Immigration is one of the most complex areas of law, where individuals who often don't speak English as a primary language are somehow expected to understand a complex series of laws and regulations (from various government agencies and courts) which often confound American attorneys.

What - and who - controls immigration law

Most of US immigration law is contained in the Immigration and Nationality Act or "INA" - the set of federal laws controlling immigration, primarily under Title 8 of the United States Code. (To see more on immigration laws, see CFR Sections 6, 8, 20, 22, 28 and 42.)

There are several other sources of immigration law: decisions of federal courts as well as immigration courts and other administrative reviewing bodies. Many government agencies handle different aspects of US immigration law. The Department of Homeland Security (DHS) was created to replace the old Immigration and Naturalization Service (INS). DHS then created three departments:

  • US Citizenship and Immigration Services (USCIS) -Grants immigration benefits, such as visas.
  • Immigration and Customs Enforcement (ICE) - Enforces immigration laws within the US.
  • Customs and Border Protection (CBP) - Handles immigration enforcement at US borders.

However, the various DHS agencies are not the only federal agencies dealing with immigration.

The US Department of State (DOS) controls availability of the limited quota of Immigrant Visas permitted by federal statute on an annual basis. The DOS also runs US Embassies and Consulates abroad, where foreign nationals process for nonimmigrant visa stamps and in many cases permanent residence.

The US Department of Labor (DOL) handles aspects of immigration which impact employment-based immigration, including notification processes required for several types of nonimmigrant visas and a process for employment based permanent residence.

Other federal agencies have regulations or policies pertaining to immigration - these include the Social Security Administration (who can get a Social Security Card and Social Security Benefits with regard to immigration status), and the Internal Revenue Service (tax obligations depending on status and time spent in the US), among others.

Additionally, various states and municipalities (cities, towns, villages, etc.) have laws dealing with various aspects of immigration.

Status

"Status" in the immigration context refers to an individual's legal position with regard to their presence in the US "In status" means that an individual has a legal right to be present in the US under existing law, and "out of status" means that an individual does not currently have a legal right to be present in the US.

A person can be "in status" in a number of different ways, among them: by having US citizenship, by having permanent residence (a "green card"), by having a valid unexpired nonimmigrant visa (there are several types of these) without having violated the terms of the visa, by having been Paroled into the US for certain specific purposes, by being granted refugee or asylee status, etc.

However, just because a foreign national's nonimmigrant visa has not yet expired doesn't necessarily mean that they are still in status. While expiration of a nonimmigrant visa's validity period does leave a foreign national out of status, a foreign national can also become out of status by violating the terms of his or her nonimmigrant visa. Once a foreign national is out of status, there are only a very few, limited ways to get back into a legal status.

The most commonly applicable ways include filing an Adjustment of Status application based on an "immediate relative" petition (most often marriage to a US citizen) and/or through 245(i) eligibility. Assuming these - and a few other rare situations - do not apply, once an individual has become out of status through expiration of one nonimmigrant visa, the only way to regain valid legal nonimmigrant status is to leave the US and re-enter.

Popular myth says that anyone can obtain legally valid status to be in the US if they simply follow established immigration procedures and US immigration law. Unfortunately, this isn't the case. Many people simply have no way to become legal in the US under existing immigration law. Only by speaking with an attorney about their options can they truly determine a person's situation.

The different ways a person can be in valid status (or "out of status")

There are many ways that a person can be in lawful status in the US. These include:

  • Nonimmigrant Visa - a temporary visa valid for a finite period of time, and granted for a specific purpose (visiting/tourism, study, employment of a certain type, etc.).

  • Asylees/Refugees - Foreign nationals unable or unwilling to return to their native country due to a well-founded fear of persecution or because the person's life or freedom would be threatened upon return. An Asylee applies for this status while already in the US, a Refugee applies form outside the US and is admitted in this status. Both may eventually apply for permanent residence.

  • Permanent Residence - also known as a "green card," this allows someone to remain in the US for an unlimited period of time, and pursue any legal activity (school, work for any employer, etc.) Permanent Residence can be lost by committing certain acts or through abandonment.

  • US Citizenship - Allows all the privileges of permanent residence, plus the ability to vote in the US and certain other rights. Can't be lost through abandonment or committing certain criminal acts (although, if obtained through naturalization, can be taken away if determined that a foreign national lied on an application, or based on certain acts of disloyalty such as serving in a policy-making role for other governments or serving in a foreign military in hostilities against the US.).

  • Various other types of status - A foreign national may be admitted to the US as a "parolee" for certain purposes (such humanitarian parole, to obtain medical treatment). A person already here and from certain nations may be granted "Temporary Protected Status" or "TPS" - temporary permission to be here, allowing permission to work, since the US has determined that sending someone back to that home country would be dangerous or inhumane.

It is tempting to think of immigration status as something you either have or you don't, but even when an individual is out of status, there are reasons why it makes a difference how an individual came to be out of status in the US.

A foreign national can become "out of status" by staying past the expiration date of a nonimmigrant visa (for instance, coming to the US as a B-1/B-2 Visitor and staying longer than the time permitted for the "visit"), by violating the terms of a nonimmigrant visa (for instance, an H-1B visa holder working for an employer other than an H-1B petitioning employer), or by committing certain acts - normally criminal in nature.

Another way a foreign national can become "out of status" is to enter that way to begin with - to essentially "sneak in" to the US, without a visa and without being inspected and admitted by an immigration officer. This is called "Entry Without Inspection," often shortened to "EWI."

The way a person entered makes the most difference in the context of someone seeking permanent residence through an "Immediate Relative" petition - most often one filed by a US citizen spouse (though it can be filed by an over-21 US citizen child as well). A marriage to a citizen will not help someone who entered without inspection to get legal status in the US.

How Can Someone Apply for the Various Types of Immigration Status?

The correct way to apply for a nonimmigrant visa depends on the type of visa for which the person is applying. Some visas, like the H-1B and the L-1A & L-1B for instance, require a petition to be filed with US Citizenship and Immigration Services in the United States.

Normally, the types of visas which require a prior USCIS petition also require an employer or other sponsoring organization to petition on behalf of the foreign national. Although overseas, the foreign national in many cases will need to have secured a job offer from a US employer. USCIS has regional Service Centers which handle nonimmigrant visa petitions and applications for different portions of the country and different types of cases. USCIS may approve, deny, or ask for more information. If the case is approved, notice of the approval will be sent to the Embassy or Consulate indicated on the forms submitted to USCIS. The foreign national may then apply at the consulate for the visa stamp, which is used to enter the US.

Some visas, such as the B-1/B-2 visitors' visas, require no prior USCIS application process and only an application at the US embassy or consulate abroad. An application is made directly to the consulate, and the foreign national applicant is interviewed, normally resulting in an on-the-spot notification of approval or denial and return of the passport with the visa stamp within a short period.

Finally, some nonimmigrant visas (such as the F-1 student visa and the J-1 exchange visitor visa) are a hybrid of these two types in terms of application process. No prior application through US Citizenship and Immigration Services is required, but before a foreign national can apply at a consulate abroad for a visa stamp they first must obtain a form with details of the educational or exchange program from an agency authorized by USCIS to issue such a form (an I-20 form for a student visa, a DS-2019 for a J-1 visa).

With regard to permanent residence, there are many different pathways which may be available depending upon an individual's own situation:

  • Based upon employment
  • Based upon family relationship
  • Based upon the Diversity Visa Lottery
  • Based upon well-founded fear of persecution in a home country
  • Based upon a variety of other methods (unusual circumstances)