How Does a Person Immigrate to the United States?

Federal immigration law determines whether a person can come visit the United States and/or become a permanent resident or citizen.

To become a citizen (aka naturalized), it is a long arduous journey with the U.S. Citizenship and Immigration Services (USCIS). In fact, It is an understatement to simply call the immigration system “complicated.” The system is swamped with extraordinarily long backlogs and there are often unintended consequences due to the wild paper maze that is required for this multi-layered processes. Be prepared to wait. Every immigrant visa application has several stages, forms, medical examinations, fingerprinting, and many approvals are required.

Congress has complete authority over immigration and Presidential powers are limited to refugee policies. The role of the Justice System is mainly to simply protect foreigners’ constitutional rights. Immigration is mostly handled on a federal level, so states have limited legislative authority over the Visa, Green Card, and Citizenship processes.

Federal Immigration Entities

  • U.S. Customs and Border Enforcement (CBE)
    Primarily responsible for keeping terrorists and weapons out of the U.S. It also facilitates trade and travel, while enforcing other administrative regulations.
  • U.S. Citizenship and Immigration Services (USCIS)
    Responsible for enforcing immigration and customs laws.
  • U.S. Immigration and Customs Enforcement (ICE)
    Responsible for providing immigration-related services and benefits such as naturalization and work authorizations.

In this article we will cover:

  • The visa process (undocumented to documented)
  • The green card process (“resident alien”)
  • The path to citizenship
  • The path for an employer to sponsor an immigrant

How to
Legally Visit the United States
or
Begin the Immigration Process

1. First things first, you must get a visa.

( Form I-130 for family, I-140 for employers, I-129 for fiancé, I-360 for Others)

There are 185 different types of visas, and their prices range from around $350 to $700. Filing an attorney Certified I-140 through an immigration attorney can rush this process so that it takes only 2-3 months. If a person is applying for Alien Worker status via I-140, there is the option of “concurrent filing”, where a person can also file the I-485 for permanent resident status without having to wait for the I-140 to be approved first.

They all fall into one of two categories,
Nonimmigrant and Immigrant:

 

Nonimmigrant Visa

(For temporary visits only)

Common examples are:
Travel: B1(business), B2 (pleasure & visiting loved ones)
There is an exception made for short-term visitors from one of the visa waiver program countries. These visitors can stay in the United States for up to 90 days, and visa is not required.
Temporary worker visas: There are 4 categories
Education visas: F, J, M

Immigrant Visa

(For the path to Permanent Resident and citizenship)

There are many types of visas that fall under this category for those that are looking to become American citizens.

A petition to USCIS is required to be filed by:

Either,
the U.S. employer (work-based immigration), there are 4 categories for this,

Or,
a family member who is a citizen or permanent resident (family-based immigration).

-The K-1 fiancé visa is in this category
The petition for this must be made by a U.S. citizen only.

In order for a K-1 visa to be approved:

  • There must be intent to marry
  • The couple must have met within the last 2 years
  • The couple must be legally able to marry
  • The immigrant must not be already living in the United States

Once the initial petition has been approved, then the applicant must file for transfer to the National Visa Center (NVC). They will receive an invoice and may be required to submit an affidavit. Then, they will get a second invoice. Costs to file are tiered and based on the visa category that you apply for. There is also a fee to get the immigrant visa that goes to USCIS.

“Unlawful Presence”

This is a violation by a foreign person that came to the U.S. without permission or that has been in the US for 180 days or more. A waiver is possible, but only for extreme hardship for those that qualify.

Consequence:
If this person leaves the US,
the person may be barred from
returning for 3-10 years

The details surrounding this offense can be confusing if someone is waiting for USCIS to approve their application, if they violated a visa, and even if they have a student visa with unclear terms. In order to determine the best action to take, it is best to consult an immigration lawyer.


THE GENERAL PATH TO CITIZENSHIP

(Prior to this step, an immigrant visa is usually required.)

FIRST STEP: Become a Green Card Holder/ Permanent Resident

Green card holders can live and work in the United States and travel in and out, without encountering many restrictions. There are several paths towards becoming a permanent resident that work within two processes for how to go about this. The cost for a green card depends on the green card category and the coinciding applications that you will need to file.

These are the two processes. Their costs are different:

  1. “Adjustment of Status”
    (for those already present in the United States)
    A Form I-485 must be filed, and there are other forms that will make up this packet. The term “adjustment of statues” refers to the process for applying to be a permanent resident (aka Green Cardholder) that DOES NOT require the applicant to travel to a U.S. Department of State consulate abroad. Instead, the applicant will deal with the USCIS within the
    The United States. Watch the mail for a receipt from USCIS acknowledging your application, a Form I-797C Notice of Action (should take 2-3 weeks).*This process is preferred by many since a denied case can be challenged by the applicant through the administrative and/or appellate processes. The downside to this process is that Adjustment of Status takes significantly longer than consular processing; several years vs. 4-6 months.*Also, if the applicant changes their employer during this process, it is acceptable if it is after 180 days have passed, and if the new job is in a similar profession.
  2. “Consular Processing”
    (for those currently residing outside of the United States)This term refers to the process for applying to be a permanent resident (aka Green Card holder) that DOES require the applicant to travel to a U.S. Department of State consulate abroad that is in their home country.*If an immigrant is using this processing route, they will have to start the processing over completely if they are getting fired before the process is completed.

TIP: If the applicant cannot decide yet, immihelp.com suggests writing with a red pen at the bottom of the petition “Will not do adjustment of status, please send approved petition to NVC.”  Then, after the petition is approved, all that will be necessary, if one chooses the Adjustment of Status, is to simply file it with USCIS. This helps to avoid wasting time, because if one does decide on consular processing, then the NVC is already processing the application. The time it takes to transfer from one form of processing to another can take up to a year.

***

The following categories to achieve permanent resident status (aka: get your green card)
will determine the path an applicant will take regardless of whether they use the
“Adjustment of Status”
or
“Consular Processing”
procedural method.

Green Card through Family
(any of the following)

  • If you are married to a permanent resident or U.S. citizen
  • If you came to the U.S. as a fiancé of a U.S. citizen as a K-1 nonimmigrant (A Marriage-Based visa/ Immigrant visa is often used to refer to this type of Green Card.)
  • If you are the Immediate relative of a U.S. citizen
  • If you are an unmarried child under 21 of a permanent resident that is over 21
  • If you are a are a widow(er) of a U.S. citizen
  • If you are an abused spouse, child, or parent of a U.S. citizen or permanent resident

Green Card through Employment
(any of the following)

  • If you are an Immigrant worker of first, second, or third preference type
  • If you are a physician that agrees to work in a designated underserved area for a set
    period of time. (If eligibility is based on employment or family, then the applicant must have the approved visa petition on file with a current priority date, if there is one).
  • If you are an investor that has invested or are actively investing $1 million (or
    $500,000 in targeted areas) in a new U.S. commercial enterprise that will create at least 10 full-time job positions

Green Card as a Special Immigrant
(any of the following)

  • If you are a religious worker coming to the U.S. to work for a nonprofit religious
    organization
  • If you are a “Special Immigrant Juvenile”, meaning you have SIJ status and have been abused, abandoned, or neglected by your parent.
  • If you are an International Broadcaster coming to the U.S. as a media member
  • If you are an international organization or family member or NATO-6 employee or
    family member

Green Card through Refugee or Asylee Status
(any of the following)

  • If you were granted “asylum” at least 1 year ago due to endangerment and fear of
    persecution by your home country’s government or forces beyond their
    control.
  • If you were granted “refugee” status at least 1 year ago to request protection while
    still overseas and if you were given permission to enter the U.S.

Green Card for Human Trafficking and Crime Victims
(any of the following)

  • If you are a victim of human trafficking with a T nonimmigrant visa
  • If you are a crime victim with a T nonimmigrant visa

Green Card for Victims of Abuse
(any of the following)

  • If you are an abused spouse, child or parent of a U.S. citizen or permanent resident
    (child is under 21 years old)
  • If you are a “Special Immigrant Juvenile”, meaning you have SIJ status and have been abused, abandoned, or neglected by your parent
  • If you are an abused victim of battery or extreme cruelty by a spouse or child under
    the Cuban Adjustment Act
  • If you are an abused victim of battery or extreme cruelty by a spouse or child that is
    a permanent resident under the Haitian Refugee Immigrant Fairness Act
    (HRIFA)

Green Card through other various ways
(any of the following)

  • If you were selected for a Diversity Immigrant Visa P
  • If you are a Cuban native or citizen, or a spouse/child of a Cuban native or citizen
  • If you are an abused victim of battery or extreme cruelty by a spouse or child under
    the Cuban Adjustment Act
  • If you are an abused victim of battery or extreme cruelty by a spouse or child that
    received his or her Green Card under the Haitian Refugee Immigrant Fairness
    Act (HRIFA)
  • If you were paroled into the U.S. as a Lautenberg parolee
  • If you are a native citizen of Vietnam, Kampuchea (Cambodia), or Laos who was
    paroled into the U.S. from Vietnam on or before 10/1/97 under the Orderly
    Departure Program, a refugee camp in East Asia, or a UNHCR displaced person camp in Thailand
  • If you are at least 50% American Indian and were born in Canada
  • If you were born in the U.S. to a foreign diplomatic officer and were born while they
    were stationed in the U.S.
  • If you were stationed in the U.S. as a foreign diplomat or high ranking official, but
    are now unable to return home

Green Card through Registry
(any of the following)

This applies to those who have continuously lived in the U.S. since January 1972.

Conditional Permanent Residence may be awarded. It will last for 2 years, and a petition to remove the condition must be filed (Form I-751) during the 90 days before it expires. If the applicant is an entrepreneur, they must file Form I-829. Conditional Permanent Residence cannot be renewed, it must be removed.

Restrictions for all Permanent Residents:

  1. Green card holders cannot vote and can be deported if they “abuse their status” or break U.S. laws.
  2. It is valid for 10-years. It is recommended to start the renewal process (file online Form I-90) 6 months prior to expiration.
  3. Departing the US for 6 months or more could cause you to be unable to return after your trip
  4. Certain criminal offenses can place you in removal proceedings
  5. Overstaying your authorizes allotted amount of time can place you in removal proceedings

SECOND STEP: Become a U.S. Citizen!

If the applicant has been a green card holder for 5 years or more and has lived within the state where they intend to file for at least 3 months, then it is possible to begin the application for citizenship. If the immigrant stays married to their spouse that is a U.S. citizen, they are able to apply for citizenship just 3 years after receiving their green card. The best way to be certain about one’s eligibility is to seek help from an immigration attorney, but here is a list of the requirements.

  1. The applicant must be “admissible.” This means, that there is no long criminal record or communicable disease.
  2. The applicant must have physically been in the United States for at least 30 months out of the 5 years that immediately precede filing for citizenship.
  3. The applicant must be able to read, write, and speak English as well as know and understand U.S. history and government (civics).
  4. The applicant must be of a good moral character, honor the principles of the U.S. Constitution, and be in good standing with the law

Next steps, if initial requirements are met:

  1. File USCIS Form N-400 to the USCIS Service Center that has jurisdiction over your area.
    – 2 passport-style photos of the applicant are required
    – The application fee must be paid. That fluctuates, but it is $725 (as of 2017), and this includes the $640 citizenship application fees + the $85 background check cost (aka biometric fee)
    Then, the permanent resident will be mailed a date for biometrics and fingerprinting
  2. Get biometrics and fingerprinting
    Then, the permanent resident will receive an appointment and address for your interview with a USCIS officer. Prepare for the English and U.S. civics test.
  3. DO NOT MISS YOUR DESIGNATED INTERVIEW APPOINTMENT. Take the English Language and Civics exams.
    Then, the permanent resident will receive the results and decision via Form N-652.
  4. If you are approved, you must attend the Oath Ceremony to swear loyalty to the United States.
  5. Congratulations!
    You will be given a certificate of naturalization to show you are a U.S. citizen.

The Immigration Process for the Employer
Hiring an Immigrant

There will be fees to pay in addition to the I-140 form for a visa. The employer acts as the “sponsor/petitioner” and the immigrant is the “applicant/beneficiary.”

There are 4 categories for immigrants to obtain permanent resident status through employment.

  • EB-1 Priority Workers
  • EB-2 Professionals with advanced degrees or exceptional ability
  • EB-3 Skilled/Professional workers
  • EB-4 Special Immigrants

The employer will typically need to:

  1. Determine if the immigrant is eligible for permanent residency
  2. Complete and submit a request for labor certification (Form ETA 750) to the Department of Labor’s Employment and Training Administration.
    *It is illegal to have the future employee pay for this, including any attorney fees.
    *Alien physicians that will practice medicine in certified underserved areas in the U.S. do not require Labor Certification.
  3. Complete and file the I-140 Petition for the Alien Worker. This cannot be filed until after the labor certification is granted.
  4. Regardless of whether the immigrant is in the U.S. already or not, they must receive an immigrant visa number. The status for this can be checked on the Department of State’s  Visa Bulletin.
  5. If the foreign national is already in the United States, then they are to apply to adjust their status to permanent resident once they get their visa number. Otherwise, if they are not in the U.S., once they get their visa number they must complete the process at their local U.S. consulate office.

Hiring an Attorney

An attorney can help greatly with determining your eligibility, help complete paperwork, and may even join you for the interview at the U.S. consulate if need be. There is usually a flat fee based off of how many people are applying for citizenship, present complications, and whether a person needs to contest inadmissibility.

Payment arrangements can often be made to help the client to get the best guidance possible. It is important to keep in mind that there may be additional costs for flights, phone calls, photocopying, mailing, etc, but this is not unusual. Also, if the applicant is arrested before the case is done or if a divorce comes up that wasn’t originally considered in the original case, then this will require more work and costs will undoubtedly go up.

An attorney can make a huge difference in how a well the naturalization process goes for their client, but it is important to remember to budget for attorney fees as well as other necessary expenses for citizenship.

Some of these costs are:
– Costs to file
– Cost of mailing applications
– Photos
– Transportation and travel expenses
– Medical exam fees
– Police certificates to from countries you have lived in

Advice from a full-fledged immigration attorney is the only surefire way to be sure that you are well advised. Applying for something you aren’t eligible for can hurt your case. If you or someone you care about wants to acquire a visa, permanent residency status, or citizenship, it is wise to get professional guidance. Make sure that your or your loved ones journey through the naturalization process goes smoothly and ask the lawyers.  Go here to find a qualified lawyer to assist you.