An important
objective of the immigration law is to keep families
intact and to reunite families. The primary use of
family relationships in immigration is through
petitions of U.S. citizens or permanent residents for
certain alien family members to become permanent
residents. As a separate matter, the spouses and
minor, unmarried children of aliens obtaining
permanent residence through most avenues (even those
avenues not family based) derive permanent residence
at the same time.
United States Citizens may petition for a spouse,
unmarried minor child under 21, parent, unmarried
child over 21,married child over 21, or sibling.
United States Permanent Residents may petition for a
spouse, unmarried minor child under 21, or unmarried
child over 21.
Stepchildren and adopted children may qualify under
certain circumstances. There are only a certain number
of family-sponsored permanent residence visas
allocated annually, which are distributed according to
the family relationship involved. Immediate relatives
of United States Citizens are immediately eligible to
apply for a green card. All other family members
discussed above must wait a period of time,often
several years, for their "turn" to be reached as
indicated in the Visa Bulletin published monthly by
the United States Department of State.
Obtaining approval of a family-based petition for
one of these categories is only the first of a
two-step process that culminates in adjustment of
status in the United States or visa processing towards
permanent residence outside the United States.
Certain alien spouses and children receive
conditional permanent resident status for a period of
two years rather than full lawful permanent resident
status.
Citizenship
There are several
important benefits to becoming a United States
Citizen. These include the ability to petition for the
permanent residence of immediate relatives with no
backlog and siblings,the ability to reside permanently
in the US or even outside the US without losing
status, protection from loss of status resulting from
certain bad acts or other grounds of inadmissibility
or deportability from the US,enjoyment of certain
political rights such as the right to vote, certain
tax exemptions,and entitlement to a US passport.
There are four basic avenues by which a person can
become a U.S.Citizen.
1. Birth in the US;
2. Birth abroad of at
least one US citizen parent(under certain
circumstances);
3. Naturalization;
4. Derivative
Naturalization through one's parents
In order to naturalize, one must have been a
permanent resident and resided continuously within the
US for at least 5 years immediately preceding the
filing of the naturalization application (3 years for
aliens who have been married to and living in marital
union with a US citizen).
Any absence from the US for more than 6 months or
more than 1 year could affect the residency
requirement, and it may be necessary to file an
application to preserve residence for naturalization
purposes. Regardless of absences,a naturalization
applicant must have been physically present in the US
for at least one-half the required time period.
A naturalization applicant must also show that
he/she is at least 18 years of age (with a few
exceptions),has been a person of good moral character,
is and has been attached to the principles of the
Constitution of the United States and well-disposed to
the good order and happiness of the United States, and
has the ability to read,write, and speak English in
simple words and phrases and has a knowledge and
understanding of the fundamentals of the history,
principles, and form of government of the US(with a
few exceptions).
Temporary
Employment Visas
The most commonly used
temporary employment visas are H-1B visas for
specialty occupations requiring attainment of a
bachelor's or higher degree in the specific specialty
(or its equivalent) as a minimum for entry into the
occupation in the United States, L-1 visas for certain
managers, executives and workers with specialized
knowledge being transferred to a US operation of a
multinational business, E visas for aliens from
certain countries coming to carry on substantial trade
or to develop and direct an investment enterprise in
the United States, and TN visas for certain Canadians
and Mexicans.
Also available are B-1 visas for business visitors,
H-2A visas for certain temporary agricultural workers,
Visas for aliens with extraordinary ability in
sciences, arts, education, business or athletics, P
visas for certain athletes, artists and entertainers,
and R visas for religious workers.
There are many different factors that must be
considered in determining which temporary employment
classification to apply for. These factors include the
length of stay permitted in the United States, the
nature of the US Business, the number of visas
available per year, where the application may be
filed, the current immigration status of the alien,
the qualifications and nationality of the alien, and
whether the alien wishes to eventually apply for
permanent resident status.
Employment
Based Immigrant Visas
Certain
individuals may be eligible to obtain a green card
based upon their employment in the United States.
There are different employment "preference" categories
that are distinguished by type of employment and
background of the proposed alien employee.
The first preference is for qualifying aliens with
extraordinary ability, outstanding professors and
researchers, and multinational executives and
managers. The second preference is for members of the
professions holding advanced degrees or their
equivalent and qualifying aliens with exceptional
ability. The third preference is for qualifying
workers capable of performing skilled labor requiring
at least 2 years qualified training or experience,
professionals who hold baccalaureate degrees, and
other qualified unskilled laborers. The fourth
preference is for certain special immigrants including
religious workers. The fifth preference is for certain
qualifying investors who create employment in the
United States.
Most, but not all, of the preference categories
require that the proposed alien employee be sponsored
by an actual US employer who is offering the alien a
job requiring the alien's skills. Most aliens in the
second and third preferences are required to go
through the "labor certification" process wherein the
sponsoring employer of the alien must usually
demonstrate through a process of recruiting US workers
that no minimally qualified US workers are available
to perform the job at a normal wage.
Certain aliens in the second preference whose
immigration is in the "national interest" can avoid
the labor certification and there are a few other
exceptions.
Deportation/Removal
Preceedings
Those individuals who are
unlawfully present in the United States because they
entered without inspection or overstayed an authorized
period of stay, may be placed in deportation/removal
proceedings if apprehended by an officer of the United
States Immigration & Naturalization Service.
Permanent Residents of the United States may also be
placed in deportation/removal proceedings if they
violate their permanent resident status (i.e.,being
convicted of a certain type of crime).
In order to begin deportation/removal proceedings
against an alien, the Immigration & Naturalization
Service must issue a Notice to Appear setting forth,
among other things, the nature of the proceedings and
the charges and statutory provisions for the alleged
violations.
Once all paperwork has been properly completed and
served, a Master Calendar Hearing will be scheduled
where the charges against the alien must be answered
and the form of relief, if any, set forth.
These are several forms of relief available to
aliens in deportation/removal proceedings. These
include voluntary departure, adjustment of status,
cancellation of removal for certain permanent
residents who have resided in the US continuously for
7 years and certain non permanent residents who have
been continuously present in the US for 10 years,
asylum, and withholding of removal. There are also
special forms of relief available for certain
Nicaraguans, Salvadorans, Guatemalans, and nationals
of former Soviet countries.
If an individual is eligible for relief, the merits
of their case will be presented at an Individual
Hearing before an Immigration Judge.
