Immigration attorney, Svetlana Schreiber and Associates, immigration attorneys

U.S. Immigration policy and law is governed by the Immigration and Nationality Act (INA). Years of Congressional effort resulted in comprehensive revisions to the INA in the Immigration Reform and Control Act of 1986 and in the Immigration Act of 1990 (INA 90). Subsequently, Congress further changed (and complicated) immigration policy in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MITINA)

U.S. Immigration laws are complex, confusing and often obtuse. Regulations are constantly being made, changed and applied differently. This Web-Page presents a brief overview of U.S. Immigration law. Keep in mind that entire chapters or even books are written to cover what is here briefly presented as a thumb-nail sketch. Before taking any actions which may affect your immigration status you should seriously consider getting professional advice which takes into consideration your individual circumstances.[ See disclaimer ] [ Return ]

Overview of Immigration Status Categories

All Persons in the U.S. have an immigration status. These are:

U.S. Citizen - U.S. citizenship is usually gained by persons at birth in the US. It also may be gained by birth to U.S. citizen parents or through naturalization.
Permanent Resident - A permanent resident can be called an "Immigrant". Permanent residency gives an alien the right to reside permanently in the US while maintaining his/her own non-US citizenship. Generally permanent residents are the only ones eligible for naturalization.
Temporary Resident - Generally temporary residents are persons who have apllied for legalization or amnesty. A temporary resident eventually becomes a permanent resident or loses resident status.
Nonimmigrant - An alien who comes to the U.S. temporarily for some purpose such as study, business or tourism. Normally a nonimmigrant leaves the U.S. at a determined time although it is possible to change status while in the U.S.
Asylee - A person who has been granted asylum but has not yet been granted permanent residency.
Temporary Protected Status - Persons from designated countries who have been granted the right to remain and work in the U.S. for a specified time. This is generally due to adverse and extraordinary circumstances in their home country.
Out of Status - Usually a nonimmigrant who entered the U.S. with legal status but who has violated the terms of admission (e.g. overstay).
Undocumented Alien - Person who has entered the U.S. illegally (without valid entry status or documentation). [Return ]

U.S. Visa Categories

A. Immigrant Visa Categories

1. Employment Based Immigrant Visas

This category includes all aliens who either wish to come to the U.S. for permanent employment (with the right to permanent residence-"Green Card") or who wish to change their temporary nonimmigrant status to a permanent worker status.[ More ] [ Return ]

2. Family Related Immigration Visas

General

Visa allocation shows that the U.S. places a high priority on family reunification in U.S. immigration laws. A large percent of all visas allocated are reserved for family based immigration, for immediate relatives and family preference categories and for spouses and children of newly legalized aliens. These numbers can be increased by unused employment based preferences of the proceeding year. There is an overall limit for family sponsored visas, immediate relatives are admissible in unlimited numbers.

There is also a per country cap on family immigration visas calculated as percentages of the total available. This per country cap is set at 7% per foreign state and 2% per dependent territory. The numerical allotment system is quite complex and variable. If you have specific questions regarding this system, it is best to contact an experienced immigration attorney.

Immediate Relatives

Spouses of U.S. Citizens
Minor Children (Under 21) of US citizens
Parents of U.S. Citizens over 21
Spouses of deceased U.S. Citizens (married at least 2 yrs at death)

Family Related Preference Immigrants Classifications

1st Preference - Adult (over 21) unmarried children of lawful permanent residents
2nd Preference - Spouses and minor children (or unmarried sons or daughters) of lawful permanent residents
3rd Preference - Married children of US citizens
4th Preference - Brothers & sisters of adult US citizens
Derivative Beneficiaries - Spouse or child of principal alien under family sponsored preferences.

B. Nonimmigrant Visa Categories.

This category includes all who wish to travel to the U.S as a temporary (nonimmigrant) person. This category includes:

1. General Categories(B, K, C, D)

Visitor for Business B-1
Visitor for Pleasure:Tourists B-2
Fiancee K-1
Transit C-1
Crewmen D-Visa

[ More ]

2. Student and Exchange Categories (F, J, M, O)

Student F-1 (Student spouse F-2)
Exchange Visitor J-1
Cultural Exchange Visitors Q-Visa
Special Education Exchange Visitors

[ More ]

3. Employment Based Nonimmigrant Visas (E, H, L, O, P, R,TN)

O & P Outstanding Artists, entertainers, Scientists, and Certain Business Professionals
H Temporary Workers

H-1A - Professional registered Nurses
H-1B - Workers in specialty occupations (mostly professional)
H-2A - Temporary agricultural workers in short supply
H-2B - Temporary non-agricultural workers in short supply
H-3 - Trainees
H-4 - Spouses and children accompanying principal H worker

L-1 Intracompany Transferees
R Religious Workers
E Treaty Traders and Investors.
TN Canadian Professionals

[ More ]

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The Labor Certification Process

In general aliens who do not fit into family based immigration categories require labor certification (LC) to be able to immigrate to the U.S. A labor certification is an approval by the Department of Labor (DOL) for an offer of employment in the U.S. to a named alien. The alien may be either physically in the U.S. at the time or in another country. Once the employer has received an approved labor certification from the DOL then the Alien may then file an immigrant petition with the U.S. Immigration and Naturalization Service (USINS). The immigrant petition leads to permanent resident status for the alien. [ More ] [ Return ]

Quotas

Certain categories of visas are subject to yearly numerical limitations (Quotas). When more approved applications for visas are received, than are available visas, waiting lists develop. Approved applications for each type of visa are place in line by date and are approved when an opening comes up. The Department of State issues a Monthly Bulletin listing the dates that each category is up to. Some visa categories tend to stay current (C), that is, with no waiting list. Some have cut-off dates which means that only applicants with dates (visa numbers) prior to that date can get a visa for that month. Some categories for some countries may be unavailable (U).

Currently the Quota system separates immigrant visas into family and employment based categories. Certain immigrants are not subject to numerical limitations. Additionally there are visas per countries limits set up along with the category limitations. [ More ] [ Return ]

Asylum

The ability to immigrate to the U.S. on the basis of an asylum request is recognized in the U.S. The U.S. was first populated in significant part by political and religious refugees, and as a result, the people of the U.S. have always been especially sympathetic to asylum requests. A large body of immigration laws and procedures deal with this issue.

According to the Immigration and Naturalization Act (INA): The Attorney General (AG) shall establish a procedure for an alien physically present in the U.S. or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the AG if the AG determines that such alien is a "refugee" within the meaning of the law.

A "refugee" is defined as "any person who is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution (or a well-founded fear of persecution) on account of race, religion, nationality, membership in a particular social group, or political opinion." From these two statements has grown a very sizable body of law, regulations and procedures as well as case law. [ More ] [ Return ]

Exclusion & Deportation

Pursuant to U.S. immigration law, an alien, in order to enter legally into the US, must not belong to one of the "grounds of exclusion" unless the ground of exclusion is waivable and he/she actually obtains a waiver. General grounds for exclusion are:

Medical (communicable diseases, addictions, mental disorders, etc.)
Criminal (persons convicted of certain crimes, or number of convictions, drug traffickers, etc.)
Security (terrorists, totalitarians, etc.)
Public Charge (persons likely to become public charges in the US)
Labor (Person's seeking work without approved labor certification)
Illegal Entrants and Immigration Violators
Documentation Requirements (Persons not in possession of valid immigration documents)
Ineligible for Citizenship (Person's permanently ineligible for citizenship or Draft Evaders)
Miscellaneous (Polygamists, guardians of excluded child, child abductors)
[ Return ]

Citizenship & Naturalization

Once an alien has valid permanent residence status in the U.S. he/she is eligible for naturalization (gaining of U.S. citizenship). There are many requirements that must be met in this process including: residency, character, U.S. history knowledge, good moral character and spoken English ability.[ Return ]

Employer Sanctions and Employment Documentation

The Immigration Reform and Control Act of 1986 made employers liable for the knowing employment of aliens not authorized to work in the U.S. by the USINS. Employers are now required to maintain (but not file) forms (I-9) showing all employees are authorized to work in the U.S. Disregard of this law and even errors in maintaining information can result in substantial civil penalties for the employer. [ Return ]

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Svetlana Schreiber & Assoc., Co. L.P.A.
1370 Ontario St, Suite 1228
Cleveland, Ohio 44113
216-621-7292
Toll free: 866-203-9388