Immigration Law: Everything You Need to Know
Learn everything that you need to know about immigration law such as the different types of visas available, how they are different, and how to apply for them.16 min read
Updated November 24, 2020:
What Is Immigration Law?
Immigration law defines a person's citizenship and residency status, which binds them with rights and obligations. It also manages how a non-resident of the U.S. may gain residency, citizenship, or visitation rights. Deportation is also a part of immigration law.
United States immigration is governed by four ideals:
- To unify families that have been dispersed.
- To bring foreign nationals who have skills to contribute to the U.S. economy.
- To protect refugees and people at risk.
- To increase diversity.
How Is the Immigration Process Carried Out?
According to the U.S. Constitution, Congress is given the power to manage and oversee immigration concerns. Specific laws that Congress relies on are located, with some exceptions, in Title 8 of the U.S. Code. Therefore, stipulations regarding immigration are managed by the federal government. State governments cannot interfere. The only exceptions are the few states that have passed laws entitling police to investigate suspected aliens. This has been a topic of debate.
Regardless of appeals within individual states, it is still the task of the federal government to monitor immigration processes through the Department of Homeland Security. Within this department:
- Immigration and Customs Enforcement oversees such matters and prosecutes offenders.
- U.S. Citizenship and Immigration Services checks into the applications for those who wish to pursue legitimate immigration to the country.
- Customs and Border Protection monitors the borders of the country and makes sure those coming and going are eligible.
There are two visa types:
- Immigrant Visas: This type of visa is for people who choose to stay within the U.S. as a resident to live and work. Generally, any given country may send out a limited amount of people to obtain such visas.
- Non-Immigrant Visas: These visas are usually for temporary visitors such as tourists, students, and business people.
U.S. immigration law can be quite complicated, with a great deal of nuance and caveats, which is why hiring a lawyer to help can be useful. A consultation with a lawyer can also help clarify which visa type may be right for you to pursue. For a general idea of how complex U.S. immigration can be, consider that the Immigration and Naturalization Act (the INA), which is in charge of immigration regulation, brings 675,000 permanent immigrants to the U.S. per annum. Sometimes, this limit is extended to accommodate immediate family members of U.S. citizens and residents.
If you receive permanent residency in the U.S., it means you can work and live in the States, and that you can apply for all employment opportunities, except those which are only for citizens. You can also remain in the country even if you are unemployed. Sometimes, temporary residents will be accepted into the U.S., too. The Congress and President decide how many refugees can be admitted annually.
How to Apply for an Immigrant Visa
There are multiple ways to apply for an Immigrant Visa that could pave the way toward residency.
Apply via a Family Member
The most common way to access citizenship is through family members. A permanent resident or U.S. citizen may file a petition on behalf of a family member from a foreign country.
Family unification is a major priority in the American immigration system. As such, the U.S. prioritizes the immigration of immediate family members. It also allows for the immigration of extended family members, though they are petitioned according to priority and in relation to annual quotas.
Immediate family members include spouses, parents (when the petitioner is over 21 years old), unmarried children under the age of 21, and children who were adopted before their 16th birthday. There is no limit to the number of immediate family visas the government offers each year. The time it takes to receive the visa is only a matter of its processing.
Distant relatives include married or unmarried adult children, who are given the highest priority, followed by sisters and brothers of an adult citizen who is over the age of 21, and then minor or adult spouses and unmarried children of legal permanent residents. If you are in the lower priority category, getting a U.S. visa can take years.
What Do I Need to Know to Obtain a Family Visa?
Since a family visa is a common type of visa to apply for, Congress devised a system to help determine how many people can be sponsored annually. First, 480,000 people are allotted for, and from this number, the Congress subtracts the number of immediate family sponsorships and aliens paroled into the U.S. during the previous year. Unused employment preference immigrant numbers from the year before are added to this amount. The resulting number shows how many visas can be distributed among the remaining preference categories.
By law, family-based visas cannot be fewer than 226,000. Often, the number of family visas given actually surpasses that, due to immediate relatives’ entries. The total number may exceed 480,000.
While U.S. citizenship grants the right to bring members of one's family to the country, this eligibility comes with restrictions. It is important to seek the counsel of a lawyer. In brief, citizens who petition for family members must be financially stable and meet an age requirement. The immigrants who come to the U.S. must also meet such standards. Not only must the U.S. citizen sign a petition, but they also must vouch for being financially liable for the incoming resident, should the new resident fail to support themselves.
Apply for an E5 Visa for Business Investors
An E5 visa is a U.S. work visa for those interested in making a business investment in the United States. There are various benefits to obtaining this visa, one of which is its ease of access. There is no quota or limit on the amount of E5 visas dispersed, so they are always available and can allow someone to access the U.S. based on their financial resources.
The E5 can be renewed indefinitely as long as the business investment is profitable. The E5 permits U.S. entry to the investor, a spouse, and children, and it is initially given for a period of two or five years. Often, users of this visa are real estate investors, retirees, and small business owners.
Apply for an E2 Visa for Treaty Investors
As an applicant for an E2 visa, you are approaching the United States with the goodwill of investing in its economy with your assets, labor, and contribution. Thereby, you are potentially gaining residency in the country with ease, and without a drawn-out immigration process.
An E2 visa is for people who wish to become entrepreneurs or owners of new businesses. They must come from a treaty country and offer 50 percent or more of the ownership of a major investment. Such an investment should create jobs and opportunities for others. The applicant has to reside in the U.S. to monitor the labor. Highlights of applying for the E2 include that there is no limit to the number allotted, generally or annually. Therefore, there is no competition to receive it.
The following countries have treaties of navigation and commerce with the U.S. Citizens of these countries are eligible to qualify for the E2 visa:
- Costa Rica
- Czech Republic
- Democratic Republic of the Congo
- Republic of Congo
- Slovak Republic
- Sri Lanka
- Trinidad & Tobago
- United Kingdom
Many types of investments are eligible. What is important is that the investment creates opportunities for the economy and others and that it can sustain itself. It is up to the applicant to provide evidence that the venture can employ three to four people. Sometimes, an investment worth $100,000 or less may be accepted, but more often than not, the capital and reserves must be $100,000 to $200,000. The visa will last the life of the investment, and it can be continuously extended as long as the initial investment is profitable.
To act on this visa, an investor must:
- Give their money to a bank or closing agent, who will release the money to the seller of the enterprise when the applicant receives the E2 visa.
- Come to the U.S. to begin the enterprise as a business visitor before applying for the E2 visa. However, they do not have to live in the U.S. for a specific duration, and they may not be subject to taxes globally.
Other benefits of the E2 visa include:
- Even though the E2 visa is a non-immigrant visa, the applicant is welcome to seek other opportunities while in the U.S. They can apply for a green card, and eventually, for U.S. citizenship. (Until then, however, the applicant must only work at their own enterprise.)
- The initial visa is often for a five-year period, though two-year periods are also possible.
- With the E2 visa, the applicant can bring their spouse and children, and all of them can study in the U.S. However, children will lose their status once they are 21 years old.
Apply for Refugee Status
The Refugee Act of 1980 defines a refugee as someone seeking safety from their home country, and in certain circumstances — such as delivering a missing American POW or MIA soldier — this is granted readily. The status is not given to those who persecuted others or are convicted of murder.
The necessary qualifications to apply for refugee status include fear of persecution in one's homeland, the existence of which must be proven through subjective feelings as well as objective evidence that persecution exists. There may be persecution due to social group, politics, religion, national origin, or other identification.
Refugee candidates may apply from outside of the U.S.; often this is done through a transition country that has given the applicant temporary relief. Whether an immigrant is accepted depends on the degree of danger, as well as U.S. concern over their class or group. Whether they already have family in the U.S. is also a factor.
If you are already in the U.S. but think that you will be in danger if you return to your country of origin, another option is to seek asylum. This can be applied for within the first year of arriving in the U.S. There is no limit on the number of people who can be granted asylum.
Apply for Employment
It is possible to become a resident by being offered a job with a legitimate employer. This employer must petition for you, and on that basis, the government can offer a work visa. In this situation, you are connected to the U.S. by virtue of the job. There are over twenty different kinds of work visas available, some of which may lead to green card status.
Having a green card means that you are a resident of the U.S., and you are given the right to come and go across the country's borders. You can seek employment, work, and pay taxes. Once five years have passed, you may be permitted to apply for full citizenship. U.S. citizenship bestows many benefits, including the right to vote.
To seek employment in the U.S., consider which work visa is the correct fit.
- The EB1: For much-needed workers with unusually high competency in their professions.
- The EB2: For those with advanced educational degrees and unusually high competency.
- The EB3: For professional or skilled workers.
- The EB4: For special immigrants.
- H1B: For those with a job offer for a unique or particular role.
- H1B1: For Chilean and Singaporean citizens with a temporary job offer.
- H2A: For seasonal or temporary employment in the agricultural industry.
- H2B: For seasonal or temporary work across a range of jobs.
- I Work Visa: For employees of the media, radio, film, or other cultural mediums.
- L1: For a senior employee to be transferred within an international company.
- 01: For workers with unique ability or talent to work temporarily for a sponsoring agent or employer.
- P1: For internationally recognized athletes and entertainers to perform at an event.
- P2: For international artists and entertainers to take part in an exchange program and perform for a temporary period.
- P3: For international artists and entertainers to take part in a cultural program and perform for a temporary period.
- Q1: For individuals to participate in an international cultural exchange program.
- R1: For religious workers to work in the U.S. for a non-profit religious organization.
- TN: For citizens of Canada and Mexico to work temporarily.
- E3: For Australian citizens to live and work temporarily.
The quota for permanent employment-based residents is 140,000 per year, and this includes the applicants in addition to spouses or children. Preference categories include:
- Persons of extraordinary ability in any field, with a yearly limit of 40,000.
- Professionals with advanced degrees or exceptional ability across disciplines, with a yearly limit of 40,000.
- Skilled workers with at least two years of training or experience and college degrees, with a yearly limit of 40,000. There is an additional quota of 5,000 for workers with other skills.
- Special immigrants, such as religious workers, employees of the U.S. foreign service, and former U.S. government employees, 10,000.
If some of these spots are not filled, they may be transferred to the upper priority categories. No country can offer an amount of more than 7 percent of the total number of immigrants in a given year.
Apply for the Visa Lottery
The visa lottery was initiated in 1990 to bring immigrants worldwide to the U.S. For people in some countries, this is the most likely way to receive a green card, and visas are given across the six major regions of the world.
The visa lottery was initiated when it was found that citizens of Ireland were disenfranchised due to not receiving enough visas. To resolve this issue, an annual lottery was initiated to supply visas to the Irish and to citizens of other countries that had suffered.
Most visas are offered to areas with the lowest immigration rates. Annually, 55,000 visas are offered to civilians of countries who had fewer than 50,000 immigrants to the U.S. over the past five years. Countries that sent over 50,000 immigrants to the U.S. over the past five years are not eligible. Often, Africans and Eastern Europeans are eligible, though the countries do fluctuate each year. 5,000 of the 55,000 visas allotted are made available under the NACARA program, which means that the actual visa limit is 50,000.
Eligibility for the program necessitates:
- Having attended high school or its equivalent.
- Having had two years in a job that needed two years of training, over the past five years.
The lottery is completed via computer generation, and candidates must apply online. Upon winning the lottery, spouses and dependents may join the winner in the United States.
Most Common Visa Applications
The most common visa applications include:
H-1B Foreign Specialist
- Candidate requires a minimum of a bachelor's degree.
- Candidate needs to have this degree in the relevant discipline or the equivalent in experience. Three years of experience is equal to one year of study.
- The employer must pay the specialist the same wage given to other workers of the same job in their U.S. region.
- The temporary worker must plan to return to their home country afterward unless they apply for a green card.
TN Visa for Specialist Workers
- For specialist workers from Canada and Mexico based on NAFTA policy.
- Like the H-1B visa, but with lower educational requirements.
L-1 Intra-Company Transfer
- The business doing the transfer must be a parent, subsidiary, or affiliate of the U.S. business via joint ownership.
- The candidate must have a unique or particularly complementary set of expertise which he will pass on to others.
- The candidate must have been employed by the business for at least a year during the three previous years.
- A non-immigrant visa that allows for exchange and immersion.
- For professors, scholars, trainees, interns, students, primary and secondary school teachers, secondary school students, communication specialists, public administrators, librarians, foreign doctors, summer travel and work, and more.
What Is the Visa Waiver Program?
The Visa Waiver Program allows citizens of specific countries to visit the U.S. for 90 days. Such people cannot use this program to attend school, to work, or to apply for residency. It is mostly used for tourist reasons. Thirty-seven countries are a part of this program, and these include countries that are politically and economically stable.
What Is Temporary Protected Status?
Temporary Protected Status is for individuals present in the U.S. whose home countries have been afflicted by natural disasters, war, or other temporary, dangerous circumstances. To protect these individuals, the U.S. allows them to stay for an additional six, 12, or 18 months, which can be extended. This title may not lead to permanent residency. Sometimes, people can come to the U.S. via parole, though they are not refugees. This can be due to humanitarian reasons or to suit the needs of the public.
What Is the Violence Against Women Act?
The Violence Against Women Act offers protection to men or women who suffer from spousal violence. It makes immigration accessible to them and their children without spousal involvement. They can apply for and receive lawful status in the U.S., and possibly a green card, without needing to rely on another person. Eligibility criteria are:
- The abuser was a U.S. citizen or lawful permanent resident. If he or she lost such status due to domestic violence, a petition must be filed within two years. If the abuse happened before their status had been granted, a petition can still be filed.
- The petitioner is a spouse, ex-spouse, child of the abuser, or a parent of their children who are at least 21 years old. Children younger than 21 and not married can be petitioned for along with their parents. If the offender is an ex and the marriage failed due to the abuse, or the abuser died, a petition can be filed within two years. However, the petition will be void if the petitioner marries again before the application’s acceptance.
- There is evidence of the individual being abused or subjected to cruelty. The U.S. Citizenship and Immigration Services (USCIS) states that this includes emotional abuse, controlling actions, threats to deport or inflict harm, forced confinement, and other actions that create fear. The USCIS will consider situations on a case-by-case basis.
- The abused spouse must have had positive intention upon entering the marriage; it was not to obtain immigration rights.
- Generally, the petitioner must live in the U.S. Exceptions include if the offender is an employee of the American government or military, or if the abuse occurred in the U.S.
- The petitioner must have lived with the abuser for any length of time, though the petitioner does not need to live with him or her at the time of application.
- The petitioner must have had a good moral character for three years. A criminal record, addiction, lying under oath, or persecuting or harming other people may challenge that status.
If you apply for this status, you should be able to demonstrate the above with official documents and statements.
What Is Deportation?
If you are deported, it means you inhabited American soil illegally and, for various possible reasons, are to be removed. Illegal immigrants are more likely to be deported if they commit a felony after their arrival. Even not reporting a change of address can lead to deportation. If false documents helped illegal immigrants enter the U.S., they will be at risk for deportation. Other risk factors include:
- Helping other illegal immigrants enter the country.
- Using fraud to enter the U.S., which must be proven by the government (in a defense, acceptable evidence must reveal that admission would have been granted regardless).
- Using marriage fraud for entry.
- Threatening U.S. security.
- Voting illegally.
- Not providing their address to the government every three months, regardless of whether it had changed.
What Is Deferred Action?
Deferred action is when an individual who is threatened with deportation is given temporary relief, during which time they may apply for temporary employment. They cannot claim citizenship or residency, but rather, remain in the country within the legal bindings of the law. Deferred action may be attainable on an individual basis. For example, in 2012, the Deferred Action for Childhood Arrivals was established, allowing relief for people under 31 years of age who entered the U.S. before the age of sixteen and remained illegally.
In 2014, illegal immigration was tackled in numerous ways, usually by attempting to deport illegally residing individuals instead of whole families. Deferred action periods increased from two to three years, the age requirement was annulled, and the continuous residence requirement was changed from 2007 to 2010. The Deferred Action for Parents of Americans and Lawful Permanent Residents programs were established, allowing parents to apply for Deferred Action under certain circumstances. Such programs are active, yet presently on hold due to a Supreme Court case.
Why Is an Immigration Lawyer Important?
The immigration process is complex, with a great deal of paperwork. Rules frequently change. Even within the practice of immigration law, lawyers are specialized according to niche and must keep up with changing practices. A lawyer may only work in the field of an employment-based petition, or foreign youth, or as defense lawyers for those whose residency is threatened. Therefore, it is recommended to have a basic understanding of where your goals fit in, and then seek an attorney whose specific area matches your needs.
An experienced lawyer will aid an individual through the transmission of documents. To seek residency, the first step a lawyer will likely take is the application for a green card, after which, the candidate may become eligible to apply for full citizenship.
What Is the History of Immigration Policy?
In 1790, Congress passed the Naturalization Act, which was also known as the Nationality Act. This policy allowed white people of good character who had lived in the U.S. for two years to become citizens. Later, the Fourteenth Amendment determined that birth in the U.S. would grant citizenship. African-Americans were permitted naturalization in the late 1800s, although the Chinese Exclusion Act did not yet permit this to Chinese people.
The Immigration Act of 1942 limited the number of immigrants flocking to the U.S. from each respective country. During the Great Depression, immigration closed further. The Immigration and Nationality Act of 1952 enforced caps per country and undocumented non-immigrants were not permitted entry.
Two late-20th century policies set the stage for modern immigration. The first was the Immigration Reform and Control Act (IRCA) in 1986. This act made it hard for employers to hire undocumented non-immigrants, took away undocumented non-immigrants’ ability to use welfare, and accepted other immigrants through a transition program. A limitation was placed to prevent marriages done to obtain citizenship.
In 1990, access to U.S. visas became equal worldwide, and immigration was encouraged. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 streamlined the process of immigrants' admission at borders, where inspections were carried out by U.S. Customs authorities.
After 9/11, the Department of Homeland Security replaced the INS. Within Homeland Security, three agencies were made:
- U.S. Customs and Border Enforcement (CBE), which manages border patrol
- U.S. Citizenship and Immigration Services (USCIS), which handles the process of obtaining citizenship and residency
- U.S. Customs and Border Enforcement (ICE), which handles deportation and policing.
Immigration narrowed at this time, but as security was enhanced, the doors to immigration re-opened once again.
Get Help with Immigration Law
If you need help with an immigrant or nonimmigrant visa application, deportation, or any other subject pertaining to immigration law, you can post your question or concern on UpCounsel’s marketplace or hire an experienced immigration lawyer from UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies such as Google, Menlo Ventures, and Airbnb.