A Summary A Summary of Current of Current

United States United States Immigration Immigration

LawLaw

U.S. immigration laws is rarely U.S. immigration laws is rarely what immigrants or citizens what immigrants or citizens

expect. Often these laws are expect. Often these laws are written as much to keep written as much to keep

immigrants out as they were to immigrants out as they were to provide orderly procedures for provide orderly procedures for letting them in. Immigration letting them in. Immigration

policies, like any other policies, like any other bureaucracies, are often not bureaucracies, are often not

logical or sensible.logical or sensible.

Many people of other nations who Many people of other nations who wish to live in the United States wish to live in the United States

and could make wonderful and could make wonderful contributions to the country are contributions to the country are

the very people kept from getting the very people kept from getting green cards and visas. In the green cards and visas. In the current political context, U. S. current political context, U. S.

immigration law is controversial immigration law is controversial among most Americans. among most Americans.

Everyone seems to agree that Everyone seems to agree that there must be some limits. No there must be some limits. No one can begin to agree on how one can begin to agree on how

these limits should work.these limits should work.

At the risk of being At the risk of being rude, most people rude, most people

have too little have too little information to information to

understand most understand most situations, or they situations, or they

have information that have information that is wrong.is wrong.

Common sources of Common sources of confusion and confusion and

misinformation are well-misinformation are well-meaning people (friends, meaning people (friends, relatives, co-workers), as relatives, co-workers), as

well as general well as general rumormongers, all of whom rumormongers, all of whom are only too happy to share are only too happy to share

their ignorance with you.their ignorance with you.

Typically individuals extrapolate the single Typically individuals extrapolate the single experience they have had with the law or with experience they have had with the law or with someone dealing with the law into a universal someone dealing with the law into a universal rule that govern all interactions for everyone rule that govern all interactions for everyone

they come in contact with.they come in contact with.

Do not universalize the Do not universalize the personal. The world is bigger personal. The world is bigger

than you and your than you and your experience.experience.

AND there can often AND there can often be a difference be a difference

between the way the between the way the rules and regulations rules and regulations are written and how are written and how things work in real things work in real

life; short-cutting the life; short-cutting the system is next to system is next to

impossibleimpossible

The visa The visa system is system is

divided into divided into two major two major classesclasses

Permanent class, often called Permanent class, often called permanent residence, are permanent residence, are

those who become those who become permanent residents of the permanent residents of the U.S. by receiving an Alien U.S. by receiving an Alien Registration Receipt Card, Registration Receipt Card, more popularly known as a more popularly known as a green card, that carries the green card, that carries the

privileges of the right to work privileges of the right to work and to live in the United and to live in the United

States permanently. There States permanently. There are numerous ways to obtain are numerous ways to obtain

a green card but all green a green card but all green cards are exactly alike.cards are exactly alike.

Temporary class is for anyone wanting to Temporary class is for anyone wanting to enter the U.S. on a temporary basis and enter the U.S. on a temporary basis and these individuals receive what is known these individuals receive what is known as a nonimmigrant visa. These come in as a nonimmigrant visa. These come in many different types and they all have many different types and they all have different privileges attached to them.different privileges attached to them.

The evolution of the term “undocumented” originates from this phenomenon.

Besides the fact that green cards are Besides the fact that green cards are permanent while nonimmigrant visas are permanent while nonimmigrant visas are temporary, the most significant difference temporary, the most significant difference between them is that the number of green between them is that the number of green

cards issued each year is limited by a cards issued each year is limited by a quota in each category, while the number quota in each category, while the number

of nonimmigrant visas issued in most of nonimmigrant visas issued in most categories is unrestricted. The quota is categories is unrestricted. The quota is what often affects the length of time it what often affects the length of time it

takes to process green cards, sometimes takes to process green cards, sometimes months and years.months and years.

A lot of people mistakenly believe that green A lot of people mistakenly believe that green cards are nothing more than work permits. cards are nothing more than work permits.

While a green card does give you the right to While a green card does give you the right to work legally in the U. S. where and when you work legally in the U. S. where and when you wish, identifying the holder as a permanent wish, identifying the holder as a permanent

resident of the U. S. is its main function.resident of the U. S. is its main function.

Years ago, the cards were green in color. Years ago, the cards were green in color. Then for a while they were red, white and Then for a while they were red, white and blue. Today they are pink. All green cards blue. Today they are pink. All green cards issued since 1989 carry an expiration date issued since 1989 carry an expiration date

and must be renewed every ten years.and must be renewed every ten years.

Green card eligibility is determined by Green card eligibility is determined by categories known as preferences and are categories known as preferences and are

available through the annual quota. available through the annual quota. Smaller numbers are available through a Smaller numbers are available through a

lottery system offered to people from lottery system offered to people from countries that in recent years have sent countries that in recent years have sent

the fewest immigrants to the U. S. , those the fewest immigrants to the U. S. , those who qualify under special immigrant who qualify under special immigrant

status, and refugees and political status, and refugees and political asylees.asylees.

The annual The annual green card green card

quota is set up quota is set up into two broad into two broad

categoriescategories

Family-Family-sponsored sponsored immigrants immigrants

and and Employment-Employment-

Based Based immigrantsimmigrants

Family-Sponsored ImmigrantsFamily-Sponsored Immigrants

An annual An annual quota of up to quota of up to 480,000 visas 480,000 visas in four in four preference preference categoriescategories

Family First PreferenceFamily First Preference

Unmarried Unmarried children children (including (including divorced), divorced), any age, of any age, of U.S. citizensU.S. citizens

Family Second PreferenceFamily Second Preference

2A: Spouses and 2A: Spouses and unmarried children unmarried children under 21 years , of under 21 years , of green card holders;green card holders;

2B: Unmarried sons 2B: Unmarried sons and daughters (over and daughters (over 21 years) of green 21 years) of green card holderscard holders

Family Third PreferenceFamily Third Preference

Married Married children, any children, any age, of U.S. age, of U.S. citizenscitizens

Family Fourth PreferenceFamily Fourth Preference Brothers and Brothers and

sisters of U.S. sisters of U.S. citizens where citizens where the U.S. citizen the U.S. citizen is at least 21 is at least 21 years of oldyears of old

Employment-Based ImmigrantsEmployment-Based Immigrants

Up to 140,000 Up to 140,000 visas in five visas in five preference preference categoriescategories

Employment First PreferenceEmployment First Preference

““Priority workers,” Priority workers,” including persons including persons of extraordinary of extraordinary ability, outstanding ability, outstanding professors and professors and researchers; researchers; executives and executives and managers of managers of multinational multinational corporations; etc.corporations; etc.

Employment Second PreferenceEmployment Second Preference Persons with Persons with

advanced degrees and advanced degrees and persons of exceptional persons of exceptional ability, coming to the ability, coming to the U.S. to accept jobs U.S. to accept jobs with U. S. employers with U. S. employers for which U. S. for which U. S. workers are in short workers are in short supply or where it supply or where it would serve the would serve the national interest. national interest.

Employment Third PreferenceEmployment Third Preference Skilled and Skilled and

unskilled workers unskilled workers coming to the U.S. coming to the U.S. to accept jobs with to accept jobs with U. S. employers for U. S. employers for which U. S. workers which U. S. workers are in short supply.are in short supply.

Employment Fourth PreferenceEmployment Fourth Preference Religious workers Religious workers

and various and various miscellaneous miscellaneous categories of categories of workers and other workers and other individualsindividuals

Employment Fifth PreferenceEmployment Fifth Preference Individual investors Individual investors

willing to invest willing to invest $1,000,000 in a $1,000,000 in a

U. S. business U. S. business

(or $500,000 in (or $500,000 in economically economically depressed areas.)depressed areas.)

10,000 green cards 10,000 green cards reservedreserved

Green Card Lottery ProgramGreen Card Lottery Program

55,000 green cards 55,000 green cards per year are given out per year are given out under the lottery under the lottery program. They are program. They are distributed by dividing distributed by dividing up the world into up the world into regions and allocating regions and allocating varying percentages varying percentages of the total green of the total green cards to each region. cards to each region.

Green Card Lottery ProgramGreen Card Lottery Program Different qualifying Different qualifying

countries are selected countries are selected each year, based on each year, based on which ones, and which which ones, and which areas of the world, areas of the world, sent the fewest sent the fewest number of immigrants number of immigrants to the U. S. during the to the U. S. during the previous five year previous five year period, in proportion period, in proportion to the size of their to the size of their population. population.

Special Immigrant StatusSpecial Immigrant Status

Occasionally, laws Occasionally, laws are passed making are passed making green cards green cards available to people available to people in “special” in “special” circumstances, circumstances, which are not which are not included in the included in the preference systempreference system

Some of the current special Some of the current special immigrant categories include. . .immigrant categories include. . .

Foreign workers who were formerly Foreign workers who were formerly longtime employees of the U. S. longtime employees of the U. S. government or the American Institute in government or the American Institute in TaiwanTaiwan

Foreign workers who have been Foreign workers who have been employees of the U. S. consulate in Hong employees of the U. S. consulate in Hong Kong for at least three yearsKong for at least three years

NATO civilian employeesNATO civilian employees Panama Canal Treaty employeesPanama Canal Treaty employees Foreign medical graduates who have been Foreign medical graduates who have been

in the U. S. since 1978in the U. S. since 1978

Refugee and Political AsyleesRefugee and Political Asylees The two are often The two are often

thought of as the thought of as the same category but are same category but are different.different.

A refugee receives A refugee receives permission to come to permission to come to the United Stated in the United Stated in refugee status before refugee status before actually arriving.actually arriving.

Political asylum is Political asylum is granted only after granted only after someone has someone has physically entered the physically entered the U. S. Usually either as U. S. Usually either as a nonimmigrant or an a nonimmigrant or an undocumented alien.undocumented alien.

Refugees and AsyleesRefugees and Asylees

To qualify as a To qualify as a refugee or asylee, refugee or asylee, you must have you must have experienced experienced persecution in the persecution in the past and have a past and have a well-founded fear well-founded fear of persecution in of persecution in the future in your the future in your home countryhome country

Refugees have an Refugees have an annual quota annual quota established each established each year by the year by the president. The president. The president also president also decides how the decides how the total will be divided total will be divided among various among various regions. regions.

Refugees and AsyleesRefugees and Asylees Applications and their approval are Applications and their approval are

dependent on proof that you can pay for dependent on proof that you can pay for your transportation to the U. S. and have a your transportation to the U. S. and have a means of support once you arrive. If you means of support once you arrive. If you are married or have children under the are married or have children under the age of 21, your status is also typically age of 21, your status is also typically granted to your family, if proof of that granted to your family, if proof of that relationship is available. Refugees are relationship is available. Refugees are eligible to apply for a green card after one eligible to apply for a green card after one year of residency in the United States; year of residency in the United States; Asylees are eligible one year after the Asylees are eligible one year after the designation is granted (limited to 10,000 designation is granted (limited to 10,000 annually.) annually.)

Refugees and AsyleesRefugees and Asylees

Applications are approved on a first-Applications are approved on a first-come first-served basis. It is not come first-served basis. It is not unusual for qualified refugees to end unusual for qualified refugees to end up on a waiting list. The refugee up on a waiting list. The refugee quota cannot be accurately forecast quota cannot be accurately forecast because the number of slots because the number of slots available each year changes. Some available each year changes. Some countries may get many refugee countries may get many refugee numbers in a given year while others numbers in a given year while others receive practically none. There is no receive practically none. There is no quota for asylees.quota for asylees.

From 1998 to 2002, an average of 65,833 From 1998 to 2002, an average of 65,833 refugees arrived annually. This number refugees arrived annually. This number

has declined over the past few years with has declined over the past few years with only about 31,206 arriving annually only about 31,206 arriving annually

between 2002 and 2004.between 2002 and 2004.

9/11/01 resulted in a decrease 9/11/01 resulted in a decrease in the authorized ceiling from in the authorized ceiling from 80,000 in 2001 to 50,000 in 80,000 in 2001 to 50,000 in

2004. 2004.

Current Immigration Current Immigration Law ExclusionsLaw Exclusions

Current law states that a person who Current law states that a person who overstays a U. S. visa for more than 180 overstays a U. S. visa for more than 180 days, is barred from re-entering the U. S. days, is barred from re-entering the U. S.

for three years. A person who overstays a for three years. A person who overstays a U. S. visa for more than a year is barred U. S. visa for more than a year is barred from entering the U. S. for ten years. from entering the U. S. for ten years.

If the three or ten year bar If the three or ten year bar applies to a foreign national applies to a foreign national who marries a U. S. citizen, a who marries a U. S. citizen, a waiver is possible but unlikely.waiver is possible but unlikely.

ExcludedExcluded

Foreign nationals with one or more Foreign nationals with one or more criminal convictions in their past are criminal convictions in their past are typically ineligible to receive an typically ineligible to receive an immigrant visa to enter the U.S. immigrant visa to enter the U.S. (non-immigrants are likewise barred, (non-immigrants are likewise barred, although the bar is not quite as although the bar is not quite as broad as it is for immigrant visas). broad as it is for immigrant visas).

ExcludedExcluded Drug traffickers are ineligible for a visa, even if there has Drug traffickers are ineligible for a visa, even if there has

been no conviction, as long as the consular or immigration been no conviction, as long as the consular or immigration officer knows or has reason to believe that the visa officer knows or has reason to believe that the visa applicant has been involved in trafficking. applicant has been involved in trafficking.

A person coming to the U.S. to engage in prostitution, or A person coming to the U.S. to engage in prostitution, or who has engaged in prostitution within ten years of their who has engaged in prostitution within ten years of their application for entry, is inadmissible, even if there was no application for entry, is inadmissible, even if there was no criminal conviction. criminal conviction.

An amnesty or parole does not remove the crime from An amnesty or parole does not remove the crime from calculation of the bar. Such crimes are treated for U.S. calculation of the bar. Such crimes are treated for U.S. immigration purposes exactly as though the conviction immigration purposes exactly as though the conviction remained in place. remained in place.

ExcludedExcluded Similarly, a “deferred adjudication” whereby the Similarly, a “deferred adjudication” whereby the

record of the offense is expunged form the record of the offense is expunged form the defendant’s record is nonetheless regarded as a defendant’s record is nonetheless regarded as a conviction under U.S. immigration law. conviction under U.S. immigration law.

If the foreign national has admitted to the crime, If the foreign national has admitted to the crime, even if there was no conviction, he or she will be even if there was no conviction, he or she will be barred from receiving a visa (this can even occur barred from receiving a visa (this can even occur during the medical exam preceding the consular during the medical exam preceding the consular interview if the unwitting applicant admits to prior interview if the unwitting applicant admits to prior substance abuse or some other crime). substance abuse or some other crime).

Health-Based IneligibilityHealth-Based Ineligibility The following communicable diseases of public health significance The following communicable diseases of public health significance

render a person inadmissible: render a person inadmissible: Chancroid Chancroid Gonorrhea Gonorrhea Granuloma inguinale Granuloma inguinale Acquired immune deficiency syndrome (HIV/AIDS) Acquired immune deficiency syndrome (HIV/AIDS) Hansen’s disease (infectious leprosy) Hansen’s disease (infectious leprosy) Lymphogranuloma venereum Lymphogranuloma venereum Infectious state syphilis Infectious state syphilis Infectious tuberculosis (TB) (clinically active) Infectious tuberculosis (TB) (clinically active) In addition, the following physical or mental disorders can render a In addition, the following physical or mental disorders can render a

person inadmissible: person inadmissible: Current physical or mental disorders, with harmful behavior Current physical or mental disorders, with harmful behavior

associated with the disorder. associated with the disorder. Past physical or mental disorders with associated harmful Past physical or mental disorders with associated harmful

behavior that is likely to recur or lead to other harmful behavior. behavior that is likely to recur or lead to other harmful behavior.

Health-Based IneligibilityHealth-Based Ineligibility Waivers are possible for most of the health grounds of Waivers are possible for most of the health grounds of

inadmissibility except for drug abuse or addiction. In evaluating all inadmissibility except for drug abuse or addiction. In evaluating all such waivers, the government adjudicator is obligated to ensure such waivers, the government adjudicator is obligated to ensure that the immigrant will not pose a threat to the health or welfare that the immigrant will not pose a threat to the health or welfare of the U.S. public, and that there will be no financial cost incurred of the U.S. public, and that there will be no financial cost incurred by any level of government agency or by U.S. taxpayers due to by any level of government agency or by U.S. taxpayers due to the admission of the immigrant (except in such cases where an the admission of the immigrant (except in such cases where an authorized U.S. agency has given its prior consent). authorized U.S. agency has given its prior consent).

In addition, HIV applicants have a particularly high burden with In addition, HIV applicants have a particularly high burden with regard to the “public charge” aspect of the waiver. The applicant’s regard to the “public charge” aspect of the waiver. The applicant’s U.S. sponsoring relative must demonstrate financial resources U.S. sponsoring relative must demonstrate financial resources and/or health insurance to absorb the estimated $500,000 plus and/or health insurance to absorb the estimated $500,000 plus lifetime cost of health care for an AIDS sufferer before the waiver lifetime cost of health care for an AIDS sufferer before the waiver will be further be considered. A person with a physical or mental will be further be considered. A person with a physical or mental disorder which threatens the safety of the applicant or others may disorder which threatens the safety of the applicant or others may receive a waiver if they submit documentation that convinces the receive a waiver if they submit documentation that convinces the government that they are fully recovered. government that they are fully recovered.

Health-Based IneligibilityHealth-Based Ineligibility

Harmful behavior is behavior that Harmful behavior is behavior that may pose, or has posed, a threat to may pose, or has posed, a threat to the property, safety or welfare of the the property, safety or welfare of the applicant or others. A record of applicant or others. A record of driving under the influence of alcohol driving under the influence of alcohol (DUI or DWI) can lead to an (DUI or DWI) can lead to an investigation by the government to investigation by the government to determine whether an immigrant has determine whether an immigrant has a “mental disorder associated with a “mental disorder associated with harmful behavior.” harmful behavior.”

Other ExceptionsOther Exceptions Terrorist activities Terrorist activities Membership in a Communist or any totalitarian Membership in a Communist or any totalitarian

party: party: Espionage or sabotage against the U.S. Espionage or sabotage against the U.S. Illegal export of sensitive U.S. technology, goods, Illegal export of sensitive U.S. technology, goods,

or information or information Particularly severe violations of religious freedom Particularly severe violations of religious freedom

by foreign government workers by foreign government workers Money laundering Money laundering Efforts directed to control or overthrow the Efforts directed to control or overthrow the

Government of the United States by force, Government of the United States by force, violence, or other unlawful means. violence, or other unlawful means.

Participants in Nazi persecutions or genocide Participants in Nazi persecutions or genocide Adam Walsh Child Protection and Safety ActAdam Walsh Child Protection and Safety Act