Report on Immigration Law in the United States of America
Compiled By Benjamin J. Vail
October 2004
Introduction to US Immigration Law
Citizenship
Naturalization
Lawful Permanent Residency
Asylum and Refugees
Appendix A: International Adoption
Appendix B: Types of US Immigrant and Non-Immigrant Visas
Appendix C: A Brief History of US Citizenship Laws
Appendix D: Glossary of US Immigration Law Terms and Acronyms
Introduction to US Immigration Law
Sources Used for this Report
The two sources used in researching this report were the internet webpages of the Bureau of US Citizenship and Immigration Services and the Findlaw.com online legal information service, unless otherwise noted.
Recent Changes in US Immigration Law
United States immigration law has an international reputation for being complex and the agencies that serve immigrants have a reputation for being bureaucratic. Recent insitutional changes with the passage of the Homeland Security Act on March 1, 2003, are intended to streamline the administration of US immigration law. Responsibility for most aspects of immigration law enforcement and policy-making was transferred from the Attorney General to the Secretary of Homeland Security. The main agency for immigration affairs was transferred from the former Immigration and Naturalization Service within the Department of Justice to the US Citizenship and Immigration Services Bureau in the Department of Homeland Security. But the system remains complex and bureaucratic, if only because it takes time for such institutional change to become established and for precedents to be set.
US Immigration in Comparative Perspective
In many ways, individuals seeking to immigrate to the USA experience a very different legal structure and culture than those seeking immigration status in Europe. There are many different categories for immigration to the US, and legal rights and social benefits for individuals vary between categories.
Furthermore, the United States does not offer the same state-provided welfare benefits to immigrants as most European nations. Some immigrant categories permit legal employment within the US, but some do not. The children of immigrants or those seeking immigrant status may or may not be able to legally attend public schools, and may or may not be elibigle for state support for university studies. Individual immigrants, just like individual US citizens, are responsible for finding and paying for their own health care. Immigrants are generally responsible to obtaining and paying for their own legal representation in the immigration process.
Benefits under the US Social Security system to help pay medical expenses may not be available to immigrants in many categories. Retirement, disability, unemployment and other benefits also may not be available (in fact, such benefits are often of limited availability even to native-born US citizens). Some individuals seeking immigrant status may not enjoy all rights protected under the US Constitution, and only those naturalized as citizens may participate in the political process as voters.
Coming to the United States
Before departure, visitors to the US must ordinarily obtain a visa from the US government. Foreign nationals coming for a short visit need what is called a non-immigrant visa (this category includes tourist and student visas). People coming to make their home in America need an immigrant visa, which allows them permanent residence and a “green card.”
There are many categories of visas for non-immigrants and immigrants. Students and businesspeople make up the largest groups of non-immigrant visa holders. Non-immigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the US workforce.
Family members of US citizens make up the largest number of immigrant visas issued each year by the Department of State, the government agency responsible for issuing visas. Other immigrant visas are issued to investors and workers who have been petitioned by US employers or have special skills.
A visa is not necessary for visitors from one of the Visa Waiver Program countries, who may come for up to 90 days for business or pleasure purposes. However, such travelers automatically give up many rights and benefits when traveling without a visa.
A visitor cannot apply for a visa when s/he arrives at a US port of entry (though certain exceptions are made for Canadians). A visitor must obtain a visa at a US consulate before departing for the United States, unless s/he is a short-term visitor from a Visa Waiver Program country. If the visitors wishes to enter on a visa waiver, s/he presents his/her passport and ticket home to the officers upon arrival. If arriving by land through Canada or Mexico, the visitor is also asked for proof of sufficient funds to pay for the stay.
The Risks of Lying to the US Government
Lying during the visa application process, either on paper or during an interview with a US border or other immigration inspector, can have both immediate and long-term consequences.
Here’s an example: Francois, a French citizen, applies at the US embassy in Paris for a tourist visa. He fears he will not be allowed to enter the United States as a tourist if he reveals that he has a girlfriend in New York. He states in his application that he is visiting various friends around the country. When he arrives at JFK Airport in New York, an immigration inspector finds a letter in his luggage from his New York girlfriend, in which she says she is looking forward to his long visit with her. Francois is put on the next flight home.
Another example: Revisiting the example above, assume that the immigration inspector does not find the letter from Francois’s girlfriend and he is allowed to enter the country. After he arrives, Francois and his girlfriend decide to marry. He files an application for permanent residence with US Citizenship and Immigration Services (USCIS). USCIS forwards his application to the US consulate in Paris for review. This reveals that he lied about his plans. To obtain permanent residence, Francois will have to argue to the USCIS that the agency should overlook his previous lie and allow him to stay. If he loses, he can be denied permanent residence and be forced to leave the country.
Visitors’ Rights
Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process. A visitor can expect to be questioned several times: at the US embassy or consulate where s/he applies for a visa, at the airport or harbor when s/he begins the journey to the United States and when s/he arrives at the border.
The visitor cannot have a lawyer represent you when you arrive, nor is the visitor allowed to call one if problems occur during the interrogation. The visitor’s bags can be searched without permission, and border officials can ask almost any question.
If the visitor does not offer clear and reasonable answers to their questions, or it appears s/he lied to get the visa, the visitor can be sent back to his/her home country and prohibited from returning for five years. Only in rare cases, such as if the visitor feared persecution in his/her home country, will the visitor be allowed to appear before an immigration judge to prove that s/he should be allowed into the United States.
The New “US Visit” Program
(Source: BBC News)
Starting on September 30, 2004, most foreign travelers entering the US became subject to the requirements of the “US Visit” program.
Upon arrival in the US, visitors are photographed with a digital camera and inkless prints are taken of both their right and left index fingers with a scanner. These biometric details are then automatically checked against those of suspected terrorists and criminals. If you don’t appear to be any of these people, your details will be stored separately and you will be free to commence your stay in the US.
In the future, everyone will also be asked to “check out” when leaving the country. This will enable the authorities to find out whether someone is still in the US and is staying perhaps longer than permitted. Pilot exit procedures are currently operating at a number of air and sea ports to establish which procedure works best.
The scheme has been running since January 2004 for residents of all countries requiring a visa for any length of stay in the US. As of September 30, 2004, it was extended to include countries in the Visa Waiver Program (VWP) – that is those states whose residents are not required to obtain a visa for business or pleasure trips to the US of up to 90 days.
Travelers from these states still won’t require a visa for short trips, but they will now be fingerprinted and photographed to check their identity.
In addition, as of October 26, 2004, the passport carried by VWP country residents must be machine-readable, in which personal information is typed with encoded marks and numbers, rather than being hand-written.
Theoretically, individuals will not be allowed in the US with a non-machine readable passport after October 26, 2004, but officials say they will not turn away those with old-style documents (provided they are valid), at least in the short-term.
The VWP countries are Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
Canadian citizens do not participate in the US Visit program, although anyone traveling from Canada who is not Canadian does. At least initially, Mexicans traveling on so-called Border Crossing Cards for trips under 30 days and within the 25-mile border zone are exempt.
A machine-readable passport is not the same as a “smart” passport. A smart passport contains biometric details – unique attributes of the human body, like a fingerprint, a picture of the eye or facial structure. US legislation requires all VWP countries to issue passports containing specific biometric details after October 26, 2005.
Entry to the US on a non-biometric passport will still be possible after October 26, 2005, as long as the document was issued before this date. Theoretically, therefore, one could still use a non-biometric passport until it expires – possibly as late as 2015 – although the Americans may have changed the rules again by then.
US authorities are keen on biometric passports because they make it virtually impossible for anyone else to make use of the identity of a stolen passport since the biometric details wouldn’t match.
Since deploying US-Visit at 115 airports and 14 seaports in January 2004, more than 8.5 million foreign nationals have been processed without long waits, according to the US officials responsible who insist processing takes just 15 seconds per arrival.
The European Union earlier this year authorized airlines to hand over information about passengers headed for the US - including addresses, credit cards and e-mail details. Potentially, information about individuals will be checked against lists of suspected terrorists and criminals before they even set foot in the US.
Overview of US Immigration Law
Immigration is the act of entering a country with the intention of permanently living and/or working there, although US immigration laws also cover entry into the country for almost any purpose, including temporary stays beyond a certain length of time. Below is an overview of immigration processes in the United States.
Eligibility
The immigration system in the US is set up primarily to grant immigration status based on factors such as family reunification, in-demand work skills, and capital investment. The immigration system also covers refugees and asylum seekers, and provides a “lottery” for immigration status to people who have less pressing immigration needs. The procedure for gaining legal immigrant status will depend upon, among other factors, which path you are eligible to pursue based on your employment, education, and family situation.
Family
If an individual is seeking immigrant status based on the fact that they have a relative who is a US citizen or lawful permanent resident, the following is required:
• The individual must be eligible for lawful permanent residence based on a family relationship that is recognized under US immigration law. Not every relative is instantly eligible, and some immediate family members (spouses and children) are given preference over others.
• Form I-130, Petition for Alien Relative, must be filed by the individual’s relative (called a “sponsor”), along with proof of the family relationship, and the petition must be approved by the government (the US Citizenship and Immigration Services Bureau).
Employment
If an individual is seeking immigrant status based on a permanent employment opportunity, the following is required.
• The individual must be eligible under one of the five categories of employment-based immigration recognized under US law.
• The individual’s employer must complete and submit a labor certification request to the Department of Labor’s Employment and Training Administration.
• The individual’s employer must file an immigrant visa petition (usually Form I-140, Petition for Alien Worker) and the government must approve the petition.
Diversity Lottery
Through the Diversity Visa Lottery Program, immigrant visas are made available annually to people whose country of origin has low immigration rates to the United States. Each year, the State Department selects 110,000 applicants from all qualified entries. However, once 50,000 immigrant visas are issued, or the fiscal year ends, the lottery is closed. Immigrant visas are not available for people whose country of origin sent more than 50,000 immigrants to the United States in the last five years.
Capital Investment
Although relatively rare, if an individual makes a qualifying capital investment in the United States, he or she may be eligible for immigrant status, provided that:
• The investment meets a certain threshold dollar amount, benefits the US economy, and creates or saves a specific number of jobs.
• Form I-526, Immigrant Petition by Alien Entrepreneur, is filed with and approved by the government.
Refugees
To be eligible for refugee status, an individual must have suffered past (or be in fear of future) persecution on the basis of race, religion, nationality, political view, or membership in a certain group. An individual who is found eligible for refugee status must then satisfy certain medical and security criteria in order to be eligible for entry into the US. Political pressures make refugee status difficult to prove in some cases.
Immigration-related Government Agencies
In most immigration cases, the question of which agency to start with can be answered through the location of the individual needing assistance:
• If the individual is already inside the borders of the US and is in need of help with an immigration issue (including applications for lawful permanent residence, change of immigrant status, and citizenship), s/he will most likely want to contact US Citizenship and Immigration Services (USCIS).
• If the individual is a foreign citizen abroad or overseas and needs help with an immigration issue (such as an application for nonimmigrant visa for international travel, or refugee status), s/he will most likely want to contact a US Department of State embassy or consulate.
Note: The government agency that many people still associate with immigration – the Immigration and Naturalization Service (or “INS”) – no longer exists. In its place, in 2003 a branch of the US Department of Homeland Security (DHS) was created called the Bureau of US Citizenship and Immigration Services (or USCIS). More information about the USCIS follows below.
US Citizenship and Immigration Services
Created in 2003, the Bureau of US Citizenship and Immigration Services (USCIS) is a branch of the US Department of Homeland Security. USCIS is in charge of all immigration-related applications and authorizations for foreign individuals who are inside the borders of the US.
When a foreign individual seeks entry into the United States, s/he is subject to the authority of the USCIS and the Department of Homeland Security – including the power to authorize or deny admission into the US – even though the individual may have received a valid visa from a US embassy or consular overseas.
USCIS processes all immigrant and non-immigrant benefits provided to visitors of the United States, including:
• Family-based petitions – facilitating the process for close relatives to immigrate, gain permanent residency, work in the US, etc.;
• Employment-based petitions – facilitating the process for current and prospective employees to immigrate or stay in the US temporarily;
• Asylum and Refugee processing – deciding asylum and the processing of refugees; and
• Naturalization – approving citizenship of eligible persons who wish to become US citizens.
US Department of State
Foreign citizens who wish to learn more about immigration to the US should contact the US Department of State Embassy, or Consulate in their country. Once an individual enters the US, he or she is subject to the authority of the USCIS, as described above.
US Customs and Border Protection (CBP)
A branch of the US Department of Homeland Security, US Customs and Border Protection is the single unified border and port of entry agency of the United States. The CBP joins together the Customs Inspector, the Immigration Inspector and the Agriculture Inspector at the nation’s points of entry – borders, airports, and seaports. The CBP seeks to facilitate the flow of legitimate trade and travel through points of entry into the US, while preventing terrorist and other criminal activity from entering the US.
US Immigration and Customs Enforcement
US Immigration and Customs Enforcement (ICE), the largest investigative arm of the Department of Homeland Security (DHS), is the law enforcement agency responsible for identifying and shutting down vulnerabilities in the nation’s border, economic, transportation and infrastructure security. The ICE has authority over illegal immigrant detention and removal.
The Making of US Immigration Law
There are many sources of law governing immigration. First among these is the United States Constitution. A main source of immigration law is statutes (laws, public laws) enacted by Congress. Most of the laws affecting immigration are contained in the Immigration and Nationality Act, often referred to as “the Act” or the “INA.” Although the provisions (terms) of most statutes affecting immigration are reflected in the INA, many are not codified in the INA and must be found in the original legislation in which they were enacted.
Statutes usually provide broad authority and apply to general situations. Agencies must take the general provisions of the statute and apply them to specific, detailed situations. There are also immigration laws that involve other agencies. For example, both the Department of Labor and Department of State are involved in the administration of the immigration laws.
One source of legal interpretations of immigration laws and regulations are administrative decisions. The Board of Immigration Appeals is a separate agency that reviews immigration cases and issues appellate administrative decisions that are binding nationwide.
Basic Immigration Laws
Federal immigration laws cover a number of issues regarding the rights and duties of foreign nationals in the United States: defining an individual’s immigration status and immigration options, determining if a person is in the country illegally, and controlling whether or not an alien can be deported. Following is a discussion of the key federal law governing immigration – the Immigration and Nationality Act – and its supporting regulations.
The Immigration and Nationality Act (INA)
The Immigration and Nationality Act, or INA, was created in 1952. Before the INA, a variety of statutes governed immigration law but were not organized in one location. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law. The Act has been amended many times over the years, but is still the basic body of immigration law.
The INA is divided into titles, chapters, and sections. Although it stands alone as a body of law, the Act is also contained in the United States Code (USC.). The code is a collection of all the laws of the United States. It is arranged in fifty subject titles by general alphabetic order. Title 8 of the US Code is but one of the fifty titles and deals with “Aliens and Nationality”. When browsing the INA or other statutes there are often references to the US Code citation. For example, Section 208 of the INA deals with asylum, and is also contained in 8 USC. 1158. Although it is correct to refer to a specific section by either its INA citation or its US code, the INA citation is more commonly used.
The Immigration and Nationality Act has been amended many times. When Congress enacts a law, it generally does not re-write the entire body of law, or even entire sections of a law, but instead adds to or changes specific words within a section. These changes are then reflected within the larger body of law.
The language changing the larger body of law is generally referred to as the “amendatory” language. The INA is frequented amended, and is supported by federal regulations which are also in constant flux.
The INA and its related federal regulations cover:
• Who is an immigrant and who is a citizen
• Who can enter the country from abroad
• Who must have a visa to enter the country
• How visas are defined and administered
• How immigrants are processed
• Which immigrants can be removed (deported) from the country
• What immigrants must do to maintain their legal status
• How immigrants can become permanent residents or naturalized citizens
• Who qualifies as a refugee or asylum recipient
Increasingly, immigration law also deals with issues of terrorism prevention and investigation.
Changes to the Law
The INA has been amended many times since it was enacted more than 50 years ago, and some of these amendments have represented major changes to federal law. Regulatory changes and government reorganizations also impact immigration procedures. For example, the well-known Immigration and Naturalization Service (INS) was placed in the Department of Homeland Security and its functions split between different agencies. Most immigrants now deal with the US Citizenship and Immigration Services (USCIS) bureau.
Over the past few years, immigration law has become much more strict, with more stringent visa requirements and longer waits for administrative actions. Fees and penalties have also been raised. Recently, the government has started collecting biometric information from immigrants in order to better identify people in the system.
Title 8, Code of Federal Regulations (8 CFR)
The general provisions of laws enacted by Congress are interpreted and implemented by regulations issued by various agencies. These regulations apply the law to daily situations.
Once Congress passes a law, rules or regulations are developed by an agency. These rules/regulations describe how the agency will implement the law. “Rules” and “regulations” mean the same thing. The Office of the Federal Register is the official government entity responsible for publishing all agency rules and regulations. Regulatory documents can amend, or propose to amend, the Code of Federal Regulations (CFR) by adding new language (text), revising or removing existing language, or by correcting existing language.
After regulations are published in the Federal Register, they are collected and published in the Code of Federal Regulations, commonly referred to as the CFR. The CFR is arranged by subject title and generally parallels the structure of the United States Code. Thus, Title 8 of the CFR deals with “Aliens and Nationality,” as does Title 8 of the US Code.
Public Notices, Rules and Regulations
• Proposed rules: These are documents published in the Federal Register that propose changes to an Agency’s regulations in the CFR and request public comments on those suggested changes. In compliance with the Administrative Procedures Act (APA) (5 USC. 553), most documents should be published first as proposed rules.
• Interim rules: Usually an Agency will issue an interim rule if there is a statutory or emergency requirement to issue regulations immediately. Interim rules are documents that have the same legal effect as final rules in that they amend the CFR and give an effective date. Even though there is an effective date for the interim rule, immigration authorities often ask for public comments. After the comment period expires, the authorities amend the interim rule by issuing a final rule.
• Final rules: Final rules are documents that formally change/amend the CFR by adding, revising, or removing language/text, sections, or whole parts of the existing regulations. Public comments submitted in response to a Proposed or Interim rule may lead to the modification of the final regulations. A regulatory document that amends the CFR text must publish each change to the CFR in full and state the effective date for any change.
• Notices: Documents published in the Federal Register that discuss or explain matters of general concern to the public and are published for public information. Typical notice documents announce meetings and application submission dates. Notices do not amend the CFR.
Interpretations
Operation Instructions (OIs) as well as Interpretations were created to supplement and clarify the provisions of the statute and regulations. These materials usually are not included in the regulations because they deal generally with procedural matters and do not deal directly with application and benefit requirements. They are still a useful tool to help you understand how the DHS Bureaus perform their different immigration services and enforcement functions. Users of the Operation Instructions and Interpretations should always consult the relevant regulations and manuals in conjunction with these materials. As the Bureaus have grown, the trend has been towards inclusion of more materials in the regulations and field manuals, and the Operations Instructions and Interpretations have been updated less frequently.
Administrative Decisions
The Board of Immigration Appeals, commonly referred to as the BIA, issues appellate administrative decisions that are binding on the DHS Bureaus responsible for enforcing immigration laws nationwide. Decisions of the BIA are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. The BIA is not a Federal court, but its decisions are subject to judicial review in the Federal courts. The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by DHS Bureau offices in a wide variety of proceedings in which the DHS Bureaus are one party and the other party is either an alien or a citizen. The BIA is part of the Executive Office for Immigration Review – a separate federal agency that is a component of the Department of Justice.
Challenging Immigration Decisions
Foreign nationals seeking to enter the United States to work, study, get married, or do business may need to apply for a visa. Individuals already enjoying permanent resident status may wish to start the naturalization process in order to become a US citizen. Sometimes, the USCIS denies petitions for relief or takes other adverse action against these applicants. The INA and its associated regulations give many applicants the right to challenge those outcomes before an administrative tribunal rather than in a courtroom (although once all administrative options are exhausted, some cases can be brought before a court). If an individual needs legal help with such a challenge, s/he is advised to contact an immigration attorney to discuss the situation and protect his/her rights under the law.
Citizenship
A citizen of the United States is a native-born, foreign-born, or naturalized person who owes allegiance to the United States and who is entitled to its protection. In addition to the naturalization process, the United States recognizes the US citizenship of individuals according to two fundamental principles: jus soli, or right of birthplace, and jus sanguinis, or right of blood.
The 14th Amendment of the US Constitution guarantees citizenship at birth to almost all individuals born in the United States or in US jurisdictions, according to the principle of jus soli. Certain individuals born in the United States, such as children of foreign heads of state or children of foreign diplomats, do not obtain US citizenship under jus soli.
Certain individuals born outside of the United States are born citizens because of their parents, according to the principle of jus sanguinis (which holds that the country of citizenship of a child is the same as that of his/her parents). The US Congress is responsible for enacting laws that determine how citizenship is conveyed by a US citizen parent or parents according to the principle of jus sanguinis. These laws are contained in the Immigration and Nationality Act.
Information on who is a citizen or national at birth can be found in the following sections of the INA: § 301, § 302, § 303, § 304, § 305, § 306, § 307, § 308, and § 309. The definition of “country of citizenship” is: The country in which a person is born (and has not renounced or lost citizenship) or naturalized and to which that person owes allegiance and by which he or she is entitled to be protected.
The procedure for applying for proof of citizenship is contained in 8 CFR 341: “The application shall be supported by documentary and other evidence essential to establish the claimed citizenship, such as birth, adoption, marriage, death, and divorce certificates.”
Each year, many people adopt children from outside the US. The INA provides information on children and citizenship (including for those adopted abroad) in § 320 and § 322. See Appendix A for more information about international adoption.
In 2000, the US Congress passed the Child Citizenship Act, which impacts the INA. Persons who became citizens under the previous § 320 or the repealed § 321 are still citizens even though the law that made them citizens is no longer in force. These individuals may apply for Certificates of Citizenship at any time.
A foreign citizen or national can become a US citizen through a process called naturalization. The privilege of citizenship requires allegiance to the United States. In return, a citizen is entitled to its protection. Many permanent residents choose to further formalize their relationship to the United States each year. They are motivated by loyalty and love of their adopted country, as well as an interest in the benefits they will receive as citizens. It makes sense to hire an attorney to help with naturalization – the application must be completed correctly, and the applicant must pass two tests to be naturalized.
Benefits of Citizenship
A US citizen enjoys many rights and privileges that are not available to non-citizens. Included among these rights and privileges are:
• Voting. The privilege to participate in government by electing those who create, debate, and enforce the law.
• Holding public office. The privilege to be elected and to serve in any public office (except that of the Vice-President or the President of the United States).
• Traveling. The privilege of having a US passport allowing the freedom to travel, as well as to receive government protection and assistance when traveling abroad.
• Extending citizenship to your children. Permanent resident children under the age of eighteen, who are in the legal and physical custody of the naturalizing parents automatically become US citizens when their parents become naturalized. Children born after naturalization also receive citizenship through jus sanguinis.
• Reuniting families. The privilege of helping immediate relatives (spouses, parents, minor and unmarried children) obtain their visas without extended delay.
Responsibilities of Citizenship
Along with the rights and privileges of citizenship come certain responsibilities, including:
• Give up prior allegiances to other countries.
• Support and defend the Constitution and the laws of the United States.
• Swear allegiance to the United States.
• Serve the United States (e.g., in military service) when required.
US citizenship can be obtained in one of four ways:
• birth in the United States or its territories
• birth to US citizen parents
• naturalization (the grant of citizenship after an application and exam), or
• naturalization of one’s parents.
Determining Citizenship
If you were born on US soil, were born to US citizen parents or became a naturalized US citizen and you have been living in the United States, you clearly have US citizenship. But many people are US citizens and don’t know it. Most fall into one of three groups:
• People born in the United States who have lived most of their lives in other countries. If you fall into this category, you may mistakenly believe that your long absence from the country, plus voting or military activities elsewhere, have stripped you of US citizenship. This is not the case.
• People who have American citizens in their direct line of ancestry. If you have direct ancestors who were US citizens, you may not realize that – even though you were born elsewhere and your American ancestors have not lived in the United States for a long time – US citizenship has been passed down the line.
• Children of naturalized US citizens who were never themselves naturalized. Children under the age of 18 cannot normally become naturalized US citizens. However, when parents become naturalized, minor children with green cards gain US citizenship automatically.
Many people are unaware of these and other nuances in the laws of US citizenship. Here is an explanation of each one in turn:
Birth in the United States
A child born on American soil automatically gets US citizenship, unless the child is born to a foreign government official who is in the United States as a recognized diplomat. Children born in certain US territories – Puerto Rico, the Virgin Islands and Guam – may also acquire US citizenship (see Title 8 of the US Code). Anyone born with US citizenship retains it for life unless he or she deliberately gives it up – for example, by filing an oath of renunciation.
Birth to US Citizen Parents
In many circumstances, even though a child is born outside the United States, if at least one parent was a US citizen at the time of the child’s birth, the child automatically “acquires citizenship” (the legal term for this situation). When this child marries and has children, those children may also acquire US citizenship at birth.
The laws governing whether or not a child born outside of the United States acquires US citizenship from his or her parents have changed several times. The law that was in effect on the date of the child’s birth determines whether he or she acquired US citizenship from a parent or grandparent. See Appendix D for more details.
Obtaining Proof of US Citizenship
If you believe you are a US citizen, you’ll want a document to prove it. If you were born on US soil and there is a record of your birth, a standard US birth certificate issued by a state government is your primary proof of US citizenship. (Birth certificates issued by hospitals are not official records and do not serve as proof of citizenship.)
If you were naturalized in the United States, you will have a naturalization certificate. However, if your birth took place outside the territorial United States and you acquired US citizenship through your parents, you will not have either of these documents. In this case, you will have to apply for another document. The three types of documents that will work are:
• US passports
• certificates of citizenship, or
• certificates of consular registration of birth.
US Passports
If you were born abroad to US citizen parents, you can apply for a US passport in the same way as someone born in the United States. However, you will have the added requirement of establishing your citizenship claim. Passports are available from passport offices in the United States or at US consulates abroad, but experience shows that you have a better chance of succeeding by applying to a US consulate.
Wherever you apply, the evidence you’ll need to have on hand may include:
• proof of your parents’ US citizenship
• evidence that your parents complied with any applicable US residency requirements, and
• evidence that you fulfilled any necessary residency requirements, or that you were excused from doing so because you didn’t know about the law.
Evidence may take the form of birth or citizenship records, work or tax records, or affidavits from you (and perhaps even from your parents or grandparents), for example, explaining why you were unaware of your claim to US citizenship.
Certificates of Citizenship
You can also get proof of your citizenship by applying for a certificate of citizenship, using Form N-600, unless you’re a permanent resident child living outside the United States, in which case you’d use Form N-600K. If you’re claiming citizenship through your grandparents, attach the form called N-600/N-643 Supplement A. These forms are available on the website of US Citizenship and Immigration Services (USCIS, formerly called the INS), at www.uscis.gov.
Citizenship certificates are issued only by offices of USCIS located inside the United States.
Anyone with a claim to US citizenship can apply for a certificate of citizenship. In most cases it is more difficult to prove your citizenship through a certificate of citizenship application than by applying for a US passport, mostly because it takes more time. However, if your US citizenship was obtained automatically through the naturalization of a parent, a certificate of citizenship application is your easiest and best choice, because the evidence needed to prove your claim is usually obvious and easy to acquire.
Evidence of your claim to US citizenship should include your parents’ birth certificates, marriage certificates, and naturalization and citizenship certificates. You will also need your birth certificate, marriage certificate, or divorce decree to prove what your name is and to document any name changes you may have made in the past.
In many of the busier USCIS offices, it can take over a year to obtain a certificate of citizenship. You may have better luck applying for a passport instead (or try both).
Certificates of Consular Registration of Birth
If you were born outside the United States, and your parents were US citizens at the time, they may have registered your birth with a US consulate. If they did so within five years of your birth, they would have been issued what is called a Consular Registration of Birth Abroad. The consular registration is conclusive proof of US citizenship.
But, if your parents did not take the steps to register your birth with the consulate before you turned five years of age, there is no way of obtaining one now. Also, there is no way to obtain duplicates if your parents lost the original and any copies they received at the time of your birth. You will have to apply for a passport or certificate of citizenship using the procedures outlined above.
Dual Citizenship
Dual citizenship means that a person is a citizen of two countries at the same time, having legal rights and obligations in connection with both countries. While dual citizenship gives certain advantages, such as easy residency in multiple countries and access to government programs, dual citizenship can also make life more complicated. The dual citizen may have tax obligations in more than one nation, or may need to fulfill residency requirements between two homelands. Following is a discussion of dual citizenship and related legal issues.
Acquiring Dual Citizenship
A person in the United States may acquire dual citizenship in one of several ways, including:
• Being born in the United States to immigrant parents.
• Being born outside the United States to one parent who is a US citizen, and another parent who is a citizen of another country.
• Becoming a naturalized US citizen while maintaining citizenship in another country.
• Regaining citizenship in a country of origin after having become a naturalized US citizen.
If you hold multiple passports, it is important to keep those documents current and to use them appropriately in each country. You should also keep yourself apprised of citizenship requirements, such as tax obligations. If you do not fulfill your duties as a citizen to each country, you may be legally liable for those omissions.
Recognition of Dual Citizenship in the US
The United States does not formally recognize dual citizenship. However, it also does not taken any stand against it, either legally or politically. Typically, no American will forfeit his or her citizenship by undertaking the responsibilities of citizenship in another country. This is true even if the responsibilities include traveling with a foreign passport, voting in another country’s election, or running for and/or serving in public office of another country. In most cases, it is unimportant to the United States whether another country also claims you as a citizen.
The loss of US citizenship can only occur if a person’s actions demonstrate an intent to give up his or her citizenship. Such actions might include:
• Serving in the armed forces of a country which is engaged in hostilities against the United States.
• Formally renouncing one’s US citizenship in front of a duly authorized US official.
• Committing an act of treason against the United States, or attempting or conspiring to overthrow the US government.
Dual Citizenship – Getting Legal Help
If you hold a dual citizenship with the United States and another country, it is important that you understand the legal rights and obligations that you may have as a result. To learn more, and to discuss the specifics of your situation, contact an experienced immigration attorney.
Naturalization
Requirements for Naturalization
If an individual does not gain US citizenship through either birth or descent, he or she may achieve citizenship through naturalization. Naturalization involves the acquisition of citizen status through specialized legal processes. To become a naturalized citizen of the United States, a foreign national first must meet several legal standards:
Age
A naturalization applicant must be at least eighteen years old. Parents or adoptive parents can file applications on behalf of children under this age with their petitions. Most children receive derivative citizenship with their parents, and need not satisfy the five-year residence requirement.
Entry, residence, and physical presence
The applicant must lawfully enter the country and gain legal permanent resident status. Individuals who have been lawfully admitted as permanent residents will be asked to produce an I-551, Alien Registration Receipt Card, as proof of their status. After becoming a legal resident, a foreign national must reside in the United States continuously for five years (or three years for spouses of American citizens). During that period, he or she must be physically present in the country for at least fifty percent of the time. This “probationary” period allows the foreign national to become fully acclimated to American life and systems so that he or she can fully participate in the national community upon becoming a citizen.
Literacy and education
The applicant must possess the ability to understand, speak, read, and write basic English. Certain older applicants may receive an exemption from this requirement if their residence is of long standing. Applicants must also demonstrate knowledge of US history, politics, and government. The Department of Homeland Security administers an examination to applicants that they must pass to qualify for naturalization. Applicants may take the exam more than once if required.
Moral character
Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a US citizen or one year for Armed Forces expedite) prior to filing for naturalization. The government is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the INA on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:
• has committed and been convicted of one or more crimes involving moral turpitude
• has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
• has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana
• has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more
• has committed and been convicted of two or more gambling offenses
• is or has earned his or her principle income from illegal gambling
• is or has been involved in prostitution or commercialized vice
• is or has been involved in smuggling illegal aliens into the United States
• is or has been a habitual drunkard
• is practicing or has practiced polygamy
• has willfully failed or refused to support dependents
• has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.
Attachment to Constitutional principles
Applicants must show they are “attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the United States.” This requirement ensures that new citizens generally agree with the philosophical foundation of the community. Attachment to the Constitution includes a commitment to the Bill of Rights and a belief in representative democracy. Individuals well disposed to good order and happiness can show they like the United States and believe in its political systems.
Language
Applicants for naturalization must be able to read, write, speak, and understand words in ordinary usage in the English language. Applicants exempt from this requirement are those who on the date of filing:
• have been residing in the United States subsequent to a lawful admission for permanent residence for at least 15 years and are over 55 years of age;
• have been residing in the United States subsequent to a lawful admission for permanent residence for at least 20 years and are over 50 years of age; or
• have a medically determinable physical or mental impairment, where the impairment affects the applicant’s ability to learn English.
United States Government and History Knowledge
An applicant for naturalization must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States. Applicants exempt from this requirement are those who, on the date of filing, have a medically determinable physical or mental impairment, where the impairment affects the applicant’s ability to learn US History and Government.
Applicants who have been residing in the US subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 65 will be afforded special consideration in satisfying this requirement.
Oath of allegiance to the United States
The applicant must pledge allegiance to the United States, renouncing other national allegiances. The pledge includes an obligation to support the Constitution and to bear arms on behalf of the United States if required. In certain instances, where the applicant establishes that he or she is opposed to any type of service in armed forces based on religious teaching or belief, DHS will permit these applicants to take a modified oath.
The oath of allegiance is: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”
In some cases, INS allows the oath to be taken without the clauses:
“. . .that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by law. . .”
Waivers, Exceptions, and Special Cases
Spouses of US Citizens
Generally, certain lawful permanent residents married to a US citizen may file for naturalization after residing continuously in the United States for three years if immediately preceding the filing of the application:
• the applicant has been married to and living in a valid marital union with the same US citizen spouse for all three years;
• the US spouse has been a citizen for all three years and meets all physical presence and residence requirements; and
• the applicant meets all other naturalization requirements.
There are also exceptions for lawful permanent residents married to US citizens stationed or employed abroad. Some lawful permanent residents may not have to comply with the residence or physical presence requirements when the US citizen spouse is employed by one of the following:
• the US Government (including the US Armed Forces);
• American research institutes recognized by the Attorney General;
• recognized US religious organizations;
• US research institutions;
• an American firm engaged in the development of foreign trade and commerce of the United States; or
• certain public international organizations involving the United States.
Children
An individual whose parents were naturalized when s/he was a child may have “derived citizenship” without knowing it. The most recent law allows children to derive citizenship from their parents even if the parents received their citizenship by some means other than naturalization (such as by birth in the United States).
There are several ways foreign-born children of US citizens may obtain evidence of citizenship. Generally, US citizen parents of children born abroad may file a N-600 Application for Certificate of Citizenship. This form should be completed in accordance with the instructions provided and should be accompanied by 2 photographs of the child, copies of any documents that verify eligibility, and the required filing fee to be considered complete and ready to process.
Children born abroad of US citizen parents derive citizenship from their parents. The Certificate of Citizenship is merely a record of citizenship - it does not confer citizenship on an applicant.
Adopted children of citizen parents acquire citizenship. For adopted children, adoptive parents file an N-643 instead of an N-600. However, adopted children over 18 must file an N-400. See Appendix A for more information about international adoption.
Veterans of US Armed Forces
Certain applicants who have served in the US Armed Forces are eligible to file for naturalization based on current or prior US military service. Such applicants should file the N-400 Military Naturalization Packet.
Lawful Permanent Residents with Three Years US Military Service
An applicant who has served for three years in the US military and who is a lawful permanent resident is excused from any specific period of required residence, period of residence in any specific place, or physical presence within the United States if an application for naturalization is filed while the applicant is still serving or within six months of an honorable discharge.
To be eligible for these exemptions, an applicant must:
• have served honorably or separated under honorable conditions;
• completed three years or more of military service;
• be a legal permanent resident at the time of his or her examination on the application; or
• establish good moral character if service was discontinuous or not honorable.
Applicants who file for naturalization more than six months after termination of three years of service in the US military may count any periods of honorable service as residence and physical presence in the United States.
An applicant who has served honorably during any of the following periods of conflict is entitled to certain considerations:
• World War I - 4/16/17 to 11/11/18;
• World War II - 9/1/39 to 12/31/46;
• Korean Conflict - 6/25/50 to 7/1/55;
• Vietnam Conflict - 2/28/61 to 10/15/78;
• Operation Desert Shield/ Desert Storm - 8/29/90 to 4/11/91; or
• any other period which the President, by Executive Order, has designated as a period in which the Armed Forces of the United States are or were engaged in military operations involving armed conflict with hostile foreign forces.
Applicants who have served during any of the aforementioned conflicts may apply for naturalization based on military service after qualifying service and the requirements for specific periods of physical presence in the United States and residence in the United States are waived.
Automatic US Citizenship Through Naturalized Parents
When a parent naturalizes, her children may become US citizens automatically, provided they have green cards and are under age 18 and living with the parent at the time. Becoming a US citizen in this way has a special benefit: a child who gets US citizenship through the naturalization of either or both parents does not have to participate in a naturalization ceremony.
The laws on automatic naturalization of children have varied over the years. Whether or not you achieved US citizenship is determined by the laws that existed when your parents’ naturalization took place.
Parents Naturalized Before May 24, 1934
If either parent naturalized before your 21st birthday and you held a green card at the time, you automatically derived US citizenship. This applied to children born outside of marriage, though if your US citizen parent was your father, he must have legally legitimated you. Adopted children did not qualify.
Parents Naturalized From May 24, 1934 to January 12, 1941
If both parents naturalized before your 21st birthday and you held a green card at the time, you automatically derived US citizenship. This applied to children born outside of marriage if the father legally legitimated them. Adopted children did not qualify.
If only one parent naturalized before your 21st birthday, you derived US citizenship automatically if you held a green card for at least five years. The five years could have occurred before or after your parent naturalized. For example, if at the time your parent naturalized you had held a green card for only three years, you automatically became a US citizen whenever you accumulated the five-year total.
Parents Naturalized From January 13, 1941 to December 23, 1952
You derived US citizenship if both parents naturalized before your 18th birthday and you held a green card at the time. If your parents were legally separated, you derived citizenship when the parent having legal custody naturalized. At this time, the law did not permit children born outside of marriage or adopted children to derive citizenship.
Parents Naturalized From December 24, 1952, to October 4, 1978
You derived US citizenship if you were under the age of 16, unmarried and holding a green card at the time both parents naturalized. This applied to children born outside of marriage if the father legally legitimated them. Adopted children did not qualify.
Parents Naturalized October 5, 1978 to February 26, 2001
You derived US citizenship if one of your parents was a US citizen when you were born and never ceased to be a citizen, and your other parent naturalized before your 18th birthday. You must have been unmarried and lawfully admitted as a permanent resident at the time of your parent’s naturalization. This law applies to all children, including those who are born outside of marriage and adopted. However, adopted children born before December 29, 1981 or after November 14, 1986 obtain US citizenship only if the adoption occurred before their 16th birthday.
Parents Naturalized February 27, 2001 to Present
You derived US citizenship if: (1) one of your parents was born in the United States or became a naturalized citizen, (2) you were living with that parent while under the age of 18 and (3) you had a green card (lawful permanent residence). This law applies to both natural and adopted children.
Lawful Permanent Residency
People all over the world have heard of green cards – more properly known as “alien registration receipt cards.” Years ago, these cards were green. Then, for a while, they were red, white, and blue. Today they are pink, but the term green card has stuck.
Many people mistakenly believe that green cards are nothing more than work permits. While a green card does give an immigrant the right to work legally in the United States, that is just one of its features. Its main function is to identify the holder as a permanent resident of the United States. A work permit is a separate document, given to certain people who are staying temporarily.
Getting a green card is not an easy process. First, in most cases the applicant must have a sponsor in the United States, usually an American relative or employer who wants to bring him/her to the US. And the applicant must be able to convince the US government that s/he is eligible under one of the categories available for permanent residence. One must apply for an immigrant visa at the embassy or consulate in the country where s/he lives. (If the applicant is already in the United States, s/he may be allowed to stay there to apply directly for a green card, but usually only if s/he is there on a valid, unexpired visa.)
The embassy or consulate will review the green card application, making sure the applicant does not fall into any category of people who are excluded from the United States, which is called being “inadmissible.” Only then will one receive an immigrant visa stamped into the passport. The applicant must enter the United States within six months to claim his/her green card.
The law provides many categories of permanent residence (listed below). The applicant must fit into one of those categories to be eligible for a green card. There are often numerical limits or quotas within categories, and certain categories are given higher preference than others. This leads to long waits for certain people, because the demand for green cards is always higher than the annual limits.
An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States. A green card applicant must go through a multi-step process to become an immigrant. In most cases, USCIS must first approve the immigrant petition, usually filed by an employer or relative. Then, an immigrant visa number must be available to the applicant, even if s/he is already in the United States. After that, if s/he is already in the United States, s/he may apply to adjust to permanent resident status. If s/he is outside the United States, s/he will be notified to go to the local US consulate to complete the processing for an immigrant visa.
Applicants for adjustment to permanent resident status are eligible to apply for a work permit while their cases are pending. One does not need to apply for a work permit once one adjusts to permanent resident status. As a lawful permanent resident, s/he should receive a permanent resident card that will prove that s/he has a right to live and work in the United States permanently.
While the application for adjustment to permanent resident status is pending, the applicant must receive advance permission to return to the United States if s/he travels outside the United States. This advance permission is called Advance Parole. If the applicant does not obtain Advance Parole before leaving the country, s/he will abandon his/her application with USCIS and may not be permitted to return to the United States.
The only applications for permanent residency (Form I-485) which can be appealed to USCIS are those based on a marriage which took place while the alien’s application was in process or those based on Section 586 of Public Law 106-429, adjustment of status for certain nationals of Vietnam, Cambodia and Laos. These appeals must be made to the Administrative Appeals Unit (AAU).
Generally, the alien may appeal within 33 days after the immigration judge decides to remove him/her from the country. After the appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.
If advice is needed, aliens may contact the nearest USCIS District Office for a list of community-based, non-profit organizations that may be able to assist in applying for an immigration benefit.
The alien may be eligible to apply for adjustment to permanent resident status if s/he is already in the United States and if one or more of the following categories is applicable:
Immediate Relatives
There is no quota limit on the number of green cards that can be issued to immediate relatives of US citizens. Immediate relatives are defined as:
• spouses of US citizens, including recent widows and widowers
• unmarried people under the age of 21 who have at least one US citizen parent
• parents of US citizens, if the US citizen child is over the age of 21
• stepchildren and stepparents of US citizens, if the marriage creating the stepparent/stepchild relationship took place before the child’s 18th birthday, and
• parents and children of US citizens related through adoption, if the adoption took place before the child reached the age of 16.
Preferences
Those who receive green cards under categories with quotas fall into one of several classifications called “preferences.” A total of 480,000 green cards are available annually to people in the preference categories. Anyone in a preference category will have to wait for his/her green card, sometimes for years. Although there are a number of preference categories, they actually cover only two general types of people:
• certain family members of US citizens or permanent residents, and
• people with job skills wanted by US employers.
Group I: Family Preference Green Cards
• Family First Preference. Unmarried adults, age 21 or over, who have at least one US citizen parent.
• Family Second Preference. Section 2A: Spouses and unmarried children under age 21 of a green card holder. Section 2B: Unmarried children over age 21 of a green card holder.
• Family Third Preference. Married people, any age, who have at least one US citizen parent.
• Family Fourth Preference. Sisters and brothers of US citizens, where the citizen is age 21 or older.
Group II: Employment Preference Green Cards
A total of 140,000 green cards are offered in the employment categories each year.
• Employment First Preference. Priority workers, including the following three groups:
o persons of extraordinary ability in the arts, the sciences, education, business, or athletics
o outstanding professors and researchers, and
o managers and executives of multinational companies.
• Employment Second Preference. Professionals with advanced degrees or exceptional ability.
• Employment Third Preference. Professionals and skilled or unskilled workers.
• Employment Fourth Preference. Religious workers and various miscellaneous categories of workers and other “special immigrants.”
• Employment Fifth Preference. Individual investors willing to invest $1 million in a US business – or $500,000 if the business is in an economically depressed area. The investor must also employ at least ten workers.
Ethnic Diversity: Green Card Lotteries
A certain number of green cards are made available to people from countries that in recent years have sent the fewest immigrants to the United States. The total number of green cards offered in this category each year is currently 50,000. The purpose of this program is to ensure a varied ethnic mix among those who immigrate to America. The method used for distributing these green cards is a random selection by computer, so the program is popularly known as the green card lottery.
Special Immigrants
Occasionally, laws are passed making green cards available to people in special situations. The current special immigrant categories are:
• religious workers for legitimate religious organizations
• foreign medical graduates who have been in the United States since 1978
• former employees of the Panama Canal Zone
• foreign workers who were formerly longtime employees of the US government
• retired officers or employees of certain international organizations who have lived in the United States for a certain time, plus their spouses and unmarried children
• foreign workers who have been employees of the US consulate in Hong Kong for at least three years
• foreign children who have been declared dependent in juvenile courts in the United States, and international broadcasting employees.
Refuge and Political Asylum
The US government offers refuge to people who fear, or have experienced, persecution in their home country. The persecution must be based on the person’s race, religion, nationality, political opinion, or membership in a particular social group. A person still outside the United States would apply to be a refugee; a person already in the United States would apply for political asylum. The qualifications for refugee status and political asylum are similar. However, if the applicant is fleeing only poverty or random violence, s/he does not qualify in either category.
The number of refugees allowed into the United States each year is established by the US President. There is no limit on the number who can receive political asylum, except that only 1,000 immigrants will be accepted whose asylum claim was based on opposition to coercive family planning practices.
Temporary Protected Status
The US government may decide to give citizens of certain countries temporary safe haven in the United States when conditions in their homeland become dangerous. This is called Temporary Protected Status (TPS). TPS is similar to political asylum, except that it is always temporary and will never by itself qualify one for a green card.
Amnesty
The Immigration Reform and Control Act of 1986 (IRCA) gave amnesty to aliens who had been living in the United States illegally since January 1, 1982, by making green cards available to them. The deadline for filing applications was May 4, 1988. However, the “LIFE” Act created new opportunities for certain applicants whose cases have not yet been decided, and who were members of the “CSS,” “LULAC,” or “Zambrano” class action lawsuits. If an alien believes s/he may still be eligible for amnesty, s/he should check with an immigration attorney immediately.
Congress added an amnesty for Nicaraguan and Cuban nationals in a 1997 bill called the Nicaraguan Adjustment and Central American Relief Act (NACARA). Some provisions also benefit Salvadorans, Guatemalans, and Eastern Europeans. The deadline for filing applications has passed, but aliens are advised to check with an immigration attorney to see whether new opportunities have arisen.
Special Agricultural Workers
The Immigration Reform and Control Act of 1986 also contained an amnesty green card opportunity for agricultural laborers who worked in the fields for at least 90 days between May 1, 1985 and May 1, 1986. The filing deadline for these temporary residency applications was November 30, 1988. However, late applications may be accepted under rare circumstances.
Long-Term Residents and Other Special Cases
The law allows certain people who have lived illegally in the United States for more than ten years to obtain permanent legal residence. If an alien has been in the country illegally for more than ten years, s/he must show that his/her spouse or children – who must be US citizens – would face “extraordinary and exceptionally unusual hardship” if s/he were forced to leave the country.
If an alien believes that s/he meets this requirement, s/he should consult a lawyer before going to USCIS to make an application. If s/he does not fall clearly into this category, the alien may cause his/her own deportation by making this known to the authorities. In fact, this remedy is realistically available only to persons already in immigration court proceedings. USCIS has no obligation to act on any other application, and it may sit in its files for years – or until the law changes.
An alternate remedy called “registry” allows people who have lived in the United States continuously since January 1, 1972, to apply for a green card. To qualify, the applicant needs to show that s/he has good moral character and is not inadmissible. His/her stay in the United States need not have been illegal – time spent on a visa counts as well.
Finally, individual members of the US Congress have, on occasion, intervened for humanitarian reasons in extraordinary cases, helping an individual to get permanent residence even if the law would not allow it.
Other Visa Petition Considerations
Each approved visa petition is placed in chronological order according to the date it was filed, which is known as the “priority date.” The State Department publishes a bulletin that shows the month and year of the visa petitions they are working on by country and preference category. The petitioner can estimate of the amount of time it will take to get an immigrant visa number by comparing his/her priority date with the date listed in the bulletin.
If the Petition for Alien Worker is denied, the denial letter will explain how to appeal. Generally, one may file a Notice of Appeal along with the required fee at the appropriate USCIS Regional Service Center within 33 days of receiving the denial. Once the fee is collected and the form is processed at the Service Center, the appeal will be referred to the Administrative Appeals Unit in Washington, D.C. Sending the appeal and fee directly to the AAU will delay the process.
United States’ Employer’s Compliance
United States immigration laws make it illegal for businesses to employ foreign nationals who have not received USCIS permission to work in the US. In virtually all cases, employers are required to verify that all employees are authorized to work in the US. This requires companies to complete and maintain Form I-9, which records a review of the worker’s identity and work permission documentation. Employers who knowingly hire and continue to employ unauthorized workers, or who fail to complete and keep required documentation, are subject to serious penalties.
Many businesses and companies wish to retain their foreign executives, managers, skilled workers, and even non-skilled workers on a permanent basis. This requires skillful preparation of paperwork in order to obtain alien labor certification with the United States Department of Labor, and approval of employment-based immigrant visa petitions with the United States Citizenship and Immigration Services (USCIS). If there are questions about employment-based immigration visas, or a business seeks assistance with preparation and filing of an employment-based permanent residence petition, the business is advised to consult with an experienced immigration attorney.
A USCIS Form I-140 (Petition for Alien Worker) must be filed at the USCIS Regional Service Center that serves the area where the alien worker will work. Detailed information is provided in the instructions for Form I-140. Filing requirements differ for each category. For example, for EB-4 special workers (those in a religious occupation or vocation), the petitioner or employer must file USCIS Form I-360 (Petition for Amerasian, Widow(er), or Special immigrant) at the USCIS Regional Service Center that serves the area where s/he will work.
Becoming a Permanent Resident While in the United States
Those seeking to become a lawful permanent resident in the United States must file the following items with the US Citizenship and Immigration Services:
• Form I-485 Application to Register Permanent Residence or Adjust Status
• Review Supplement A to Form I-485 to see if additional fee requirements apply.
• Form G-325A Biographic Data Sheet (for those between the ages of 14 and 79)
• Form I-693 Medical Examination Sheet (not required if the application is based on continuous residence since before 1972, or if the alien had a medical exam based on a fiancé visa)
• Two color photos taken within 30 days.
• Form I-864 Affidavit of Support (completed by the sponsor). (This requirement may not apply if the alien is adjusting to permanent resident status based on an employment petition.)
• Form I-765 Authorization for Employment (if seeking employment while the case is processed).
• Evidence of inspection, admission or parole into the United States (Form I-94, Arrival Departure Record).
In addition, those who have been approved for an immigrant petition must submit a copy of the approval notice from the USCIS.
• If someone else is or has filed a petition for the alien that, if approved, will make an immigrant number immediately available to him/her, the alien must submit a copy of the completed petition that is being filed. Such applications include only immediate relative, special immigrant juvenile or special immigrant military petitions.
• If the alien was admitted into the United States as a fiancé of a US citizen and married that citizen within the required 90 days, s/he must submit a copy of the fiancé petition approval notice and a copy of the marriage certificate.
• If the alien is an asylee or refugee, s/he must submit a copy of the letter or Form I-94 (Arrival-Departure Record) that shows the date s/he was granted asylum or refuge in the United States. S/he also must submit USCIS Form I-643 (Health and Human Services Statistical Data).
• If the alien is a Cuban citizen or native, s/he must use USCIS Form I-485 (Application to Register Permanent Residence or Adjust Status) and submit evidence of his/her citizenship or nationality.
• If the alien has been a continuous resident of the United States since before January 1, 1972, s/he must submit evidence showing that s/he entered the United States prior to January 1, 1972 and that s/he has lived in the United States continuously since his/her entry into the country.
• If the alien’s parent became a lawful permanent resident after s/he was born, the alien must submit evidence that his/her parent has been or will be granted permanent residence. The alien must also submit a copy of his/her birth certificate, and proof of his/her relationship with the parent.
• If the alien’s spouse became a lawful permanent resident after they were married, the alien must submit evidence that his/her spouse has been granted permanent residence. The alien must also submit a copy of the marriage certificate and proof that any previous marriages entered into by the alien or his/her spouse were legally terminated.
Visa Number
If the petitioner is a Family- or Employment-based applicant, s/he must have an immigrant visa number available from the State Department unless s/he is in a category that is exempt from numerical limitations. Immediate relatives of United States citizens are exempt from this requirement. Immediate relatives of US citizens are parents, spouses, and unmarried children under 21. (For instance, the petitioner can apply to adjust to permanent resident status at the same time that his/her US citizen daughter files an application for the petitioner to become an immigrant.)
Other immigrant categories that are exempt from numerical limitations and do not need a visa number include special immigrant juvenile and special immigrant military petitions.
For the unmarried son or daughter (over 21 years of age) of a US Citizen, brother or sister of a US Citizen, or the spouse or children of lawful permanent residents, visa numbers are limited by law every year. This means that even if the USCIS approves an immigrant visa petition, the alien may not get an immigrant visa number immediately. In some cases, several years could pass between the time the USCIS approves an immigrant visa petition and the State Department grants an immigrant visa number.
Family-Based Immigration
Under federal law, citizens and legal permanent residents can sponsor (or “petition” on behalf of) their family members for immigration visas or “green cards.” Sponsorship based on certain family relationships avoids limitations on the number of visas released each year under other categories, but the more remote a family link, the fewer visas that are available annually.
In the eyes of US immigration officials, not all family relationships are equal. Some relationships receive higher priority than others, and some cannot form the basis for an application in the first place.
If the petitioner is a US citizen, s/he can petition on behalf of his/her:
• spouse, or child under 21 years old.
• parent (if the petitioner is at least 21 years old).
• unmarried child over 21 years old, and their children.
• married child of any age, and their children.
• sibling and his or her spouses and children (if the petitioner is at least 21 years old).
If the petitioner is a US permanent resident, s/he can petition on behalf of his/her:
• spouse, or child under 21 years old.
• unmarried child over 21 years old.
The priority for the family members identified above is lower the further down the list they appear; additionally, petitions by US citizens receive higher priority than those by permanent residents.
Temporary Fiancé(e) Visas
Temporary fiancée visas are also available for foreign nationals intending to marry an American. Under this type of visa, the foreign national must apply for the visa and receive permission to travel to the US for purposes of getting married. Once married, the foreign national must apply for permanent residence separate from the initial visa application.
A US citizen who is planning to marry a foreign national in the US must file a petition on behalf of his or her fiancé(e) before he or she comes to the US to get married. Both parties must be unmarried and must also have met within the last two years before filing for the fiancé(e) visa (although this requirement may be waived based on long-standing custom or extreme hardship). The marriage must take place within 90 days of the fiancé(e) entering the US, or the fiancé(e) will be subject to removal from the country. Federal immigration laws do not recognize same-sex partnerships for visa purposes.
The Family-Based Immigration Process
Immediate relatives (spouses and children under 21) experience the shortest waiting period. The law gives this category the greatest number of options and the quickest application review. Other relatives are subject to waiting periods because only a set number of visas are allowed for those categories each year – and there are always more visa applications than actual visas. When a family-based visa application is approved by the US Citizenship and Immigration Services, a US consular officer will issue the visa and the family member can travel to the United States.
The Immigration Process for Spouses
Before the petitioner files any documents, it is helpful to understand that “spouse” means lawful husband or wife. In order to successfully petition for an immigrant visa for a spouse, the petitioner’s relationship with his/her spouse must be established and the spouse must be admissible to the United States under the immigration law.
There is a three-step process for a spouse to become a legal immigrant:
1. The USCIS must approve an immigrant visa petition that the petitioner files for his/her spouse.
2. The State Department Visa Bulletin must show that a spouse immigrant visa is available for the spouse, based on the date the immigrant visa application is filed.
3. If the spouse is outside the United States when the visa petition is approved and when an immigrant visa number (if required) becomes available, the spouse will be notified to go to the local US consulate to complete the processing for an immigrant visa. If the spouse is legally inside the US when the visa petition is approved and when an immigrant visa number (if required) becomes available, he or she may use the Form I-485 to apply to adjust his or her status to that of a lawful permanent resident.
If the petitioner is a US citizen, his/her spouse is considered an immediate relative and is immediately eligible for an immigrant visa if the petition is approved. Generally, if the spouse is in the US (through a lawful admission or parole) at the time the Form I-130 (Petition for Alien Relative) is filed, the spouse may file a Form I-485, Application to Register Permanent Residence or to Adjust Status at the same time. If he or she is outside the US, the spouse will need to go to the nearest US consulate to apply for an immigrant visa.
If the petitioner is a lawful permanent resident and the petition for the spouse is approved, the spouse will be notified by the Department of State when a visa number becomes available. If the spouse is outside of the United States at the time of notification, he or she must then go to the local US consulate to complete visa processing. If the spouse is inside the US through a lawful admission or parole and is maintaining that status at the time of notification, he or she may file the Form I-485 when the visa number becomes available.
If a visa number issued by the Department of State is not yet available, the petitioner must wait for a number to become current. The spouse may need to depart the United States to avoid accruing unlawful presence.
If the petitioner was married to the spouse before the petitioner became a permanent resident, the spouse may be eligible to receive following-to-join benefits. This means that the peitioner would not have to submit a separate Form I-130, Petition for Alien Relative, for the spouse, and the spouse would not have to wait any extra time for an immigrant visa to become available.
If the couple has been married less than two years when the spouse is granted lawful permanent resident status, the spouse will receive permanent resident status on a conditional basis. The petitioner and spouse must apply together to remove the conditions on residence. Please note – the petitioner must apply to remove conditional status within 90 days before the 2-year anniversary of the award date of the spouse’s conditional legal permanent resident status. If the petition is not filed during this time, the spouse will be considered out of status as of the 2-year anniversary, and may be subject to removal from the US
If the petitioner is a US Citizen, once the Form I-130 is filed the spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the US to live and work while the visa petition is pending. The form to file for this benefit is Form I-129F. It is not necessary for the spouse to obtain a K-3 visa in order to come to the US to live and work. The spouse may wait abroad for immigrant visa processing. However, seeking a K-3 visa can be a method for him or her to come to the US more quickly.
Adoptions
A married US citizen and spouse may file a petition to adopt a foreign-born child. An unmarried US citizen may also file an orphan petition provided that he or she is at least 25 years of age. To speed up the adoption process, Form I-600A, Application for Advance Processing of Orphan Petition, may be filed before a specific child has been identified for adoption. After a child is identified and is shown to meet the Immigration and Nationality Act definition of “orphan,” Form I-600, Petition to Classify Orphan as an Immediate Relative, must be filed on behalf of the child. Please see Appendix A for more information about international adoption and US immigration law.
Gaining LPR Through Other Nationality-Based Programs
An alien may seek LPR status if his/her parent became a lawful permanent resident after the alien was born. The alien may be eligible to receive following-to-join benefits if s/he is the unmarried child under age 21 of the lawful permanent resident. In these cases, the alien may apply to adjust to permanent resident status at the same time that the parent applies for following-to-join benefits for the alien.
An alien may also seek LPR status if his/her spouse became a lawful permanent resident after the two were married. The alien may be eligible to receive following-to-join benefits. In these cases, the alien may apply to adjust to permanent resident status at the same time that his/her spouse applies for following-to-join benefits for the alien.
Otherwise Eligible Immediate Relatives
If “otherwise eligible” to immigrate to the US, immediate relatives may adjust status to LPR in the United States even if they may have done any of the following:
• worked without permission,
• remained in the US past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,
• failed otherwise to maintain lawful status and with the proper immigration documentation, or
• have been admitted as a visitor without a visa under sections 212(l) or 217 of the Act (which are the 15-day admission under the Guam visa waiver program and the 90-day admission under the Visa Waiver Program, respectively).
Please note: If a person came into the US illegally, that person is barred from adjusting their status to LPR even if he or she marries a US citizen or otherwise becomes an immediate relative. An immediate relative must meet the eligibility requirement of being “inspected and admitted or paroled into the United States.”
The Diversity Lottery
Each year, 50,000 immigrant visas are made available through a lottery to people who come from countries with low rates of immigration to the United States. None of these visas are available for people who come from countries that have sent more than 50,000 immigrants to the United States in the past five years. The State Department’s National Visa Center holds the lottery every year, and chooses winners randomly from all qualified entries. Anyone who is selected under this lottery will be given the opportunity to apply for permanent residence. If permanent residence is granted, then the individual will be authorized to live and work permanently in the United States. The individual will also be allowed to bring his/her spouse and any unmarried children under the age of 21 to the United States.
Only the winners will be notified by mail at the addresses listed on their applications. Winners will be sent instructions and information about fees. Being selected as a winner in the diversity visa lottery does not automatically guarantee that the individual will be issued a visa, even if s/he is qualified. The number of entries selected is greater than the number of immigrant visas available, because not everyone selected will be qualified for the visa or will choose to complete the processing. Once all 50,000 visas have been issued, the diversity visa program for the year will end.
Diversity Lottery Requirements
To be eligible to apply for the Diversity Lottery, the applicant must be a foreign national or the spouse of a foreign national from a country that is eligible to participate in the program. In some cases, an applicant is eligible if a parent was born in a foreign country that is eligible to participate. In addition, applicants must have a high school diploma or two years of work experience within the past five years, in an occupation that requires at least two years of training.
There are strict time guidelines for the electronic submission of Diversity Lottery applications – usually about a two-month window for application. Photograph requirements are also very specific in terms of format, resolution, size, focus, and the position of the person being photographed. Failure to meet these exact specifications will result in the application’s removal from the lottery. For the most recent lottery (2004), almost 3,000,000 applications were disqualified for failing to meet application requirements. Only one entry may be submitted for each Diversity Lottery period, although people who have already sought a visa under another visa category are eligible to submit under the Diversity Lottery as well.
The Application Process
Instructions are usually released in August, and the registration period is usually held in October each year. There is no fee for entering the diversity visa lottery. Those who win must pay a fee for an immigrant visa and a separate visa lottery surcharge.
An applicant sends his/her registration to one of the National Visa Centers during the appropriate mail-in period. If the registration directions are followed exactly, the registration will be entered into the pool from which registrants are chosen.
If selected, the applicant will be notified that his/her registration has been chosen. Once the applicant is notified, s/he must act as quickly as possible to obtain a green card. The National Visa Center notifies twice as many individuals as there are immigrant visas allocated. Green cards are then given on a first-come, first-serve basis.
If the applicant is not in the United States, s/he will apply for a green card at the US consulate or embassy in his/her home country using “Packet 3,” which should be included in the notification materials. If all goes well, the applicant will then receive “Packet 4,” which will have an interview appointment letter, more instructions, and more forms. In addition, the applicant must:
• have a medical examination.
• have an interview at the embassy or consulate where the forms will be verified and documents reviewed.
If all goes well, the applicant will return to the embassy later in the afternoon to pick up an immigrant visa. When traveling to the United States, the applicant’s passport will be stamped at the port of entry showing that s/he has become a permanent resident. It will serve as his/her authorization to work. The applicant must then order a green card, and it should arrive several months later.
If the applicant is in the United States, s/he will “adjust status” to obtain a green card by filing the appropriate forms with the immigration authorities. If the applicant wants to work while waiting for the adjustment to be processed, s/he must also apply for work authorization. If the adjustment and work authorization papers are filed in person, the applicant may get a work authorization immediately, although the authorities havesixty days within which to provide it. If all goes well, after several months, the applicant will receive a notice of an interview appointment. In addition, the applicant must:
• get a medical examination.
• attend the interview, where the forms will be verified and documents reviewed. If all goes well, the applicant’s passport will be stamped showing that s/he has become a permanent resident.
A green card will arrive in the mail after several months.
Ineligible Countries and Excludable Individuals
Foreign nationals of the following countries are not eligible for the 2005 Diversity Lottery: Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Individuals who have been convicted of certain crimes or who have certain communicable diseases may be automatically excluded from participation in the diversity lottery.
Legal Help with a Diversity Lottery Application
A simple error in the diversity lottery application can result in the application being rejected from the visa lottery altogether. Something as simple as meeting the strict time guidelines for electronic submissions or sending a picture that meets specifications can cost an applicant the opportunity to live and work in the US. To ensure the best chance in the diversity visa lottery for yourself or a loved one, the US government recommends applicants contact an experienced immigration attorney.
Immigration through Adjustment of Immigrant Status
US immigration laws allow qualified individuals to enter the United States as lawful permanent residents after they obtain immigrant visas from a consulate or embassy outside the United States or, for many immigrants already lawfully in the United States, through a process called “adjustment of status.” For those who entered the United States unlawfully, who entered with permission but did not stay in lawful status, or who worked without permission, they would normally have to leave the United States in order to apply for an immigrant visa. Special rules under section 245(i) may allow some to apply to adjust status without leaving the United States.
Note: Since April 30, 2001, immigrants cannot qualify for 245(i) benefits, but some may be eligible if their visa qualification petitions were previously filed.
Those seeking to adjust their status might need to use section 245(i) if they:
• Entered the US without being inspected by an immigration official.
• Stayed in the US longer than allowed by the authorities.
• Entered the US as a worker on an aircraft or ship (crewman).
• Entered the US as a “Transit Without Visa.”
• Failed to continuously maintain a lawful status since entry into the US.
• Worked in the US without official permission.
• Entered as an “S” nonimmigrant (relates to witnesses about criminal or terrorism matters).
• Are seeking a work-related visa and are out of status at the time of filing the application to adjust status (Form I-485).
• Worked in the US while being an “unauthorized alien.”
Those who may not need to use section 245(i) include:
• The spouse or unmarried minor child of a US citizen, or the parent of a child who is a US citizen at least 21 years of age (if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission) may apply for adjustment of status under section 245(a) instead of section 245(i).
• Certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, may be able to use section 245(k).
Eligibility
This program ended April 2001, but certain applicants may still be eligible. An applicant is eligible if circumstances prevent him/her from using the regular section 245 provision (as described above) and:
• S/he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence;
• An immigrant visa is immediately available at the time the application is filed;
• His/her visa petition or application for labor certification was filed on or before April 30, 2001, was approvable when filed; AND
• If the petition or application was filed after January 1, 1998, then the immigrant must also prove that s/he was in the US on December 21, 2000.
If the applicant is eligible, s/he must pay a penalty fee of $1,000.
The applicant must submit an adjustment of status package of forms (Form I-485 package) as well as Supplement A to Form I-485.
Work Permits
Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while the case is pending. They should use Form I-765 to apply for a work permit.
An applicant does not need to apply for a work permit once s/he is granted an immigrant visa or adjust to permanent resident status. As a legal permanent resident, the applicant should receive a permanent resident card that will provide evidence that s/he has a right to live and work in the United States permanently.
Travel Outside the USA
An applicant applying for adjustment to permanent resident status must receive advance permission to return to the United States if traveling outside the country. This advance permission is called Advance Parole.
However, if the applicant has accrued more than 180 days of unlawful presence and then travels abroad, s/he will be barred from adjustment of status for either three years or 10 years, even if granted “Advance Parole,” unless s/he is granted a hardship waiver. Generally, the three-year bar to admission applies to those who were unlawfully present in the United States for more than 180 days and leave the country, and the 10-year bar applies to those who were unlawfully present in the United States for one year or more and leave the country.
If an applicant does not apply for Advance Parole before leaving the country, s/he will abandon his/her application with USCIS, and may not be permitted to return to the United States.
Appeals Process
If an applicant’s application to adjust to permanent residence status is denied, s/he will receive a letter that will tell why the application was denied. If the applicant is not in a current, legal status, the process to remove him/her from the country will begin as soon as the application is denied. The applicant will be allowed to have an immigration judge review the denial of the application during removal proceedings. During this review, USCIS must prove that the facts on the application were untruthful and that the application was properly denied. If the immigration judge decides to remove the applicant from the country, the applicant may appeal this decision.
Generally, the applicant may appeal within 33 days after the immigration judge decides to remove him/her from the country. After the appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.
Immigration through Investment
Under US immigration law, 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. These individuals are often called “alien investors.”
Of the 10,000 investor visas (EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving a “Regional Center” designated by US Citizenship and Immigration Services (USCIS).
A “Regional Center:”
• Is an entity, organization or agency that has been approved as such by USCIS;
• Focuses on a specific geographic area within the United States; and ,
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
“Alien investors” must:
• Demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center; and,
• Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.
Visa Eligibility
Permanent resident status is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested – or are actively in the process of investing – the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.
In general, “eligible individuals” include those:
1. Who establish a new commercial enterprise by:
• creating an original business;
• purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
• expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
2. Who have invested – or who are actively in the process of investing – in a new commercial enterprise:
• at least $1,000,000, or
• at least $500,000 where the investment is being made in a “targeted employment area,” which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by the Office of Management and Budget; and
3. Whose engagement in a new commercial enterprise will benefit the United States economy and:
• create full-time employment for not fewer than 10 qualified individuals; or
• maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.
Immigration Under the National Interest Waiver for Physicians in Underserved Areas
The national interest waiver for physicians in underserved areas relieves petitioner from the labor certification process for an alien physician. The petitioner:
• Requests a national interest waiver on behalf of a qualified alien physician, or
• An alien physician self-petitioning for second preference classification, based on medical service in a Health and Human Services Department (HHS)-designated underserved area or a Department of Veterans Affairs (VA) facility, still must meet all eligibility requirements for this immigrant classification in order to be eligible for the national interest waiver.
Petition Document Requirements
The petitioner or self-petitioner must submit the following evidence with Form I-140 to support the request for a national interest waiver. For physicians planning to divide the practice of full-time clinical medicine between more than one underserved area, the following evidence must be submitted for each area of intended practice:
• If the physician will be an employee; a full-time employment contract (issued and dated within 6 months prior to the date the petition is filed) for the required period of clinical medical practice, or an employment commitment letter from a VA facility.
• If the physician will establish his or her own practice, the physician’s sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to actually take to establish the practice.
Evidence that the physician will provide full-time clinical medical service:
• In a geographical area or areas designated by the Secretary of HHS as having a shortage of health care professionals and in a medical specialty that is within the scope of the Secretary’s designation for the geographical area or areas; or
• In a facility under the jurisdiction of the Secretary of VA.
• A letter (issued and dated within 6 months prior to the date on which the petition is filed) from a Federal agency or the department of public health (or equivalent) of a State (including territories of the United States and the District of Columbia) attesting that the alien physician’s work is or will be in the public interest.
Any attestation from a Federal agency must reflect the agency’s knowledge of the alien’s qualifications and the agency’s background in making determinations on matters involving medical affairs so as to substantiate the finding that the alien’s work is or will be in the public interest.
An attestation from the public health department of a State, United States territory, or the District of Columbia must reflect that the agency has jurisdiction over the place where the alien physician intends to practice clinical medicine. If the alien physician intends to practice clinical medicine in more than one underserved area, attestations from each intended area of practice must be included. Attestations from the public health department of a State, United States territory, or the District of Columbia that does not have jurisdiction over the place in which the alien physician intends to practice clinical medicine will not be accepted.
Evidence must be shown that the alien physician meets the admissibility requirements established by section 212(a)(5)(B) of the Act.
If applicable, evidence must be shown of the Service-issued waivers of the requirements of sections 212(e) of the Act, if the alien physician has been a J-1 nonimmigrant receiving medical training within the United States.
Time Limit for Required Service
If the physician already has authorization to accept employment (other than as a J-1 exchange alien), the beneficiary physician must complete an aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of approval of the Form I-140.
If the physician must obtain authorization to accept employment before the physician may lawfully begin working, the physician must complete the aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date the necessary employment authorization document is issued.
More information regarding immigration under the national interest waiver for physicians in underserved areas and eligibility for adjustment of status following completion of required service may be found in sec. 204.12 and sec. 245.18 of the Code of Federal Regulations.
Immigration Visas for Battered Spouses and Children
Generally, US citizens and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the USCIS on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. Unfortunately, some US citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.
Under the Violence Against Women Act (VAWA), the spouses and children of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to seek safety and independence from the abuser.
Eligibility
To be eligible to file a self-petition (an application that is file for by the alien for immigration benefits) the alien must qualify under one of the following categories:
• Spouse: The alien may self-petition if s/he is a battered spouse married to a US citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on the petition as derivative beneficiaries.
• Parent: The alien may self-petition if s/he is the parent of a child who has been abused by the US citizen or lawful permanent resident spouse. The children (under 21 years of age and unmarried), including those who may not have been abused, may be included on the petition as derivative beneficiaries, if they have not filed their own self-petition.
• Child: The alien may self-petition if s/he is a battered child (under 21 years of age and unmarried) who has been abused by a US citizen or lawful permanent resident parent. The alien’s children (under 21 years of age and unmarried), including those who may not have been abused, may be included on the petition as derivative beneficiaries
Basic Requirements for the Self-Petitioning Spouse:
• Must be legally married to the US citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.
• Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
• Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was bat
