Bartlett & Weigle Co., L.P.A. - Understanding Immigration

Understanding Immigration

We know that the immigration and visa process can be complex and confusing.
Bartlett & Weigle is here to help you better understand your options as well as represent you in navigating through the process.

What is an Immigrant?

An immigrant is a non-U.S. citizen present in or coming to the United States with an intent to reside there permanently. The laws governing immigration in the United States presume that any foreign-born person (also called a "foreign national") coming to the United States has the intent to become a lawful permanent resident (LPR). An LPR is someone who has been granted an immigrant visa (known as a "green card"). Legal immigrants are the same as LPRs, and they may live and work in the U.S. indefinitely as long as they do not commit any offenses that would subject them to deportation. (Hint: for an immigrant, think "permanent")

What is a Non-immigrant?

A non-immigrant is a foreign national permitted to enter the U.S. for a limited duration for purposes such as travel, school, temporary employment, and business investment (See below for a complete list of the non-immigrant visa categories.). Non-immigrants are granted non-immigrant visas. (Hint: for a non-immigrant, think temporary)

How does one become a legal immigrant?

There are three types of immigration through which a person becomes a legal immigrant, or LPR:

1. Family-based: A U.S. citizen may sponsor his or her spouse, parent (if the sponsor is 21 or older), children, brothers and sisters. An LPR may sponsor his or her spouse, minor children and adult unmarried children. Sponsors must have an income level that exceeds nationally established poverty guidelines by 25% and must promise in writing to support the family member(s) he or she wishes to sponsor. The number of family-based immigrants is limited to 480,000 per fiscal year. Of this number, there is no limit to the number of visas available to:

a. Spouses of U.S. citizens
b. Unmarried minor children of U.S. citizens (includes stepchildren under

          some circumstances)
      c. Parents of U.S. citizens
          (These three types are called "immediate relatives".)

For family-based immigrants who are not immediate relatives, there is a Family Preference System that limits the number of immigrant visas to different foreign nationals, as illustrated in the table below. Backlogs in the quotas are common. For more accurate information regarding visa availability, see the Home Page for current dates.

Family Preference System

U.S. Sponsor

Relationship

Preference Number

Visas Allocated

U.S. citizen

unmarried adult children

1st preference

23,400/year¹

LPR

Spouses and minor childrenbr />

2nd A preference

87,900/year

LPR

unmarried adult children (21 or older)

2nd B preference

26,300/year

U.S. citizen

Married adult children

3rd preference

23,400/year²

U.S. citizen (21 or older)

brothers and sisters

4th preference

65,000/year₃

¹Plus any visas left over from 4th preference
²Plus any visas left over from 1st and 2nd preferences
³Plus any visas left over from the previous preferences

2. Employment-based: Through the Labor Certification Process as well as through several methods for exceptional foreign nationals, including National Interest Waivers, employers can sponsor a foreign national for admission as an LPR. The process usually involves demonstrating to the Department of Labor that there are no available U.S. workers for the job for which an immigrant visa is sought. The number of employment-based visas available each fiscal year is limited to 140,000. There are five types of employment-based immigrant visas, and they are ranked by priority of the needs of the U.S. economy and employers. The five types that comprise the Employment Preference System are summarized in the table below.

Employment Preference System

1st preference

Up to 40,000 visas/year

Priority Worker category, made up of aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers

2nd preference

Up to 40,000 visas/year

Members of the professions holding advanced degrees (higher than bachelor's degree) or aliens of exceptional ability

3rd preference

Up to 40,000 visas/year

Skilled workers, professionals, and other workers

4th preference

Up to 10,000 visas/year

Special immigrants, including ministers, religious workers and others

5th preference

Up to 10,000 visas/year

Persons investing between $500,000 and $3 million in a job-creating enterprise in the U.S. that employs at least 10 U.S. workers per investor

3. Refugees/Asylees: Refugees are foreign nationals located outside the U.S. who want to enter the U.S. to escape persecution in his or her home country. An Asylee is a foreign national who is already in the U.S. that wants to remain because he or she fears persecution in his or her home country.

Refugee and Asylum applicants must prove that they have a well-founded fear of persecution based on one of the following recognized grounds:

a. Race
b. Religion
c. Membership in a social group
d. Political opinion
e. National origin

There is no limitation on the number of persons who may be granted asylum in a given fiscal year. Limitations on the number of refugees admitted annually are determined by the President and are divided up by world regions. For example, the number for Fiscal Year 1998 was 78,000. Further, only 10,000 asylees may become LPRs in any fiscal year, while no limit is placed on refugees.

How does one become a Non-immigrant?

There a number of different types of non-immigrant visas (NIV), and they range in duration from several days to as many as six years. Some NIVs must be applied for in advance through the United States Citizenship and Immigration Service and then reviewed and issued by the State Department. Other NIVs are reviewed by the State Department alone. An important distinction to make when considering NIVs is between the terms "visa" and "status." They are not the same, and confusion sometimes arises. The visa is an actual document applied for that gives the NIV holder a legal basis to come to the U.S. Status is granted to the NIV applicant when he or she reaches the U.S. border.

For example, for an H-1B temporary professional worker, the person has an H-1B visa that is physical document in his or her passport. Once the person shows up at the U.S. border with that visa and is admitted into the U.S., he or she is in H-1B status. The status is important because it is time-sensitive. A person may still have a visa in his or her passport but not be in the U.S. legally because he or she has stayed beyond the status duration granted. Status can be extended or changed by USCIS Service Centers in the U.S. as well as through U.S. consulates abroad. The different types of NIVs currently available are as follows:

A:   Diplomatic Employees and their Households
B:   Business Visitors (B-1) and Tourists (B-2)
C:   Transit Visa (pass-through at airport or seaport)
D:   Crew Member (air or sea)
E:   Treaty Investors or Treaty Traders (from countries with whom the U.S. has a treaty of commerce and investment)
F:   Students
G:   Employees of International Organizations (IMF, UN, etc.)
H:   Temporary Workers (professional, agricultural, temporary/seasonal, trainees)
I:    Representatives of International Media
J:   Exchange Visitors (educational, au pairs, professors, researchers, etc.)
K:   Fiances and Fiancees
L:   Intracompany Transferees (executives, managers, or having proprietary knowledge)
M: Language and Vocational Students
N: NATO Employees
O: Extraordinary Ability Aliens
P: Athletes, Entertainment Groups (e.g., orchestras) and Support Personnel
Q: Cultural Exchange Visitors
R: Religious Workers
S: Criminal Informants