Written by attorney Jason Todd Lorenzon

Legal Status vs Illegal Status: Avoid Becoming an Illegal Alien

Non-immigrant Visas, Immigrant Visas and Staying in Status

The Immigration system in the United States is a difficult and cumbersome system. Immigration is riddled with technical rules. Even the most intelligent people can find themselves in a difficult position. The best advice anyone can give is to seek the assistance of an experienced immigration attorney if you ever have questions about immigration.

Two types of people are in the United States. United States Citizens and non-United States Citizens. The non-United States Citizens are of two types. They are normally referred to as immigrants. The first type of immigrant is the “legal" immigrant. The second type is the “illegal" immigrant. I really like the way the Chinese language describes these two situations. The Chinese community has taught me that the legal immigrant is in “status" and the illegal immigrant is “not in status."

Coming to the United States, is a dream for many. It was for me, and I am living the American Dream and helping others do the same. This is the only country in the world where a person is free to practice their religion, speak their mind and make something of themselves. For many of us who have opportunities, we enter the United States as “legal immigrants." Those of us who enter without inspection are “illegal immigrants."

Those of us who enter as legal immigrants, we normally enter on non-immigrant visas. Some of us come here with a valid tourist visa (B-status), a student visa (F status) or even a work visa such as an H1-B or L visa. The non-immigrant visa follows the alphabet and each letter of the alphabet has a corresponding visa. A visa has to be legally issued to an immigrant after the United States Citizenship and Immigration Service approves a visa petition and a consulate issues the visa. Second, the immigrant has to enter the United States at a designated port of entry, such as an international airport in the United States, and be “inspected and admitted" by an immigration officer. “Inspected and admitted" means that an immigration official determines that a person has the correct visa and no issues of inadmissibility exist. Inadmissibility means just that, the immigrant cannot enter the United States because of a health issue, a criminal issue or perhaps even a previous immigration violation. Once the immigration officer inspects an immigrant’s documents and everything is acceptable, the immigration officer will admit the immigrant by stamping the person’s passport and issuing an I-94 form. This is a white card that is normally stamped to a person’s passport. This is very important to demonstrate that a person has had a legal entry into the United States. A legal entry is required when a person applies for a green card in the United States. The only way of proving that is by showing an immigration officer the actual I-94 card. So make sure that you keep that in a safe place and make a photocopy of that card.

After being inspected and admitted, the person is then permitted to enter the United States and remain in the United States according to the requirements of the visa. This is usually marked on the I-94 card. If you are entering as a visitor, the I-94 will give a certain date when the visa expires. If you enter as a student on an F-1 visa, the I-94 card will normally state d/s which means duration of stay. In order to remain in status, you have to do what the visa permits to do, for example, a visitor’s visa allows you to visit and does not normally permit you to work in any capacity. So if a person starts to work without authorization, then the person has fallen out of legal status. Same, if a person overstays permitted time. In order to avoid this, a person can apply for a change of status to a different visa or even apply for an extension of that same status. However, if a person falls out of status, or does not comply with the conditions of their visa, then they become the poster child for “illegal" immigration.

A person may decide to get their green card in the United States. This is called adjustment of status. There are many ways of getting a green card, but the two most popular routes are employment (I-140) and family (I-130). A United States Citizen or Lawful Permanent resident parent, child, spouse or sibling can apply for an I-130 for a family member by filing an I-130. Depending on the quota dates, a visa might become available. In the case of a parent, spouse or child under 21, those are immediate relatives and not subject to the waiting line of a quota. A United States Company can petition for an employee by filing an I-140 immigrant visa petition. This is an intensive process and depending on the quota dates, a visa might not be readily available.

This is a very basic thumb nail sketch of some of the complexities of Immigration Law. Each person’s story and circumstances are different and due to the difficulties and nuances of U.S. Immigration Law, the counsel of an experienced immigration lawyer should be sought even in what seems to be a simple case, as no case is really simple.

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