in the U.S. for years as permanent residents but not citizens. With some exception, to be allowed to nationalize, the individual must be of “good moral character”; take an oath of allegiance to the U.S.; pass English literacy, history and government tests; and interview successfully with a government official to establish the right to citizenship.
Q: If I become a U.S. citizen, what are the privileges that I will experience?
A: There are three primary privileges that citizens are able to experience. These include being able to vote in local, state and national elections; having the ability to obtain a passport; and sponsoring relatives in their efforts to become a permanent resident.
Q: What is the basis for being deported? What are the consequences of deportation?
A: Deportation (or removal) occurs when an alien is found to have violated certain immigration or criminal laws, consequences being that the alien forfeits his or her right to remain in the U.S., and is usually barred from returning.
Q: What are deportable offenses?
A: Deportable offenses are those actions for which an alien may be forced to leave the U.S. and return to his or her home country. Some deportable offenses include using fraudulent documents to enter the U.S., providing material misrepresentations (like marriage fraud) to receive a visa, committing certain types of crimes (like most drug crimes, aggravated felonies, domestic violence and child abuse, many gun offenses and more), posing a threat to national security, engaging in terroristic activity, helping others enter the country illegally, overstaying a visa and voting illegally. For a complete list, see 8 U.S.C.A. § 1227.
Q: How is the deportation process initiated?
A: The Bureau of Immigration and Customs Enforcement issues a Notice to Appear (NTA) stating the reason why the alien should be deported or removed. The NTA is served to the alien and is filed with the immigration court. A hearing is scheduled, at which an immigration judge will determine if the information in the NTA is correct. If it is, removal of the alien will be ordered.
Q: Can a deportation or removal order be appealed?
A: Yes. The alien has 30 days to appeal the decision to the Board of Immigration (BIA). If the BIA decides against the alien, the matter can be appealed to the U.S. Court of Appeals. Finally, if the Court of Appeals also finds against the alien, the matter can be appealed to the U.S. Supreme Court.
Q: Under what circumstance will a foreign spouse’s permanent resident status in the U.S. be conditional?
A: A spouse’s permanent resident status will be conditional if it is based on a marriage that was less than two years old from the day the permanent resident status was granted. To remove the conditions, the spouse must establish that the purpose of the marriage was not to evade the U.S. immigration laws.
Q: Under what circumstance will a foreign fiancé(e), who has been admitted into the U.S. for the purpose of getting married, be required to leave the U.S.?
A: If the marriage to the U.S. citizen who filed the petition to permit the fiancé(e) into the U.S. does not take place within 90 days of entering the U.S., the fiancé(e) will be required to leave the country.
Q: Can a U.S citizen file an application to adopt a foreign-born child before the citizen has identified a child to adopt?
A: Yes. A married U.S. citizen, or an unmarried citizen who is at least 24 years of age and will be at least 25 when the petition is actually filed, may file a Form I-600A, Application for Advance Processing of Orphan Petition, to speed up the adoption process.
Q: What is the basic law that governs immigration?
A: The federal Immigration and Nationality Act provides the basis for U.S. immigration law.
Q: Can a fee for immigration related services be waived?
A: Yes. The U.S. Citizenship and Immigration Services (USCIS) bureau has discretion to waive a filing fee if the applicant can establish that he or she is unable to pay. In order to have the USCIS consider waiving a fee, the applicant must follow specific instructions, including completion of a form for review by the USCIS.
Q: I’m a foreign national studying in the U.S., can I stay within the country following graduation?
A: To stay in the country following graduation, a student will need to obtain an H-1B temporary worker visa. Typically, graduates who work in a specialty field (such as a medical professional or engineer) will be able to obtain this visa with ease. To ensure that this process moves smoothly, it is recommended that students apply for this visa as early as possible to avoid penalties.
Q: If I am a student with an F-1 visa, what are the privileges I am eligible for?
A: Those who are living within the country with an F-1 visa are able to enroll as a full-time student at an educational institution, such as a college, university or an academic high school. They may also transfer between schools, travel in and out of the country and bring dependents with them. They may also work either on-campus or off-campus if for purposes of training or for mandatory financial needs.
If you did not see your question addressed above, please call the Chicago Immigration Pros at Alliant Law at (708) 366-9900 and we can do a “no-obligation” consultation about your immigration challenges and do our best to answer your questions.