The Immigration Process: Answers to Common Questions
Our immigration system has three main “hooks” for those who want to come to the United States permanently: family, employment, and humanitarian grounds.
"Family" refers primarily to individuals who are beneficiaries of an approved relative petition (filed by a someone who is a U.S. citizen, lawful permanent resident, or holds one of several other specific types of visa). For instance, a U.S. citizen might file a family petition for her parents who are still living abroad.
Sometimes, a person may apply to remain permanently in the U.S. based on the terms of their employment visa. This typically includes those living and working in the U.S. with visas such as the H-1B (for high-skilled workers).
Finally, many people immigrate to the U.S. by getting humanitarian relief, including asylum/refugee status for survivors of persecution abroad; the “T visa” for survivors of human trafficking; and the “U visa” for survivors of crimes committed and reported in the U.S.
In addition to these three broad avenues for immigration, thousands of people come to the U.S. each year as “nonimmigrants."
People from around the world come to the United States for a variety of reasons. When granting permission for individuals to come into this country (a visa), our immigration system generally divides these new arrivals into two large categories: immigrants and nonimmigrants.
“Immigrant” status is attached to a person who is granted permission to permanently reside in the United States through, for instance, an approved family petition filed by a family member who is a permanent resident, U.S. citizen. Immigrants may also work without restriction and are eventually eligible to apply for U.S. citizenship.
A “nonimmigrant” is a non-U.S. citizen who enters the United States on a temporary basis and for a specific purpose: for instance, to visit or be temporarily reunited with family; go to school; or work for a specific company or other employer. The amount of time that a nonimmigrant may remain in the U.S., as well as the specific terms of their status here (for instance, whether they are allowed to work, where they can work, etc.) depends on the specific type of nonimmigrant visa they hold. In certain cases, it’s possible for for a nonimmigrant in the U.S. to apply for and adjust to immigrant status.
The U.S. Supreme Court has ruled that many, but not all, fundamental rights guaranteed by the Constitution apply to all people within U.S. borders—including aliens whose presence in this country is unlawful. See, for example, the cases of Wong Wing v. United States, 163 U.S. 228 (1896) and Zadvydas v. Davis, 533 U.S. 678,693 (2001). These rights include equal protection of law under the Fifth and Fourteenth Amendments. Additionally, the majority of persons present in the U.S. without documentation are afforded basic procedural rights in the face of deportation, including a hearing before an immigration judge, interpretation services, reasonable notice of the charges against them, etc.
You do not have to have a lawyer to apply for and obtain immigration benefits. But the immigration system can be extremely complex. Immigration attorneys are best suited to navigate immigration law and help you develop your application strategies. If you expect any difficulties with your case, it is best to talk to an immigration attorney. Note that all immigration applications and their instructions are available online for free at www.uscis.gov
Warning: There are many people who seek to take advantage of immigrants by claiming to have expert knowledge of the immigration system. Always carefully check an attorney’s credentials. Ask for a written agreement outlining what the attorney will do, and how much it will cost, before paying.
A number of immigration benefits can be obtained through employment. Whether your company is transferring you to one of its U.S. offices, you are seeking to expand your foreign business in the U.S., or you have a specific skill that is valuable to the U.S. labor market, there may be a number of visas available to you. However, employment-based immigration is also competitive and complex. To ensure the best result, speak with an immigration attorney about your employment goals.
Individuals and families may sometimes immigrate to the United States if they are the beneficiaries of a petition filed by a relative who is a U.S. citizen or lawful permanent resident. Our immigration system gives priority to immediate relatives (spouses, parents, and unmarried children under age 21) of U.S. citizens. Other categories of family relationships—for instance, siblings of U.S. citizens, spouses of permanent residents, etc.—are subject to numerical caps, and there is a complex preference system. They may need to wait years before they can apply to immigrate to the U.S. So it is always important to talk to an experienced immigration attorney about family-based immigration options.
Some individuals and families may be permitted to immigrate to the United States for humanitarian reasons. This category includes refugees/asylees fleeing persecution in their home countries as well as beneficiaries of special visas for survivors of serious crimes and human trafficking. All immigrants coming to the U.S. for humanitarian reasons must first undergo rigorous screening and comply with a number of specific rules and requirements. For that reason, it’s alway best to consult with an immigration attorney prior to applying.
Immigration to the United States is governed exclusively by federal law, most notably the Immigration and Nationality Act or “INA.” The INA is implemented by several federal agencies. The most prominent of these the Department of Homeland Security (DHS). DHS houses U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP). These three subagencies are responsible for enforcing immigration law, as well as making decisions on applications for immigration benefits. However, a number of other federal agencies play a role in implementing U.S. immigration law, including the Department of Justice, the Department of State, the Department of Health and Human Services, and the Department of Labor.