A visa grants a foreign national permission to enter the United States. There are two types of visas: immigrant and nonimmigrant. A “nonimmigrant visa” permits a foreign national to remain in the United States temporarily, usually to work, to visit relatives or to attend school. Most nonimmigrant visas are not subject to numerical caps.

An “immigrant visa” (also known as a “green card”) permits a foreign national to remain in the U.S. permanently. A permanent resident has the right to become a naturalized U.S. citizen after three to five years. Immigrant visas are numerically limited by country and by class (e.g. family relationship or job skills).

To enter or to stay in the U.S. as a nonimmigrant or immigrant usually requires several steps. First, a foreign national or his or her employer or relative often files an application with U.S. Citizenship and Immigration Services (USCIS) to be classified in one of the nonimmigrant or immigrant visa categories. If the USCIS approves the application, the foreign national may need to go to a U.S. embassy or consulate overseas to have a visa stamped in his or her passport. This stamp indicates the visa class and the date of issuance and expiration. At the border, an immigration inspector will review the visa stamp and issue an admission card (Form I-94 for nonimmigrants). The inspector can authorize admission for any length of time, up to the expiration date on the visa stamp. The USCIS also issues permanent resident alien cards to immigrants in the US.

Example: Meredith is a citizen of the Czech Republic and is visiting her cousin in Rhode Island. Her visa (and Form I-94) allows her to stay for six months. A week after arriving in the U. S., Meredith discovers she is three months pregnant. Her estimated due date is November 28; her Form I-94 has an expiration date of December 1 st. Meredith does not want to return home earlier than planned. She would prefer to have the baby in the U.S. and then return to her country. In early November she goes to her lawyer’s office and explains her situation. Her lawyer files for an extension of stay on Form I-539, along with a letter from her obstetrician that explains her situation.

Nonimmigrant (Temporary) Visa Categories

There are approximately 24 types of nonimmigrant visas, each authorizing a temporary stay in the United States. It is often possible to extend your stay and/or change from one nonimmigrant visa category to another.

The following is a list of common nonimmigrant visa categories:

A: Government Officials: includes ambassadors, public ministers, diplomats, consular officers and other officials assigned to represent their country to the United States. Spouses, children, servants, attendants and their families are also included in this class. See INA § 101(a)(15)(A)(i).

B-1: Visitors for Business: includes foreign nationals who intend to conduct business for a foreign employer. A B-1 visitor may not displace an American worker, or receive compensation from an American source. See INA § 101(a)(15)(B).

B-2: Visitors for Pleasure: includes tourists and relatives visiting family members in the United States. B-2 nonimmigrants are not permitted to work in the United States. See INA § 101(a)(15)(B).

C-1: Transit Aliens: applies to someone passing through the U.S. on the way to a third country. A maximum stay of 29 days is permitted. See INA § 101(a)(15)(C).

D: Crewmen: includes vessel or aircraft workers required for normal operation of the ship or plane. Crewmen are admitted to the United States for up to 29 days. See INA § 101(a)(15)(D).

E-1: Treaty Traders: applies to someone who enters the U.S. primarily to carry on trade between the U.S. and a foreign country that has signed a treaty of commerce and navigation (or its equivalent) with the U.S. The treaty trader must carry a passport from the country he or she is representing. The initial period of admission is one year, with extensions available. See INA § 101(a)(15)(E)(i).

E-2: Treaty Investors: applies to a national of a foreign country with which the U.S. has signed a treaty of commerce and navigation, or its equivalent. Unlike a treaty trader, a treaty investor is someone directing and developing a business in which he or she has invested a substantial amount of capital. Top managers and executives of firms that have made substantial investments in qualifying enterprises may also qualify, as may "essential" employees. The initial period of admission is also one year, with extensions available in appropriate circumstances. See INA § 101(a)(15)(E)(ii).

F: Academic Students: an F-1 student is admitted to pursue full-time study at a school or institution approved by the USCIS. An F-1 student must maintain a home in a foreign country to which he or she will return upon completion of studies. This category also includes the student's spouse and unmarried children under 21 years old (known as “F-2’s”). With permission, these students may work on- or off-campus after the first academic year; part-time during the semester and full-time during vacations. After graduation, they may participate in a one-year “practical training” period. See INA § 101(a)(15)(F)(i) and (ii).

G: Representatives to International Organizations: includes persons accredited by their governments to represent it to an international organization such as the United Nations, World Bank, or Red Cross. See INA § 101(a)(15)(G)(i).

H-1B: Temporary Professional Workers: H-1B's are persons coming to the U.S. to engage in “specialty occupations,” such as all professionals holding bachelor's degrees and some persons who can show professionalism based on a combination of schooling and appropriate work experience. This class requires a prearranged job, which may be temporary or permanent in nature, in a professional field. The initial period of admission is three years, with a second three-year period available. After remaining in the U.S. for six years on an H-1B visa, a foreign national is required to live abroad for one year before re-entering the U.S. in H or L visa status. The H-1B class is currently subject to an annual cap of 65,000. See INA § 101(a)(15)(H)(i)(b).

Example: Manuel owns an architectural firm in Texas. Since he has a hard time finding qualified architectural graduates who want to relocate to his area, he sponsors foreign-trained students to fill the openings. Over the past three years he has hired three such graduates under the H-1B program. Since business is booming, he would like to hire two additional students this year. When he put in the application, he was told that the H-1B quota (65,000) for the current fiscal year was reached on February 17, 2004. The next fiscal year will begin on October 1, 2004, at which time a new allocation of H-1B visa numbers will become available. Petitions can only be filed six months ahead of time, indicating a start date after October 1, 2004. Aside from lobbying Congress to increase the quota, he has to wait before he can bring in the workers he needs.

H-1C: Registered Nurses: given the shortage of nurses in the U.S., there are special rules governing institutions petitioning for the admission of temporary foreign nurses. See INA § 101(a)(15)(H)(i)(c).

H-2A: Temporary Agricultural Workers

H-2B: Temporary Non-Professional Workers: includes skilled and unskilled workers who lack bachelor's degrees who are coming to the U.S. temporarily to perform jobs that are temporary or seasonal in nature. This class requires prearranged employment and a certification from the U.S. Department of Labor (“DOL”) that U.S. workers are unavailable for the job. The initial period of admission is authorized by the DOL and USCIS, and is not to exceed one year. Extensions are available in limited circumstances for a maximum period of three years. The H-2B process involves 120 days lead time. See INA § 101(a)(15)(H)(ii)(a) and (b).

Example: Arthur and his family own a ski resort in Vail, Colorado. Due to the shortage of U.S. ski instructors available during the ski season, Arthur was forced to look outside the U.S. for foreign instructors. When he finally found two instructors he wanted to hire from Switzerland, the visa quota (66,000 currently; Congress is contemplating a 40,000 increase to 106,000) was already reached. As such, he was not able to bring in the two instructors.

H-3: Trainees: applies to a foreign national coming temporarily to the U.S. to engage in training not available in his or her home country, who intends to use this training outside of the U.S. A trainee may not engage in productive employment if a U.S. resident would be displaced. See INA § 101(a)(15)(H)(iii).

H-4: Spouses and Children: Spouses and children of H-1, H-2 or H-3 nonimmigrants are generally admitted for the duration of the status of the primary visa holder. H-4's are not permitted to work in the U.S. See INA § 101(a)(15)(H)(iv).

I: Journalists: allows foreign nationals to be admitted to the U.S., upon a basis of reciprocity, as a bona fide representative of a foreign press, radio, film or other foreign information media, for a period of one year. Spouses and unmarried children under 21 are included in this class. See INA § 101(a)(15)(I).

J: Exchange Aliens: includes foreign nationals who will participate in a program approved by the U.S. Information Agency. Participants include students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in a field of specialized knowledge. Spouses of J-1 nonimmigrants are issued J-2 visas and are sometimes permitted to work in the United States. See INA § 101(a)(15)(J)(i) and (ii).

K: Fiancés or Fiancées of U.S. Citizens: covers those engaged to be married to U.S. citizens who are coming to the U.S. solely to conclude a valid marriage with the petitioner within 90 days after entry, and the minor children of such persons. No extension is available. See INA § 101(a)(15)(K). This category was expanded in late 2000 by the Legal Immigration Family Equity Act (LIFE Act) to include the spouse of a U.S. citizen, who is waiting abroad for an immigrant visa, and the spouse’s children. See INA § 101(a)(15)(K)(ii).

Example: Melody is a citizen of Belize. She met her fiancé while he was interviewing for a position as an executive for a big hotel chain that has a location in her country. Since she has never been to the U.S. before, they decided to get married in Hawaii. Belize does not participate in the VWP. As such, Melody will have to apply for a K visa to gain entry to the U.S. for enough time to get married.

L: Intra-company Transferees: includes persons coming to the U.S. to work temporarily for the U.S. branch, subsidiary or affiliate of their foreign employer. To qualify for this category, a person must have worked for the foreign affiliate for at least one year immediately prior to transfer to the U.S. This class includes only executives, managers and employers with “specialized knowledge” who will fill a position in one of these categories in the U.S. The initial period of admission is three years. Extensions are possible up to a total of five years for specialized knowledge personnel and seven years for managers or executives. The spouse and children of L-1's may obtain derivative status as L-2's for the duration of the principal L-1 alien's status. See INA § 101(a)(15)(L).

M: Vocational Students: includes persons coming to the U.S. to study at a vocational or other non-academic school, other than a language training program, that has been authorized by USCIS to allow foreign students to attend. M-1 students are generally not permitted to work, but may obtain a limited period of “practical training.” Spouses and minor children are classified in the M-2 category. See INA § 101(a)(15)(M)(i) and (ii).

N: Relatives of United Nations Employees: includes certain parents and children of foreign nationals who have worked for international organizations in the U.S. See INA § 101(a)(15)(N)(i) – (iv).

O: Aliens of Extraordinary Ability: the O-1 category is reserved for foreign nationals of “extraordinary ability” in the sciences, arts, education, business and athletics, as demonstrated by “sustained national or international acclaim.” See INA § 101(a)(15)(O)(i). This class requires prior consultation with unions, management groups and other outside sources. Assistants to the principal nonimmigrant are admissible as O-2's. See INA § 101(a)(15)(O)(ii). Spouses and minor children of O-1 and O-2 nonimmigrants are admissible in the O-3 class. See INA § 101(a)(15)(O)(iii).

P: Performing Athletes and Entertainers: includes three subcategories of persons coming to perform in athletic or entertainment events. The P-1 class includes athletes performing as individuals, or groups and entertainers performing as a group recognized at an international level. See INA § 101(a)(15)(P)(i). The P-2 class includes athletes and entertainers entering to perform under reciprocal exchange programs. See INA § 101(a)(15)(P)(ii). The P-3 class includes those entering to perform in a culturally unique program. See INA § 101(a)(15)(P)(iii). The P-1 and P-3 classes require consultation with U.S. unions to determine eligibility. Spouses and minor children of P-1, P-2 and P-3's are admissible as P-4's. See INA § 101(a)(15)(P)(iv).

Q: Cultural Exchange Visitors: includes persons participating in designated international cultural exchange programs. Sponsors of such programs must employ at least five persons, including the foreign national. The maximum admission period permitted is 15 months. See INA § 101(a)(15)(Q)(i).

R: Religious Workers: includes ministers, professional religious workers and other religious workers entering the U.S. to work at an affiliated U.S. entity, and who have worked for the religious organization abroad for at least two years before application. The initial period of admission is three years. See INA § 101(a)(15)(R).

S: Aliens who assist with Law-Enforcement and Anti-Terrorism Efforts: allows certain aliens to be admitted to the U.S. to testify in criminal cases. This category also authorizes the admission of a limited number of alien informants. The period of admission is limited to three years. See INA § 101(a)(15)(S)(ii).

TN: Professionals Under NAFTA: allows citizens of Mexico and Canada to work in the U.S. provided that: the prospective position is on the list of NAFTA professions; the foreign national possesses the specific criteria for that profession; the prospective position requires someone in that professional capacity; and the foreign national is going to work for a U.S. employer. The spouse and children of TN nonimmigrants are entitled to derivative status, but they are unable to accept work in the U.S. See INA § 214(e)(2).

V: Spouses and Children of Permanent Residents: allows certain spouses and children of Lawful Permanent Residents (LPRs) to travel to and reside in the U.S. while they await the completion of their immigration process. To be eligible for a V visa, applicants must: meet the eligibility requirements for immigrants; have had an I-130 petition filed on or before December 21, 2000; and have waited three years since the filing of the petition without having been scheduled for a visa interview. Applicants may be waiting either for USCIS approval of their petition or, if the petition has been approved by USCIS, for availability of a visa number in order to complete immigrant visa processing. See INA § 101(a)(15)(V).

Immigrant (Permanent) Visa Categories

An immigrant or lawful permanent resident ("LPR") is someone admitted to the United States permanently. To obtain immigrant status, an applicant must meet both the substantive and numerical requirements of the law. Substantively, one must qualify as

• a specified close relative of a U.S. citizen or another LPR,
• an employee of a sponsoring employer or prospective employer, or
• part of the diversity lottery program.

Further, the potential immigrant must not fall within any of the general categories of inadmissible aliens specified in the law, such as criminality, mental defect, Communist party affiliation, drug trafficking, or terrorism. These are discussed in more detail later in this chapter.

In addition to substantive requirements, there are also country-specific and world-wide statutory quota limits imposed on most categories of family and employment-based immigrant visas. These quota limitations often can result in extended waiting periods before immigrant status may be obtained.

Employment-based Immigrants

There are five employment-based immigrant visa categories. Three of these categories have additional sub-categories. The employment-based immigrant visa categories are as follows:

• Employment-Based Category 1 (EB-1) : The first employment-based category covers “priority workers.” See INA § 203(b)(1)(A). No labor certification is required in this category. This category has three subcategories.
  
• Sub-category A :Aliens with “extraordinary ability” in arts, sciences, education, business or athletics—To qualify in this sub-category, the applicant must show sustained national or international acclaim and achievements recognized through extensive public documentation, and must be able to demonstrate that his or her contribution would “substantially benefit” the U.S. prospectively.
• Sub-category B :Outstanding professors and researchers—To qualify in this sub-category, the applicant must establish international recognition or acclaim, must have at least three years' experience in teaching and research in the field, and must have an offer of employment for a tenured or tenured-track teaching position at a U.S. university or college, or a comparable research position in private industry.
• Sub-category C :Certain multinational executives and managers—This sub-category provides an immigrant visa for individuals who were employed as executives or managers overseas during at least one year within the three-year period immediately prior to transfer into the United States, and who are transferred to the U.S. to perform executive or managerial duties. The overseas and U.S. employers must be the same or affiliated entities. The definitions of executive capacity and managerial capacity are fairly broad, and include managing a function, not just employees.
  
• Employment-Based Category 2 (EB-2) : The second employment-based category covers professionals and aliens of exceptional ability. See INA § 203(b)(1)(B). Labor certification is required unless the applicant can demonstrate that an exemption from this requirement would be in the national interest. This category has two sub-categories.
• The first is open to members of the professions holding advanced degrees (e.g., above that of baccalaureate) or their equivalent.
• The second sub-category is available to those who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests, or welfare of the U.S. This exceptional ability must be demonstrated by more than just a degree or license, and must be substantially above that normally encountered in the sciences, arts or business.
  
• Employment-Based Category 3 (EB-3) : The third employment-based category covers skilled workers, professionals and other workers. See INA § 203(b)(1)(C). Labor certification is required. This category has three subcategories.
• Sub-category A :Skilled workers—An alien qualifies as a skilled worker if, at the time of petitioning for classification, he or she is capable of performing skilled labor requiring at least two years training or experience, and is being sponsored for a permanent position for which qualified workers are not available in the U.S.
• Sub-category B :Professionals—This sub-category encompasses aliens holding baccalaureate degrees or their equivalent who are members of the professions.
• Sub-category C :Other workers—This sub-category is reserved for aliens capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S.
  
• Employment-Based Category 4 (EB-4) : This “special immigrants” category encompasses religious workers, certain former U.S. government employees and certain foreign nationals working for international organizations. See INA § 203(b)(1)(D).
  
• Employment-Based Category 5 (EB-5) : This “immigrant investor” category is for applicants who invest a minimum of $1 million in a new enterprise in the U.S. that will create jobs for at least 10 U.S. citizens or permanent residents, other than immediate family members of the investor. In certain targeted employment areas, the investment may be reduced to $500,000. See INA § 203(b)(1)(E).

Family-based Immigrants

There are two basic types of familial relationships that serve as a basis to apply for permanent resident status: (1) immediate relatives and (2) family-sponsored preference immigrants. This category has a worldwide cap.

• Immediate Relatives :Spouses and minors (i.e., under 21) unmarried children of U.S. citizens, parents of U.S. citizens (provided the citizen is over 21 years old), and certain spouses of deceased U.S. citizens can qualify for an immigrant visa as immediate relatives. There are no numerical limitations on this category of immigrant visas. These individuals do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by the USCIS. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens. See INA § 201.

(2) Family-sponsored Preference: Each family preference category has its own allocation of visas under the worldwide limit on family-based visas. These individuals must wait for an immigrant visa number to become available according to the following preferences:

• First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older. (Quota: 23,400 visas). See INA §§ 201 and 204.
• Second Preference: Spouses of lawful permanent residents, their unmarried children (under 21), and the unmarried sons and daughters of lawful permanent residents. (Quota: 114,000 visas). See INA §§ 202, 203(a)(2)(A) and (B) and 204.
• Third Preference: Married sons and daughters of U.S. citizens. (Quota: 23,400 visas). See INA §§ 202, 203(a)(2)(B) and 204.
• Fourth Preference: Brothers and sisters of adult U.S. citizens. (Quota: 65,000 visas). See INA §§ 202, 203(a)(4) and 204.

Example: Stavros is a citizen of Greece. He has a brother who became a naturalized U.S. citizen 15 years ago. Stavros, who is single, wants to move to Arizona to be closer to his brother. Their mother (who also lived in Greece) recently died; their father died when they were both still boys. Since his brother is a U.S. citizen now, Stavros can apply to come to the U.S. under the fourth family preference.

Diversity Immigrants (“DV immigrants”)

Each year, 50,000 immigrant visas are made available through a lottery to people who come from countries with low rates of immigration to the U.S. None of these visas are available for people who come from countries that have sent more than 50,000 immigrants to the U.S. in the past five years. To qualify for this program, applicants must have at least a high school education or its equivalent, or have worked for two years in an occupation that requires two years of training or experience.

The State Department's National Visa Center holds the lottery every year (computer-only), and chooses winners randomly from all qualified entries (actually 110,000 invitations are extended; however, half are found ineligible and fail to complete the process). Anyone who is selected under this lottery will be given the opportunity to apply for permanent residence. If permanent residence is granted, then the individual will be authorized to live and work permanently in the U.S. In addition, the lottery winner will be allowed to bring a spouse and any unmarried children under the age of 21 to the U.S. See INA § 203.

For DV-2005 (ended December 31, 2003), natives of the following countries were not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:

• Canada
• China (mainland-born)
• Columbia
• Dominican Republic
• El Salvador
• Haiti
• India
• Jamaica
• Mexico
• Pakistan
• Philippines
• Russia
• South Korea
• United Kingdom (except Northern Ireland)
• Vietnam

Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

For DV-2005, the government received about 5 million applications, down from the 13 million that were received in years before the government switched to a computer-only policy.

Example: Amber is a citizen of Ireland. She has no relatives in the U.S. who can qualify her for any family sponsored immigration. In addition, she has no potential U.S. employer who would be willing to sponsor her application for permanent residence in the U.S. As an alternative, she can apply for the diversity and hope she is selected.

Persons selected in the DV-2005 lottery are entitled to apply for visa issuance only during fiscal year 2005 (i.e., from October 2004 through September 2005). Applicants must obtain the DV visa or adjust status by the end of the Fiscal Year ( September 30, 2005). There is no carry-over of DV benefits into the next year for persons who are selected but who do not obtain visas during fiscal year 2005. Also, spouses and children who derive status from a DV-2005 registration can only obtain visas in the DV category between October 2004 and September 2005.

Refugees/Asylum

Every year, thousands of people come to the U.S. in need of protection because they have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Those found eligible for asylum are permitted to remain in the U.S.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the U.S. for resettlement, the U.S. Asylum Program provides protection to qualified refugees who are already in the U.S. or are seeking entry into the U.S. at a port of entry. Asylum-seekers may apply for asylum in the U.S. regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).

The two main ways of obtaining asylum in the U.S. are through the “ affirmative” process and through the “ defensive” process.

U.S. “Affirmative” Asylum Processing with USCIS

In the affirmative asylum process, individuals who are physically present in the U.S., regardless of how they got here and regardless of their current immigration status, may apply for asylum. They do so “affirmatively” by submitting an application to USCIS. In keeping with the idea that a genuine asylum-seeker should present himself to authorities “without delay,” asylum-seekers must apply for asylum within one year from the date of last arrival in the U.S., unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances.

Example: Jose has tried on several occasion to get to the U.S. from Peru. He and his father were members of a political party that is no longer in favor in Peru. In fact, both his parents and several siblings were killed because of his father’s political activities. On his sixth attempt to gain entry into the U.S., Jose makes it to U.S. soil. He asserts his desire to seek asylum and will enter the affirmative asylum processing with USCIS.

U.S. “Defensive” Asylum Processing with EOIR

Immigration Judges (“IJs”) with the Executive Office for Immigration Review (EOIR) hear asylum applications only in the context of “defensive” asylum proceedings. That is, applicants request asylum as a defense against removal from the United States. IJs hear such cases in adversarial (i.e., court-room-like) proceedings: the IJ is the judge that hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney. The IJ then makes a determination of eligibility. If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the U.S.

Aliens generally are placed into defensive asylum processing in one of two ways:

• they are referred to an IJ by Asylum Officers who did not grant asylum to them, or
• they are placed in removal proceedings because they:
• are undocumented or in violation of their status when apprehended in the U.S., or
• were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.