An Overview of U.S. Immigration
by Terry T. Preshaw, Esq.
Nonimmigrants vs. Immigrants:
When determining your strategy to enter the U.S., you must decide whether you wish to enter as a nonimmigrant or as an immigrant.
What’s the difference? Individuals wishing to enter the United States for a temporary period of time and for a limited purpose are considered nonimmigrants under the law.
Those who wish to remain in the U.S. permanently and intend to make the U.S. as their primary physical domicile are considered immigrants.
Intending immigrants MUST have an immigrant visa to enter. Some nonimmigrant categories allow “dual intent” others only nonimmigrant intent – critical to know before you go!
1. Nonimmigrant Visas/Statuses
Visa categories vary in terms of availablity for non-immigrants. Each category has set of criteria that must be met at the Consular level and again when undergoing inspection for admission by U.S. Customs & Border Protection (U.S.C.B.P.). Being issued a visa does not guarantee admission into the U.S. – it is merely the ticket to get you to the door.
In general, nonimmigrants cannot have ‘immigrant intent’. They must intend to enter for a temporary period of time and must not have the intention of abandoning a foreign residence. They must have an ‘actual dwelling place in fact’ abroad. They must not have a preconceived intent to enter for a purpose different from that expressed at the time of obtaining the visa – this is known as “fraud upon entry“.
There are some exceptions, for example, L-1A Intracompany Transferees can file for an Immigrant Visa and Adjustment of Status if all the factual and legal conditions are met. In other cases, one can change from one non-immigrant category to another as long as category criteria are met.
• Certain Rules For Canadian Citizens and Temporary Entry:
For nonimmigrant categories, Canadian citizens are normally visa exempt (except for the E-1/E-2 (Treaty Trader/Treaty Investor) and K (Fiance) categories). Canadians can present their applications for nonimmigrant status at any Class A designated Port of Entry and if approved, will be allowed entry. Electronic I-94 documents demonstrating status are available at XXX. For TN (NAFTA Professionals) and L status, NAFTA has provided special rules regarding the application process.
2. Immigrants
Individuals applying for immigrant visas for Lawful Permanent Resident status (“LPR“) do so under the following categories: Family Immigration; Employment-Based Immigration, Asylum, Diversity Lottery and certain other special categories.
Family Immigration Is divided Into the Following Preferences:
Immediate Relatives of United States Citizens: This category, unlike other categories, have no annual limit and applies to spouses of U.S. citizens; unmarried children of U.S. citizens under 21 years old and parents of U.S. citizens provided that the citizen-child is at least 21 years old.
1st: Unmarried Sons and Daughters of United States citizens.
2A: Spouses and Children (under 21) of Permanent Residents.
2B: Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents.
3rd: Married Sons and Daughters of United States citizens.
4th: Brothers and Sisters of Adult (over age 18) United States citizens.
Employment Based Immigration Is Divided Into the Following Preferences:
1st Priority Workers: Outstanding Researchers and Intra-company transfers, and Extraordinary Ability.
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (jobs requiring at least two years of training or experience).
4th: Certain Special Immigrants including religious workers.
5th: Employment Creation.
All immigrant visas are subject to numerical limitation divided between Family Sponsored Immigration; Employment-Based Immigration and Diversity Immigration.
If your visa category is an immediate relative category (spouse, parent or child (under 21) of a U.S. citizen) then your case is automatically current. If your visa category is one of the family preference or employment categories, there are legal limits on the numbers of visas that can be issued in each category and in most categories, the demand is higher than those limits. In these categories, waiting lists have been established based on your priority date, which is the date your sponsor filed your petition with the USCIS. Cutoff dates established by the Visa Office determine when your petition will be reached for processing. Your petition can only become current and thus ready for further processing when the cutoff date in your visa category has advanced up to your priority date.