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< Back to current issue of Immigration Daily

ABC of US Immigration Law
by Sudhir Shah

BACKGROUND
Since 1492, the year when Columbus discovered America, people from all over the world have been migrating to the United States of America ("US"). Then known as the "New World," the US, in the year 1640 attracted the British, French, Germans, Dutch, Spanish and Portuguese. Within a span of 136 years, from 1640 to 1776, the population of US increased hundred fold and grew to 25 lakhs [2.5 million]. Today it is more than 25 crores [250 million]. It was in 1789 that US adopted its Constitution and in 1798 that the Congress authorized the US President to expel dangerous aliens by enacting the Aliens Friends Act and the Aliens Enemies Act. The Naturalization Act, which provided for five-year residency requirement for US citizenship (which requirement exists even today), was introduced in 1802. The Second World War brought an upswing in US economics and migration to US increased. The foundation of the current immigration laws, the Immigration and Nationality Act ("INA") was enacted in the year 1952. The INA has been amended several times till date, but continues to be the law that governs immigration to the US.

VISA AND STATUS
A US visa, which serves as an entry document, is a stamp placed on the passport by a US Consulate outside the US. It cannot be issued inside the US. There are of two categories of US Visa: Immigrant and Non-immigrant. Immigrant visas are meant for people who intend to remain in US permanently. Non-immigrant visas are issued to people who intend to enter US on a temporary basis.

Status is the name for privileges, which you are given when you receive immigration benefits either as an immigrant or as a non-immigrant. With each visa a status is required to be given. But with each status a visa may not be available. A non-immigrant can travel in and out of US on a visa but not with a status. A non-immigrant status is lost as soon as the person leaves the US.

THE MYTH AND THE PRESUMPTION
It is a myth that visitor, business or student categories of non-immigrant US visas are easy to obtain. In fact these visas are more difficult to get compared to immigrant visas because an applicant of a non-immigrant visa is obliged to satisfy the Immigration Officer that he has a non-immigrant intention. As per Section 214(b) of the INA, every alien is presumed to be an immigrant until he establishes to the satisfaction of the Consular Officer, at the time when he makes an application for a non-immigrant visa at the US Consulate, and to the satisfaction of the Immigration Officer, at the time of application for admission in US at the border posts, that he is entitled to a non-immigrant status under Section 101(a)(15) of the INA. The burden is upon the applicant of a non-immigrant visa to satisfy the Consular and/or the Immigration Officer that he has no intention of permanently residing in US and he has sufficient family and financial ties, which would make him return to his home country.

PRE-CONCEIVED AND DUAL INTENT
An applicant of a non-immigrant visa if found to have a "pre-conceived intent" to permanently reside in US or a "dual intent" of doing things permissible on the category of visa which he is applying for as well as permissible on other category of visa, then such a person will be denied a non-immigrant visa. If a visa has been granted to him, it may be cancelled and he may be denied entry into US.

IMMIGRANT VISAS
Immigrant visas, on the basis of which green cards are issued after you enter US, are granted to people falling under 10 different categories. Each category normally has a particular quota. Under certain circumstances, a green card holder may apply for citizenship after five years of holding the green card.

IMMEDIATE RELATIVES:
The first amongst the ten categories is that of Immediate Relatives. There are no quota restrictions for this category. Immediate Relatives include spouses of US citizens; unmarried people under the age of 21 years who have at least one US citizen as a parent; parents of US citizens if the US children are over the age of 21 years; step children and step parents if the marriage creating the step children/step parent relationship took place before the child's 18th birthday and parents and children related through adoption if the adoption took place before the children reach the age of 16 years.

FAMILY PREFERENCE CATEGORY:
Every year 226,000 immigrant visas are issued to aliens on account of family relationship with US citizens or green card holders. This category is known as "Family Preference Category."

FIRST SECOND THIRD FOURTH
Priority workers, which include persons of extraordinary ability in arts, science, education, business and athletics or outstanding professionals and researchers. Professionals with advanced degrees or exceptional abilities. Professionals and skilled or unskilled workers Religious workers and various miscellaneous categories of workers and other individuals. Individual investors willing to invest one million dollars in US business or half a million dollars in economically depressed area are granted immigrant visas in this category.

EMPLOYMENT PREFERENCE CATEGORY:
Immigrant visas which are granted on account of employment fall under 'Employment Preference category. Their yearly quotas are 140,000.

GREEN CARD LOTTERY:
Every year 55,000 immigrant visas are granted through green card lotteries. Indians are excluded from participating in this lottery system, which is known as "Diversity Visa." But if a person residing in India was born outside India in a country which is eligible to participate in the green card lottery, that person though residing in India may be eligible to participate in the green card lottery.

PEOPLE IN SPECIAL SITUATIONS:
Occasionally the US government passes laws making green cards available to people in special situations. At present it includes religious workers, foreign medical graduates who have been in US since 1978, former employees of the Panama Canal Zone, foreign workers who are normally long term employees of the US government, retired officers or employees of certain international organizations who have lived in US for a certain time, foreign workers who have been employees of the US Consulate in Hong Kong for at least three years and foreign children who have been declared dependent in juvenile courts in the US.

REFUGEES AND POLITICAL ASYLEES:
Green cards have also been granted under Refugees and Political Asylees categories, Amnesty category and Special Agricultural Workers category.

GREEN CARDS FOR ILLEGAL RESIDENTS:
People who are illegally in the US for more than 10 years, if their parents, spouses or children, who are US citizens or permanent residents, would face extraordinary and exceptionally unusual hardships on account of deportation, may also be granted green cards under the category of long term residence and other special cases.

LIMITATIONS OF GREEN CARD HOLDER:
A green card holder must have his actual place of residence in the US. A green card cannot be used just for work and travel purposes. A green card holder cannot remain outside US for more than one year at a time. If he commits a crime or participates in a politically subversive activities, his green card can be taken away and he can be deported. He is liable to be called for military service and he must pay US tax on his worldwide income because a green card holder is regarded as a US resident.

NON-IMMIGRANT VISAS
The classification of different categories of non-immigrant visas runs from 'A' to 'V'.

VISITOR AND BUSINESS VISA:
The most availed of are visitors visas (B-2). They are granted to people intending to enter the US temporarily as visitors/tourists. To qualify for a B-2 visa, an applicant is required to show his genuine "visitor intention," availability of sufficient funds to cover to and fro travel and lodging and boarding expenses in the US, and strong family and financial ties in his home country to make him return. The requirements of a Business Visa (B-1) are also almost the same. These two categories of non-immigrant visas allow admission for a maximum period of six months. In certain exceptional cases, an alien can have this period extended for further six months. However, it is advisable not to do so.

STUDENT VISA:
Foreign students intending to study in a US university/college/school in a full time vocational or a short duration non-vocational course can do so after obtaining an F-1/M-1 Student Visa. A recognized university/college/school must accept the student and issue Form I-20. The student is required to show that he has a bonafide student intention and has adequate funds to meet with the expenses of tuition, college fees and lodging and boarding expenses. The student should be proficient in English language and should not have an intention to work in the US.

OTHER CATEGORIES:
It is possible for a US entity to invite a foreigner to work with them in US in certain circumstances.

  • A specialty occupation job requiring the services of a graduate can be offered to a foreigner without obtaining labor certification. People who qualify for such jobs are granted H-1B visas.
  • To work on farms, foreign agricultural workers can be invited in US on H-2A visa.
  • A special category of H-3 visa is available for trainees.
  • A US company which has a branch, wholly or partly owned subsidiary, joint venture or affiliate of a foreign company, can invite a person working as a manager, executive or person with specialized knowledge in the said foreign company for a period of twelve months during last 3 years, to work in that US company as an intra-company transferee on L-1 visa.
  • Bonafide representatives of the foreign press coming to US to work solely in that capacity are granted I Visa.
  • Exchange visitors coming to the US to study, work or train as a member of exchange program officially recognized by the US Information Agency are granted J-1 visa.
  • FiancÚs of US citizens coming to the US for the purpose of getting married are granted K-1 visa.
  • Persons of extraordinary ability in sciences, arts, education, business or athletics are granted O-1 visa.
  • Internationally recognized athletes and entertainers are entitled to enter the US on P-1 visa.
  • Artists and entertainers coming to the US to give culturally unique performance in a group are granted P-3 visas.
  • Ministers of recognized religion are allowed to enter US and work on R-1 visa.
  • S visas which were discontinued and were granted to persons providing information or assistance to US Law Enforcement Agencies have been, since September 11, 2001 incidents, re-introduced.
  • Spouses and minor children of green card holders waiting for more than 3 years for immigrant visa are granted V visa.
The duration for each of these categories of visas are different and each of them has special requirements and conditions attached to them.

CHANGE/ADJUSTMENT OF STATUS
The US laws make it permissible for a person to enter US on a particular category of US non-immigrant visa and then whilst in US in certain circumstances, change his status to another category of non-immigrant visa. However it is always advisable not to do so, since if the status is changed from one category to another, the person doing so, when he leaves US and thereafter desires to re-enter US, is obliged to go to US Consulate of his own country and apply for that category of visa to which he has changed his status. At that time, the Consular Officers view such a person with suspicion. It is also permissible to adjust status from non-immigrant to immigrant. In the case of adjustment of status, if such an application is not granted, the applicant runs the risk of illegally overstaying in US. If a person overstays in US even for 180 days, he runs the risk of being debarred from entering US on any category of visa for three years and if the illegal stay is for more than one year, the period for which he is debarred is 10 years.

CONCLUSION
US immigration laws are complex. At times one finds that they are also strange and provisions are contrary to each other. With the recent terrorist attacks on US they are likely to grow in number and be more complex. The consular officers who have been strict in implementing these laws are likely to be now more strict. It is therefore advisable and in the interest of a visa applicant that before applying for any category of immigrant or non-immigrant US visa he obtain prior legal guidance from an immigration attorney.


About The Author

Sudhir Shah is the Proprietor of Sudhir Shah & Associates, a law firm in Mumbai, India, of more than 30 years standing. He advises Indian clients on US Immigration Laws. Mr. Shah regularly answers readers questions on Immigration related issues in "Economic Times on Sunday." His articles on US Immigration laws are regularly published in two leading vernacular language newspapers of India. Since the recessionary trend started in US and post September 11, 2001's attacks he has been invited on several occasions by CNBC TV Channel to participate in panel discussions to give his views on the events affecting US Immigration Laws. His website is www.sudhirlaw.com and e-mail address is sudhir.shah@vsnl.com



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