Immigration Law

The issue of immigration has been part of the political debate in our country almost since its founding, but perhaps never as much as in this most recent election cycle.  But to understand the debate, I think it’s helpful to have a basic understanding of immigration law.

Generally speaking there are two paths to entry into the United States for foreign citizens – by temporary visa or by permanent visa.  The distinction is critical as (with few exceptions) it drives the end result.

A temporary visa is known as a non-immigrant visa.  In other words, it’s issued to those who intend to return to their home country after a certain period of time.  There is no citizenship waiting at the end of the rainbow for this type of visa.  Once it’s expired, the person must return home.  Typical temporary visas would be issued for tourism, medical treatment, marriage, education, and certain temporary workers.

These visas are not really part of the immigration system in the strictest sense, as there is no intent to stay in the United States permanently.  Each particular visa has its own application and requirements.  For a student visa, for example, one must show that s/he is going to attend a recognized educational institution, and that s/he has sufficient funds to attend.

No matter the type of temporary visa, the government will require sufficient ties with the home country to demonstrate a true intent to return.  For those entering on a temporary visa, there can be consequences to thereafter applying for a green card – as the government will not be happy that you entered under false pretenses.  Nonetheless, in practice, many types of temporary, non-immigrant visas can be extended almost indefinitely.

The H-1B visa that is mentioned so often these days (for persons working in specialty occupations requiring at least a bachelor’s degree or equivalent on-the-job experience), although categorized as a temporary visa, is actually a “dual intent” visa.  That is, it is a type of visa that allows one to “change his mind” and apply for citizenship or permanent residence.

Permanent visas, also known as green cards, get one permanent residence and typically lead to citizenship.  As such, permanent visas are typically more difficult to obtain.  There are a number of different paths to a green card.

First, there’s the family path for those who have a relative who is a citizen or permanent resident of the United States.  This path is based on public policy that family unification is a good thing.  The closer the family relationship, the easier it is to obtain a family visa.  A spouse may be brought over in one year, while a sibling may have to wait over ten years. 

The second path is based on employment.  The employer must go through a certification process with the government to prove that it was not able to find a United States citizen for the position at issue.  In general, then, this path is designed for those with unique skill sets that are hard to come by.  There are five general categories within this path – with the waits growing longer for those with less rare skill sets and experience.  This path is part of the current political debate with reference to whether, in reality, it’s true that no jobs are being taken away from United States citizens.

One of the most commonly mentioned types of employment visa is the EB-5 – the so-called “million dollar visa.”  For those with the financial wherewithal, this may be one of the easiest options.  This visa requires the applicant to purchase or start a company with a minimum investment of $1,000,000.  And, that investment must create at least 10 jobs for United States citizens.

This third path, and one that is particularly controversial today, is the refugee visa.  To be eligible, the applicant must demonstrate that s/he has suffered past (or be in fear of future) persecution on the basis of race, religion, nationality, political view or membership in a certain group.  After clearing this initial hurdle, the applicant must then satisfy certain medical and security criteria to be eligible for entry.  The current controversy relates to differing viewpoints as to whether the government is thoroughly vetting the current crop of applicants and as to the number of these visas being issued.

The fourth path is via the “lottery.”  Every year the government makes a certain number of visas available to people whose home country has low immigration rates to the United States.  It is not available to residents of a country that sent more than 50,000 immigrants to the United States over the last five years. One hundred ten thousand applicants are selected at random to be eligible, but once 50,000 of these visas are actually issued the window is closed for the year.

No matter the path, and no matter whether one seeks a temporary or permanent visa, one must still be otherwise eligible for entry into the United States.  For example, someone who committed a serious crime or previously entered the United States without a visa would generally be ineligible for any visa.  However, as with virtually every aspect of the law, there are a multitude of exceptions – called “waivers.”

Those who receive a visa can subsequently have them revoked – what is commonly known as “deportation.”  For example, violating immigration or criminal laws may lead to a revocation.  Due to backlogs and appeal rights, it often takes quite some time for one to actually be deported.  Currently, controversies center on whether the government is enforcing the deportation laws.

Finally, for those who have permanent visas and have proven themselves to be model citizens, the end of the road can lead to actual citizenship.  Although the actual laws are quite complicated, in general, citizenship is available to those who (a) have held a green card as a resident of the United States for at least five years, (b) can read, write, and speak English, (c) have an understanding of U.S. History and civics, (d) are over the age of 18, (e) have been physically present at least 30 months out of the last five years, and (f) are “of good moral character, attached to the principles of the Constitution of the United States, and [are] well-disposed to the good order and happiness of the United States.”