Immigration Law
The United States prides itself on being a nation built by expats who contribute to economic growth by paying taxes, working, and innovating to solve global challenges. It is immigration law that facilitates this importation of skills and knowledge.
An illustrative example can be found in a study by the National Bureau of Economic Research, which showed that noncitizens contributed 36% of the country's innovation output since 1990 despite making up only 16% of the inventor workforce. Other reports highlight that they paid $330 billion in federal income tax in 2019 alone. Robust and progressive immigration laws help countries harness their invaluable contributions while at the same time creating a safe and conducive environment for citizens, investors, and other residents.
What Is Immigration Law?
Immigration law defines pathways through which people can move to settle in the United States, their rights and responsibilities, or the circumstances that warrant deportation. The law outlines two categories of people in the U.S.: citizens/nationals and aliens. Aliens are further classified according to their status as follows —
- Lawful permanent residents (LPR) or green card holders;
- Non-immigrant visa holders;
- Foreign nationals with other types of legal status; or
- Undocumented individuals.
The Department of Homeland Security (DHS), established in 2003 in response to the September 11th terrorist attacks, is responsible for implementing federal immigration law. It achieves its mandate through the following sub-agencies —
U.S. Citizenship and Immigration Services (USCIS) — Reviews and processes applications for naturalization, green card, non-immigrant visas, political asylum and other immigration benefits.
Immigration and Customs Enforcement (ICE) – Enforces laws on border control, customs, trade, and immigration to uphold homeland security.
Customs and Border Protection (CBP) — Oversees inspection of cargo and people into the U.S.
Immigration law does not lend itself to dealing with people residing in the U.S. temporarily, such as tourists, students, professionals on exchange programs, or persons passing through the country on their way to another destination.
Key Terms in Immigration Law
To appreciate the scope of immigration law and the modalities with which it helps the U.S. harness the benefits of immigration while protecting its interests, take time to review the following key terms —
- Alien — A person within the borders of the United States but not a citizen or national of the country. The term is used synonymously with foreign nationals, immigrants, or noncitizens.
- Asylum seeker/Asylee — An individual who fled to the United States to seek protection and escape human rights persecution in their home country.
- Deportation or removal — The determination that a person cannot remain in the territory of the United States and, therefore, is ordered to depart.
- Diversity visa lottery — A program through which visas are annually issued to a limited number of people meeting specific criteria.
- Dual nationality — Being a citizen of two countries.
- Naturalization — The legal process of becoming a citizen or a national.
- Merit-based immigration — A proposed immigration pathway in the United States in which individuals would be required to reach a certain threshold (determined in points) to qualify for a visa.
- Overstay — A situation where an individual enters the country through a visa but stays past their departure date.
- Quota system — A policy that limits the number of legal immigrants entering the U.S. each year by nationality.
- T-Visa — Available to noncitizens victims of human trafficking who help detect, investigate, and prosecute people involved in the crime.
- Temporary Protected Status (TPS) — Like refugee status, TPS is a humanitarian permission given to individuals that allows them to live and work in the United States for a limited period.
- Termination of removal proceedings — A relief in an immigration court, in which a judge cancels the proceedings for deportation, and the individual becomes a legal permanent resident.
Various Aspects of Immigration
U.S. immigration law is built on four goals that provide a pathway for those seeking entry into the country. The objectives are to reunify families, admit immigrants with valuable skills, protect refugees, and promote diversity. Each of these ideals blends the nation’s needs with the aspirations of those seeking entry.
Naturalization
In U.S. immigration law, naturalization stands as one of the routes to citizenship. To qualify for naturalization, an individual must meet the following requirements —
- Must have attained 18 years.
- Be a permanent resident of the United States for a duration ranging from three to five years, holding a valid Permanent Resident Card (formerly known as the Alien Registration Card). During this time, the individual must be married to a US citizen and not have lived outside the country for more than 18 months.
- If they’ve been in the US for five years, they must not have left the country for over 30 months. If they have, they must show that they were serving on a vessel operated by a US-registered business, working with a contract from the government, or serving under a ministry or religious entity registered in the US.
- During the last three or five years, the applicant should not have taken a trip outside the United States lasting one year or more. However, if such a trip was necessary, immigration law requires that they have previously filed an Application to Preserve Residence for Naturalization Purposes (Form N-470) and obtained approval.
- For the last three months, be a resident of the district or state where they apply for citizenship.
Capable of reading, writing, and speaking basic English. If not, they can meet alternative criteria by being over 50 years old and having lived in the United States for at least 20 years since becoming a permanent resident or over 55 years old with at least 15 years of U.S. residence since obtaining a permanent residency.
Or, if they have a disability preventing them from meeting this requirement, they can provide a Medical Certification for Disability Exceptions (Form N-648) completed and signed by a doctor. - Have a sound knowledge of U.S. history, government structure, and principles unless they have a disability exempting them from the civics requirement. In such cases, they must present a Medical Certification for Disability Exceptions (Form N-648) as evidence, completed and signed by a doctor.
International Students
Immigration law allows international students to enter the U.S. with a non-immigrant visa category of F-1 and M-1. F-1, or the Academic Student visa, suits full-time academic students. The M-1, also called the Vocational Student visa, is appropriate for students pursuing vocational or nonacademic programs except for language training. To qualify for either visa, individuals must fulfill the following requirements —
Must be enrolled in an academic educational program, a language training program (under F-1), or a vocational program (M-1).
The accredited learning institution of choice must be approved by the Student and Exchange Visitors Program under U.S. Immigration and Customs Enforcement to admit international students.
Under F-1, the person must be enrolled as a full-time student in the institution of choice in a program leading to a degree, diploma, or certificate.
Be English proficient or enrolled in a course that will lead to proficiency.
For both visas, immigration law requires that applicants prove they have adequate funds to support themselves throughout the planned course of study.
Maintain a residence in their home country with no intention of abandoning it.
Temporary Workers
Also known as non-immigrant workers, these visas, as the name suggests, are given to individuals who seek to work for a defined time in the United States. To start the visa process, prospective employers must secure the approval of USCIS so that the worker can apply for a visa.
H-1B — For those seeking employment in specialized fields that necessitate a higher education degree or its equivalent or projects that involve one government or the cooperation of two.
H-1B1 — A non-petition-based visa for specialties that require a post-secondary degree that takes at least four years of study, open to citizens of Chile and Singapore.
H-2A — Temporary agricultural worker and H-2B temporary non-agricultural worker visas are limited to select countries for individuals interested in seasonal and non-agricultural work, respectively.
H-3 — Allows the applicant to enter the country for special needs training opportunities not available in their nation of origin.
L — Allows companies to send employees who’ve worked with them for over one year in the past three years to work in a subsidiary, brand, or affiliate company.
O — For individuals with extraordinary ability or achievement and international acclaim in arts, science, athletics, business, or education.
P-1 — Open to individuals, team athletes, or members of an entertainment group with an international audience to perform in a recognized competition.
P-2 & P-3 — For artists or entertainers (individual or group) to perform or teach in the U.S.
Q-1 — Available to participants in an international cultural exchange program to enter the country for practical training and employment related to history, culture, or traditions associated with the country of origin.
Humanitarian Protections
Within the context of immigration law, humanitarian protections are mechanisms and policies designed to defend individuals in danger of experiencing basic human rights violations in their home countries. The groups of people who qualify for such considerations include —
- Refugees;
- Asylum seekers;
- Political dissidents;
- Religious minorities;
- LGBTQ+ individuals;
- Survivors of domestic violence;
- People in need of medical assistance and care;
- Families affected by environmental disasters; or
- Victims of armed conflict and human trafficking.
In response to the threats in an individual’s country of origin, USCIS may issue benefits such as Temporary Protected Status (TPS) open to eligible applicants already in the U.S. from designated countries. The agency may also allow victims of human trafficking to apply for T-Visas and individuals who have worked for the government in Iraq or Afghanistan to pursue Special Immigrant Visas (SIVs) for lawful permanent residency.
Rights & Obligations in Immigration Law
Immigration laws regulate the movement of people across borders to protect host countries, boost the economy by facilitating the import of talent, add to the pool of taxpayers, and safeguard the rights of those at risk of human rights violations. To achieve these objectives, these laws articulate the rights and responsibilities of noncitizens seeking entry, residence, or citizenship in the U.S.
Immigration laws offer protections for freedoms such as the right to —
- Apply for visas, asylum, or other forms of legal immigration status.
- Legal representation during deportation hearings or any other legal proceedings to ensure a fair process.
- Due process of the law regardless of status, including a fair hearing before a judge.
- Protection from discrimination based on race, religion, nationality, or other factors.
Obligations include the requirement to comply with the relevant rules and respect local customs or culture. The DHS agencies balance facilitating legal immigration and enforcing immigration laws to ensure national security and socio-economic stability while respecting human rights. Immigration policymakers and advocates worldwide face an ongoing challenge in balancing these interests.
Rules & Regulations for Immigration Law
The Immigration and Nationality Act (INA) oversees immigration policy in the U.S. The legislation allows a maximum of 675,000 permanent immigrant visas to be distributed across various visa categories annually. However, there is no numerical limit on the annual admission of spouses, parents, and children under 21 of U.S. citizens.
INA further allocates five broad classes for the admission of foreigners under the LPR. These are —
Family-sponsored preferences for immediate relatives of citizens or permanent residents
Diversity Visa (DV)/Green Card Lottery available in annual quotas to individuals from countries with low rates of immigration to the U.S.
Under immigration law, humanitarian visas for refugees seeking protection due to persecution in their home countries
Other special programs for certain international broadcasters, religious workers, and eligible Iraqi and Afghan translators
Employment-based immigration for individuals with specific skills and qualifications, including priority workers, professionals, and special immigrants.
Federal Immigration Law
Federal immigration law in the United States regulates noncitizen matters at the national level, providing the framework for entry, stay, and rights of noncitizens in the U.S. Specifically, the framework governs —
- Visa categories — Articulates the five main immigrant visa options used to determine the criteria for allowing entry into the US.
- Asylum processes — The federal immigration law governs seeking asylum for individuals who fear oppression and persecution in their home country.
- Naturalization — The means through which an individual may become legal with full citizenship rights.
- Deportation procedures — Outlines the process and the circumstances that necessitate an individual's removal from the U.S. territory.
- Annual limits — Immigration law provides a yearly limit on the number of permanent immigrant visas that DHS can issue and the family members below 21 that can be admitted into the United States.
State Immigration Law
Individual U.S. states establish state immigration laws to address alien-related matters within their jurisdictions. They encompass —
Employment issues, such as mandating that employers verify the immigration status of their workforce.
In-state tuition rates for undocumented students who meet specific criteria.
For professions like lawyers and doctors, state immigration law may require practitioners to be U.S. citizens or legal permanent residents.
The eligibility of undocumented immigrants to benefits, including healthcare and public assistance.
State immigration laws can vary to reflect unique state-specific priorities and needs. However, discrepancies with federal regulations often generate controversies, leading to legal challenges and debates surrounding immigration enforcement and federal-state cooperation.
When You Need an Immigration Law Lawyer
Navigating immigration law is difficult, especially for those unfamiliar with its intricacies, but a specialized attorney can —
- Help you meet all the conditions to apply for a visa successfully;
- Offer effective representation in deportation proceedings;
- Assist in assessing your eligibility and preparing your application for asylum;
- Oversee the complex process of securing work visas and green cards for your employees;
- Expertly steer you through bringing a family member into the United States.
- Clarify suitability and offer support throughout the naturalization process.
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Frequently Asked Questions
Under immigration law, noncitizens with permanent residency and refugees with asylum who engage in a deportable criminal act can be removed. INA specifies such crimes to include those that —
- Involve dishonesty, fraud, or intent to harm others, such as theft, fraud, or assault;
- Serious crimes, including murder, rape, drug trafficking, and or any other violent crimes;
- Domestic violence crimes are also deportable under immigration law. They include child neglect, abandonment, child abuse, stalking, as well as any violent crime committed against a current or former spouse, cohabitant, or intimate partner.
- Firearms offenses can include carrying, trafficking, selling, or purchasing firearms illegally.
- Drug offenses can include possession, distribution, or trafficking of controlled substances.
After a trigger event, such as a criminal conviction of a deportable offense or visa overstay, among others, the U.S. government may initiate a process for an order of deportation according to immigration law as follows —
- Commencement of Removal Proceedings
These proceedings start when the Department of Homeland Security serves a noncitizen with a Notice to Appear, which provides the necessary information, such as the grounds for removal and the right to an attorney.
- Master Calendar Hearing
The first hearing is known as a master calendar hearing. During this session, the respondent admits or denies the charges and provides a list of witnesses and evidence they intend to present. If the respondent fails to appear, an automatic removal will be issued.
- Merit Hearing
If the respondent contests the charges, the case advances to a formal hearing. The attorney presents the respondent’s case or may offer immigration law alternatives to deportation, such as an adjustment of status. The respondent may also request a voluntary departure, which allows them to exist without a removal order.
To access your immigration court records and verify scheduled hearings, visit the Executive Office for Immigration Review (EOIR) website. You’ll need your Alien Registration Number (A-number).
The short answer is yes. An individual may become undocumented as a result of entering without inspection (EWI), i.e., without interacting with a border agent or by overstaying a student or tourist visa. For those who become undocumented by overstaying their visa or by any other means after lawful entry into the U.S., they can become legal by marrying a citizen or an individual with a permanent resident status. Alternatively, if the noncitizen is a spouse, parent, or an unmarried child under 21, they may seek adjustment of status through the immediate relative visa options. However, immigration law makes adjustment of status for EWI individuals very complicated.