CHAPTER 28
UNITED STATES IMMIGRATION LAW
This chapter is intended to provide a brief overview of the law and practice relating to immigration into the United States.
Overview of current immigration policy Since the terrorist attacks on the World Trade Center and other locations on September 11, 2001, United States immigration policy has become increasingly shaped by national security concerns, as opposed to the traditional concerns of family unification, attracting highly educated and skilled workers, attracting investment, and humanitarian concern for displaced or persecuted persons.
Whilst many types of visas remain, for better or worse, largely self-help projects, sweeping reform of U.S. immigration law, particularly in 1996 and again following the September 11 events, has made U.S. immigration procedures progressively more difficult to negotiate on one’s own and the price of mistakes has become progressively higher.
Types of visa
B1 and B2 Visas (Visitors for business or pleasure) Tourist and business visitor visas represent the largest number of visas issued. Applying for such visas remains largely a self-help endeavor.
B1 Visas are for temporary business visitors that are attending meetings, conferences, sometimes short training sessions, signing contracts, buying supplies and other short business visits to the United States. B-2 visas are pleasure visitors that enter the U.S. for holiday, visit family or friends, and obtain medical treatment.
The most common basis for refusal to issue a B1 or B2 visa is the applicant’s failure to overcome the legal presumption that the applicant intends to remain in the United States (i.e., that they have immigrant intent). This legal presumption can only be overcome with substantial evidence of the applicant’s strong ties to his home country. In general, applications are made directly to the United States Consulate with jurisdiction over the applicant’s residence. Note that it is very difficult for young, single, unemployed or marginally employed applicants to successfully overcome the presumption of immigrant intent, and to obtain the issuance of a B-2 or B-1 visa.
Educational based Non-Immigrant Visas These visas are for persons to come for temporary study in the U.S. in an approved school, university, college, or other approved institution in the United States. Generally, such visas cannot be used for primary and in only some limited cases secondary public education in the United States.
Generally, most foreign nationals apply for F and rarer M category visas for approved courses of study in the U.S. These visas always require that the applicant has applied for and been approved for such course of study before applying for the visa. From there the educational institution will provide the proper documentation to apply for a visa and generally act as the sponsor for the visa application.
J category visas are also in many ways an educational based non-immigrant visa that allows a foreign national to attend an approved Exchange Visitor Program in the United States. The goal of these programs is to allow a foreign national to come for a short visit to the United States in an educational, travel, and/or employment capacity to experience the culture of America and obtain skills and experiences for the visitor to take back to their home country.
Employment based Non-Immigrant Visas These visas give no right of permanent residence but do allow the visa holder to live and work in the United States for, in some cases, as long as 6 or 7 years.
Predictably, these visas are almost always for well-educated and/or highly skilled applicants as well as senior managers and executives of multinational corporations. There are many different types of non-immigrant employment based visas depending on the job involved and the skills of the applicant. Generally, the two most commonly used are the H1-B and L1/L2 visas.
The H1-B visa is generally reserved for professionals with a university degree or above, in such occupations as: IT professionals, teachers, and persons engaged in architecture, engineering, physical sciences, etc.
Senior managers and executives of companies with offices both in the United States and abroad may qualify to L1/L2 visas. The advantage of both H1-B and L1/L2 visas is that the legal presumption of immigrant intent does not apply, and therefore cannot constitute grounds for a visa refusal. Many people live and work in the United States in H1-B or L1/L2 status while their permanent residence petitions are pending (a process that may take years).
There are other more specialized visas for certain workers or employers. These include O visas for foreign nationals with demonstrably extraordinary abilities in the Sciences, Arts, Education, Business or Athletics. P visas are for Performing athletes, artists, and entertainers.. There are certainly many more categories for non-immigrant workers it is best to contact our office for the latest information.
Employment based immigration (Permanent Residence) In order to attract employees with valuable skills in areas for which there is a shortage of American employees, various avenues are available. The petitioning party is the United States employer who wishes to sponsor the foreign national for Permanent Residence. An offer of employment must be tendered to the foreign national prior to commencing the immigration process.
Currently since 2005, these processes go through generally what is known as the PERM (Program Electronic Review Management) process from the U.S. Department of Labor, which is a generally electronic first step in such applications to make sure that a foreign worker is not displacing equally qualified U.S. citizens or current Permanent Residents. The PERM process to obtain a Labor Certification is just one of the steps in these complicated cases that involve multiple government agencies including processing by U.S.C.I.S. (U.S. Citizen and Immigration Services) and in many cases a U.S. Embassy or Consulate for final visa processing. These employment based visas depending on the employment and the employee are subject to a system of preference categories to encourage highly skilled immigration. Depending on the type of worker many of these visas are subject to numerical yearly caps on the number of visas of that preference category that can be issued.
Employment based immigrant cases are, and are likely to remain for the foreseeable future, time consuming, burdensome and highly technical but, do offer a viable immigration alternative for those with no family connections to the United States. If you are interested in an employment based petition, please contact our office for the latest information.
Investment based Non-Immigrant Visas E visas are generally a treaty based visa for traders and investors to obtain non-immigrant visas based on certain investments, businesses, and other projects in the United States.
The E visa is based on a treaty of commerce and navigation between the United States and other countries throughout the globe. These treaties allow foreign nationals from a treaty country to obtain E visas for the United States. Please note that only citizens of a treaty country may obtain such visa benefits. Currently, there are many countries that have treaties in U.S. and the list of treaty countries is always changing and it is best to contact us to see if these visas are an option for you.
The E-1 visa is for Treaty Based Traders. Treaty Traders visas are for foreign nationals who engage in “substantial” trade including goods, services, and technology with the United States with over 50% of trade of the applicant between the United States and the treaty country. The visas are for applicants in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Thus, these visas are not for workers of ordinary skill or unskilled capacity.
The E-2 visa is for Treaty Based Investors. Treaty Investors visas are for foreign nationals, persons and business entities, who engage in a substantial investment in the United States in a real operating enterprise that is not speculative or idle. The investor must have control over the investment and the investment must be at risk at the time of application for the visa. The E-2 visa is for the principal investor and also for workers involved employed in a supervisory, executive, or highly specialized skill capacity.
E visas also allow for minor children and spouses to obtain dependent E visas to travel to the United States.
Investment based immigration (Permanent Residence) EB-5 visas are Immigrant visas that allow persons who make substantial investments in the United States to obtain Permanent Residency in the United States for them and their family based on such investments.
EB-5 visas are for investments in two different types of projects in the United States that allow for a person to apply for Permanent Residence status based on such investments. Generally, the minimum amount of investment is $1 Million U.S. Dollars or more in an investment project in a new enterprise or troubled enterprise that creates or preserves at least 10 jobs per application have been created or will be created in a reasonable time through the investment. The minimum investment amount is reduced to $500,000 U.S. Dollars in Targeted Employment Areas which are generally areas of high unemployment or specific rural areas. Also, the EB-5 program allows investors to invest in what are known as Regional Centers where third party managed investment create the requisite job requirements for the application. The Regional Centers all have different investment profiles regarding type of investment, risk of investment, and estimated returns on investment. In all of these programs and investment levels, the investments must be kept for at least five years to keep Permanent Residence status.
The EB-5 program is a significantly complex immigration matter and generally interested persons should contract our office for all of the program details and requirements. These cases generally are complex and time consuming and should be done with the assistance of legal counsel. For many people with some economic means without family in the United States these programs are the best way to obtain their dreams of living in the U.S. as a Permanent Resident.
Family based immigration (Permanent Residence) Despite increased emphasis on security concerns, family reunification remains an important objective in United States immigration policy, giving priority to family members of United States citizens and Legal Permanent Residents (LPRs or “green card” holders). Family sponsored immigration falls into two primary categories.
Highly favored under U.S. law, there is no numerical limit or quota on how many may become LPRs in any given year:
1. Spouses of United States citizens.
2. Minor children (being unmarried and under 21 years of age) of United States citizens. Note that “child” is strictly defined in law and may exclude some persons considered by the citizen to be their child.
3. Parents of a United States citizen. The sponsor must be over 21 years of age to sponsor his/her parents.
4. Spouses of deceased United States citizens. They must have been married for at least two years at the time of death.
These categories are subject to quotas or limits in the numbers of visas made available each year. Since only limited numbers of visas are available each year, Congress has divided these groups of relatives into “Preference” categories, ranking them in the order for which they are give priority for immigration to the United States. The higher the preference, the more quickly a visa can be allotted to the applicant. In addition to the broad preferences set out below, a complex “priority date” system based upon the date of filing and the applicant’s country of origin can further influence his place in the visa queue. After gathering all the relevant facts of the case, it is often possible to provide a reasonable estimate of how long the applicant relative must wait for a visa. The preference categories are:
· F2A - Spouses or children (under 21 years of age) of a Legal Permanent Resident.
· F2B - Unmarried child (21 years of age or older) of a Legal Permanent Resident.
While visas are available relatively quickly for immediate relatives of United States citizens, each applicant must qualify on his own merits. Conversely, although waiting periods apply to close relative preference cases, derivative beneficiaries (i.e., spouses and minor children of the principal beneficiary) are generally given permanent residence at the same time as the principal beneficiary and without additional, individual petitions being filed.
K Visas Technically a non-immigrant visa, a K visa is, in fact, a “hybrid” visa in that it permits temporary entry into the United States but, with the specific expectation that the holder will change their status to that of Permanent Resident, after certain requirements are met. While K visas take longer to process than some other non-immigrant visas (such as B-2 tourist visas), they generally take less time to process than most forms of direct immigrant visas.
In order to be eligible for a K-1 visa the couple must:
1. have previously, physically met, in person, within the two year period preceding the date of filing the petition;
2. have a bona fide intention to marry within 90 days of the alien’s entry into the US; and
3. be legally capable of entering into a valid marriage.
K-2 visas allow the alien fiancé(e)’s minor children to either accompany the alien fiancé(e) to the United States or follow to join her. The alien fiancé(e)’s K-2 children will receive Permanent Resident status at the same time, and under the same conditions as the alien fiancé.
Diversity Immigration (The “Green Card Lottery”)
Popularly known as the “green card” lottery, approximately 50,000–55,000 visas are issued annually in a random drawing to individuals from countries judged to be under-represented in the total United States immigrant population.
Applications are accepted during a one-month application period each year, generally in October. Although many people do file Diversity Lottery applications each year without assistance, millions of applications are rejected (with no notice to the applicant) and are not included in the drawing, because of minor technical mistakes in the application or filing. There is no filing fee payable to the United States government and the application and filing is relatively straight forward, provided that the applicant understands the rules.
Although, no reliable statistics are available, most observers believe that an applicant’s chances of winning a green card in the Diversity Lottery is about 1 in 40. Many people prefer to obtain assistance in filing their applications because the cost of doing so is relatively low and the process is fairly straightaway when professional advice is sought. If a person is selected in the “green card lottery”, his spouse and minor children will generally be given Permanent Residence at the same time. The principal factor limiting eligibility is that the applicant must have at least completed high school education, or its equivalent.
Revised November 2012