Key Facts about Immigration Law in the U.S.

Immigration law is a body of law which includes the federal statutes, regulations, and legal precedents that govern immigration into and deportation from a country. Each country has their own set of immigration laws, which typically control the right to exit and enter a country as well as the rights an immigrant maintains while present in the country. This can include rights that govern the duration of an immigrant’s stay, their freedom of movement, and the right to actively participate in local government or commerce. The following is a discussion of key facts pertinent to immigration law in the United States and provides a basic overview of the immigration structure of America.

Immigration law within the United States is governed by a body of federal law called the Immigration and Nationality Act (“INA”). The INA provides the United States with the statutory basis to group immigrants into various visa categories so that they may be eligible for immigrant visas, nonimmigrant visas, lawful permanent residency, and other forms of immigration status. There are several categories within the United States’ immigration system which are set forth in the INA. These categories include, but are not limited to the following:

• Family-based immigration
• Employment-based immigration
• Refugees and asylees
• U.S. citizenship

Each of these categories has different qualifications immigrants must meet to be considered for a visa within that category and/or to apply for naturalization and obtain United States citizenship. If an immigrant’s petition for lawful status occurs within the United States, it will generally be processed by the United States Citizenship and Immigration Services (“USCIS”), and if the immigrant’s petition for lawful status occurs in their country of origin or outside the United States, it is typically processed by the United States Department of State through consular processing.

Family-based immigration focuses on the reunification of families by allowing current United States citizens or current lawful permanent residents to sponsor and bring specific members of their families to the United States. This can be done if the immigrants are considered immediate relatives of United States citizens or through other family preference categories.

Immediate relatives are defined as spouses of U.S. citizens, unmarried minor children of U.S. citizens that are under twenty-one (21) years old, and parents of U.S. citizens that are at least twenty-one (21) years old. The family preference categories include married and unmarried adult children and brothers and sisters of United States citizens. The family preference categories also include spouses and unmarried children of lawful permanent residents. Each family preference category does have a specific numerical limit. Immediate relatives, however, do not have a specific numerical limit.

Employment-based immigration in the United States can be classified and divided into two categories: temporary employment-based visas and permanent employment-based immigration.

Temporary employment-based visas allow employers across the United States to petition and employ foreign nationals for specific jobs for a limited period of time. There are over twenty (20) types of temporary employment-based visas, which all vary in regard to the necessary qualifications an immigrant must have, their duration, and whether or not the specific temporary employment-based visa allows an immigrant to obtain temporary immigrant visas for familiar dependents.

Permanent employment-based immigration is separated into five (5) preference categories. There are specific numerical limits for each category. Permanent employment-based immigration involves an employer sponsoring an employee that meets specific qualifications set out by USCIS. If granted, this sponsorship will result in the employee obtaining Lawful Permanent Residence status and a Green Card. In most categories of permanent employment-based immigration, the United States Department of Labor must first certify that the employer’s application meets certain requirements prior to filing the petition to sponsor the employee. This also typically involves testing the current conditions of the United States labor market and availability of United States citizen workers in the job and/or field.

It should be noted that in addition to the specific numerical limits placed on the previously discussed immigration preference categories, the INA also includes limitations on how many immigrants can come to the U.S. from any one country. The purpose of this additional limitation is to prevent any immigrant group from controlling immigration flow into the United States of America.

Refugees are able to seek admission in the United States based on a “well-founded fear of persecution” due to their religion, race, membership in a particular social group, or national origin, which presents an inability to return to their home country. Typically, a refugee will apply for admission in the United States from outside the United States. There are several factors that determine whether or not a refugee is able to seek admission in the United States, including but not limited to, the degree of risk a refugee may experience if they are not granted status and whether the particular social group is of concern in the United States. Each year a numerical limit is placed on refugee admissions into the United States.

Asylum is available to immigrants who are already present in the United States and who seek protection based on the same five (5) grounds upon which refugees are able to seek admission into the United States. An individual may apply for asylum at a lawful port of entry into the United States or within one year of arriving in the United States. There is no numerical limit placed on individuals seeking asylum protection.

Last, but certainly not least, the process to qualify and become a United States citizen is called naturalization. In order to qualify for naturalization, the individual must have had lawful status as a lawful permanent resident for at least five (5) years. If an individual obtained their lawful permanent resident status through a U.S. citizen spouse or through an assertion of the Violence Against Women Act (“VAWA”), then the individual must have been a lawful permanent resident for at least three (3) years in order to be eligible for naturalization.

In order to determine if an immigrant is eligible and qualifies for a specific immigration category available in the United States, one must analyze many facts to make a proper determination. If you, or any family members or friends, are looking for assistance with applying for immigration benefits, or other types of immigration cases, schedule a consultation with one of our Tennessee immigration law attorneys at Cole Law Group.