IMMIGRATION LAW

Family unification is an important principle governing immigration policy. The family-based immigration category allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.

Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are:

• spouses of U.S. citizens;
• unmarried minor children of U.S. citizens (under 21-years-old); and
• parents of U.S. citizens (petitioner must be at least 21-years-old to petition for a parent).

A limited number of visas are available every year under the family preference system, but prospective immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The preference system includes:

• adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21-years-old to petition for a sibling), and
• spouses and unmarried children (minor and adult) of LPRs.

The United States provides various ways for immigrants with valuable skills to come to the country on either a permanent or a temporary basis.

Temporary Visa Classifications

Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs.  There are more than 20 types of visas for temporary nonimmigrant workers. These include L-1 visas for intracompany transfers; various P visas for athletes, entertainers, and skilled performers; R-1 visas for religious workers; various A visas for diplomatic employees; O-1 visas for workers of extraordinary ability; and various H visas for both highly-skilled and lesser-skilled workers. The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. In most cases, they must leave the United States if their status expires or if their employment is terminated. It may be possible, depending on the type of job and the foreign national’s qualifications, for an employer to sponsor the worker for permanent employment. A foreign national does not have to be working for the employer in order to be sponsored. However, depending on the permanent immigration category sought and the foreign national’s current nonimmigrant category, the foreign national may be able to complete the steps to become an LPR while continuing to live and work in the United States.

Permanent Immigration

The overall numerical limit for permanent employment-based immigrants is 140,000 per year.  This number includes the immigrants plus their eligible spouses and minor unmarried children, meaning the actual number of employment-based immigrants is less than 140,000 each year. The 140,000 visas are divided into five preference categories, detailed in Table 2. For some categories, the sponsor must first test the U.S. labor market under terms and conditions established by the Department of Labor, and the Secretary of Labor must certify that the petitioner’s application met certain requirements before the sponsor may file a petition with USCIS. For some categories, the sponsor’s first step is to file a petition with USCIS or the foreign national may self-petition. The final step is the foreign national’s application for an immigrant visa at a U.S. Embassy or Consulate abroad or an application to adjust status to LPR if in lawful status in the United States. For consular processing, the immigrant visa application cannot be filed until after USCIS approves the immigrant petition. For adjustment of status, the time to file the application depends on whether a visa number is considered to be immediately available.

Protection of Refugees, Asylees, and other Vulnerable Populations

There are several categories of legal admission available to people who are fleeing persecution or are unable to return to their homeland due to life-threatening or extraordinary conditions.

Refugees are admitted to the United States based upon an inability to return to their home countries because of a “well-founded fear of persecution” due to their race, membership in a particular social group, political opinion, religion, or national origin. Refugees apply for admission from outside of the United States, generally from a “transition country” that is outside their home country. The admission of refugees turns on numerous factors, such as the degree of risk they face, membership in a group that is of special concern to the United States (designated yearly by the President of the United States and Congress), and whether or not they have family members in the United States. Each year, the president, in consultation with Congress, determines the numerical ceiling for refugee admissions.  The total limit is broken down into limits for each region of the world as well. After September 11, 2001, the number of refugees admitted into the United States fell drastically. After the Bush administration put new security checks in place, annual refugee admissions returned to their previous levels and rose during the Obama administration. In the Trump administration, the refugee ceiling has sharply fallen, from 110,000 in 2017 to 45,000 in 2018 and 30,000 in 2019. Since 2017, actual admissions of refugees have also fallen well below 50 percent of the actual annual ceiling.  At 22,491, 2018 had the lowest number of admitted refugees since the system was created in 1980.  On September 26, 2019, the president set the annual cap on refugees for fiscal year 2020 at just 18,000, the lowest level ever.

Asylum is available to persons already in the United States who are seeking protection based on the same five protected grounds upon which refugees rely. They may apply at a port of entry at the time they seek admission or within one year of arriving in the United States. There is no limit on the number of individuals who may be granted asylum in a given year nor are there specific categories for determining who may seek asylum. In FY 2017, 26,568 individuals were granted asylum. Refugees and asylees are eligible to become LPRs one year after admission to the United States as a refugee or one year after receiving asylum.

The Diversity Visa lottery was created by the Immigration Act of 1990 as a dedicated channel for immigrants from countries with low rates of immigration to the United States. Each year, 55,000 visas are allocated randomly to nationals from countries that have sent fewer than 50,000 immigrants to the United States in the previous five years. Of the 55,000, up to 5,000 are made available for use under the Nicaraguan Adjustment and Central American Relief Act program, created in 1997 to provide relief to certain asylum seekers who applied for asylum before a specific date. This results in a reduction of the actual annual limit to 50,000. Beginning in 2020, DOS expects most of the 5,000 visas to be restored to the Diversity Visa program. Although originally intended to favor immigration from Ireland (during the first three years of the program at least 40 percent of the visas were exclusively allocated to Irish immigrants), the Diversity Visa program has become one of the only avenues for individuals from certain regions in the world to secure a green card.

To be eligible for a diversity visa, an immigrant must have a high-school education (or its equivalent) or have, within the past five years, a minimum of two years working in a profession requiring at least two years of training or experience. Spouses and minor unmarried children of the principal applicant may also enter as derivatives. A computer-generated random lottery drawing chooses selectees for diversity visas. The visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the last five years.

People from eligible countries in different continents may register for the lottery. However, because these visas are distributed on a regional basis, the program especially benefits Africans and Eastern Europeans.

Temporary Protected Status (TPS) is granted to people who are in the United States but cannot return to their home country because of “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed conflict.” TPS is granted to a country for six, 12, or 18 months and can be extended beyond that if unsafe conditions in the country persist. TPS does not necessarily lead to LPR status or confer any other immigration status.

Deferred Enforced Departure (DED) provides protection from deportation for individuals whose home countries are unstable, therefore making return dangerous. Unlike TPS, which is authorized by statute, DED is at the discretion of the executive branch. DED does not necessarily lead to LPR status or confer any other immigration status.

Deferred Action for Childhood Arrivals (DACA) is a program established in 2012 which permits certain individuals who were brought to the United States under the age of 16 and who had resided continuously in the United States since June 15, 2007, to remain in the United States and work lawfully for at least two years, so long as they have no significant criminal record and have graduated high school or college or received a degree equivalent.  It does not confer any path to permanent legal status and requires renewal every two years. In 2017, the Trump administration ended DACA, but due to a court order, individuals who had DACA before the program was ended are still permitted to renew their work authorization and protection from deportation.

Certain individuals may be allowed to enter the U.S. through parole, even though they may not meet the definition of a refugee and may not be eligible to immigrate through other channels. Parolees may be admitted temporarily for urgent humanitarian reasons or significant public benefit.

In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or through the Violence Against Women Act, VAWA). There are other exceptions including, but not limited to, members of the U.S. military who serve in a time of war or declared hostilities. Applicants for U.S. citizenship must be at least 18-years-old, demonstrate continuous residency, demonstrate “good moral character,” pass English and U.S. history and civics exams (with certain exceptions), and pay an application fee, among other requirements.

U.S. Citizen Petition For An Adopted Child
Each year, thousands of U.S. citizens adopt children from overseas. As a U.S. citizen you may petition for your adoptive child through an Immediate Relative Petition. Your child will receive an immigrant visa if the child is found eligible.

Who Is Eligible?

• A U.S. Citizens May File a Petition for an Adopted:
• Child (unmarried and under the age of 21),
• Unmarried son or daughter over the age of 21 or
• Married son or daughter.

In general, an adopted child is considered, for immigration purposes, to be the child (or adult son or daughter) of the adopting parent if:

• The parent adopted the child before his or her 16th birthday (or before the 18th birthday under certain circumstances as described below).
• The parent submits evidence of a full and final adoption.
• The parent had legal and physical custody of the child for at least two years while the child was a minor.
  • The legal custody must have been the result of a formal grant of custody from a court or other governmental entity.
  • The custody and residence requirement may be met by custody and residence that preceded the adoption.
  • The two years custody and residence requirements are waived for certain abused children

A child is still considered to be an adopted child if they were adopted after his or her 16th birthday but before his or her 18th birthday, and:

• The child is the birth sibling of another child who was adopted by the same parent(s) before the other child’s 16th birthday and immigrated through the Immediate Relative Process or
• The child is the birth sibling of another child who was adopted by the same parent(s) before the other child’s 16th birthday and who immigrated as an orphan based on an adoption by the same parent(s).

Types of U.S. Work Visas

Permanent and temporary U.S. work visa options.
Many foreign nationals want to work in the United States. Although U.S. jobs usually start off as temporary, U.S. employment can often lead to a green card (U.S. permanent residency).

This article provides brief summaries of some of the most frequently obtained work visas in order to help point readers in the right direction as to which visa they may qualify for. We’ll discuss both immigrant visas (permanent employment work visas) and nonimmigrant visas (temporary employment work visas).

Please note that the following list is not exhaustive, and there are multiple work visas, and other types of visas (such as student or tourist) that will allow you to enter the United States.

Nonimmigrant Visas

If you come to the U.S. with a nonimmigrant visa, you will need to depart the U.S. by the date of your visa expiration (unless you apply to extend your visa). The following are temporary work visas that will allow you to work in the U.S. for a specific employer.

H-1B

The H-1B visa is a popular nonimmigrant visa. In fact, more people want them than can get them, owing to annual caps on the supply in most cases.
To obtain an H-1B, you must have an offer of employment from a U.S. employer. Your proposed job position must be in a specialty occupation, which usually means that a bachelor’s degree or higher is required to do the job. The U.S. employer must sponsor you for the H-1B visa by filing an I-129 petition with U.S. Citizenship and Immigration Services (USCIS). Because this type of visa is in high demand, you might want an attorney to help you through the process.

L-1

The L-1 nonimmigrant visa is for employees who work for a foreign company that is an affiliate of a U.S. company. L-1 employees are transferred from the foreign company branch to the U.S. company branch. Or, the L-1 employee can be transferred by the foreign company to the U.S. in order to establish a U.S. office.

In either scenario, the L-1 employee must have worked for the foreign affiliate for one continuous year within the past three years immediately preceding entry into the United States. If, for example, you want to enter the U.S. in L-1 status in 2020, you must have worked for the foreign affiliate for at least one year during the time period of 2018 through 2020.

Additionally, the L-1 visa is subdivided into two categories: L-1A (managerial/executive capacity) and L-1B (specialized knowledge).

The L-1 visa application is also made on the I-129 petition (filed with USCIS by the U.S. employer).

O-1

The O-1 nonimmigrant visa is for aliens of extraordinary ability who are coming to the U.S. to work in their field of expertise. To obtain an O-1 visa, you must have an offer of employment from a U.S. employer and prove that you are extraordinary in your field.

To prove you are extraordinary, you must meet three of six prongs. These include earning a high salary (remuneration), making original contributions to your field, receiving achievements/awards, and performance in a lead/starring/critical role in your field.

The U.S. employer files an I-129 petition on your behalf, which also must include a letter from your industry’s labor union stating that the union has no objection to your proposed U.S. employment.

E-1

The E-1 nonimmigrant visa allows nationals of certain countries to come to the U.S. in order to carry on trade activities. You can obtain the E-1 visa as a Treaty Trader or a Treaty Investor. You must be a national of a country that maintains a trade treaty with the U.S., and you must establish that you are coming to the U.S. pursuant to that treaty to carry on substantial trade.

Also, if you want to come as a Treaty Investor, you have to invest a substantial amount of money in a U.S. business, and prove that you are coming to the U.S. to develop that investment. Typically, you apply for an E-1 visa at the U.S. consulate in your home country, and you do not file any documents with USCIS.

TN

The TN visa was created by NAFTA (the North American Free Trade Agreement). The TN visa allows only Canadian and Mexican citizens to come to the U.S. to work for a U.S. employer.

To qualify for a TN visa, you must prove that you are a citizen of Canada or Mexico, that you have a job offer with a U.S. employer, and that your position qualifies for the TN visa under NAFTA. Examples include accountants, engineers, lawyers, pharmacists, scientists, and teachers.

Immigrant Visas

If you come to the U.S. with an immigrant visa, you will receive permanent residence upon U.S. entry and your actual green card soon after.

The following are immigrant work visas that will allow you to work and live in the U.S. permanently (you might also be able to apply for these classifications while you are already in the U.S., in which case you would change your status to permanent resident instead of having to leave the U.S.):

EB-1 Extraordinary Ability

The extraordinary ability visa is included in the employment-based 1st preference immigrant category (EB-1). Few foreign nationals qualify for extraordinary ability visas, because you have to demonstrate that you are in the top of your profession and that you have sustained international or national acclaim in your field.

To do so, you must demonstrate that you meet three of ten prongs showing extraordinary ability. These include publication of scholarly articles, publications about you or your work, awards, critical role for a leading organization, membership in professional associations, original contributions, high remuneration, showcases or exhibitions of your work, judging of the work of others, and commercial success in the performing arts.

EB-1 Multinational Executive

The multinational executive visa is also included in the employment-based 1st preference immigrant category (EB-1), and is a bit like an immigrant version of the L-1 nonimmigrant visa. To qualify as a multinational executive, you must meet the same criteria as for the L-1A visa (former employment in the past three years for the foreign affiliate and that you will work in a managerial/executive capacity). To learn about the application process, see Employment-Based Green Cards.

EB-2 Advanced Degree

The advanced degree category is in the employment-based second preference immigrant category (EB-2). To qualify, you will need a U.S. employer to sponsor you.

Your employer will need to complete the PERM certification process. You will need to possess at least a U.S. Master’s degree (or foreign equivalent), and you will need to demonstrate that your offered job position requires at least a U.S. master’s degree.

You will also need to show that your position requires this degree. For example, if you have a master’s degree in education, and your job position is that of an elementary school teacher, you will not qualify for the advanced degree category, because your job position does not require a master’s degree (elementary school teaching positions require only a bachelor’s degree). However, if your prospective job is for a university teacher position, you might qualify for the advanced degree category, because university teacher positions require at least a Master’s degree.

Alternatively, if you do not have a master’s, you may qualify for EB-2 if you have a bachelor’s degree and five years of progressive experience.