U.S. Immigration Law Explained, in one Long Post

This post is for anyone new to the world of U.S. immigration law and is trying to find a framework to understand issues and the "system." If you are just getting your bearings, START HERE.

This is a non-comprehensive summary of U.S. immigration law. The purpose of this post is to help people new to immigration law understand a framework for different terms and options. If you have questions about this summary, please use the comments section.

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In U.S. immigration law, there are basically a limited number of ‘categories’ of people. Generally speaking, the categories are -

• U.S. citizens;

• Legal Permanent Residents (green card holders);

• Asylees/refugees (that is - people approved for asylum or refugee status);

• Temporary visa holders;

• Asylum applicants;

• People outside the United States without any visa status;

• People inside the United States without a valid visa status (undocumented people, or “illegal aliens” as the term was used in the past).

Often, the idea in U.S. immigration law is to ‘move up’. U.S. citizens have the most rights and protections. A person born in the United States is a U.S. citizen by birth. It is also possible to naturalize, after obtaining a green card.

The list above is hierarchical. You will note that people who are in the United States and do not have a valid legal status are generally worse off than people who are outside the United States without any visa status. One of the big problems in U.S. immigration law is that if a person enters without a proper visa status or overstays his/her status, there are only very limited ways to ‘forgive’ that violation of the law. When people in the news and in Congress talk about ‘immigration reform’ - they are often talking about creating a way in which the 10 million+ people who are in the US without a valid visa status can somehow get a valid visa status. ‘Immigration reform’ is generally about creating some kind of grace in a system that has very little room for grace.

Immigration attorneys are generally involved in helping people move from one of these categories to another. Sometimes people are making a somewhat ‘lateral’ move - that is, moving from one temporary visa status to another. Other times they are moving up, moving from a temporary visa to obtaining a green card or perhaps going from a green card status to U.S. citizenship.

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There are only a limited number of ways to obtain a green card. In general, obtaining a green card is one thing that people want as a green card is permission to live in the United States indefinitely and to work, basically, for any employer. Some people of course do not want to live indefinitely in the United States. Some high net worth individuals may not want green cards and be subjected to disclosing worldwide income.

But often people want to have a green card to give them a lot of flexibility and stability. The following are basically the only ways to get a green card -

• Family relationships (including marriage to a U.S. citizen or green card holder);

• Employment-Based immigration (including a few options to self-petition without an employer);

• Asylum/Refugee/humanitarian eligibility;

• DV (Diversity) lottery.

This post will not go into detail about these categories.

But since it is not necessarily obvious, I will say a few words about the DV lottery. The DV lottery is an annual lottery process conducted online and managed by the U.S. Department of State. There is no cost to register. The DV lottery is only available for people from certain nationalities and who meet certain minimum education and work experience. The nationalities who are eligible are those nationalities that don’t have a lot of immigrants coming to the United States (generally speaking). The concept of the DV lottery is to help people in these countries where there is less immigration to immigrate. You can read more about the DV lottery on the official website of the U.S. Department of State - https://dvprogram.state.gov/.

An attorney is not needed to participate in the registration of the DV lottery. If you are chosen in the lottery, you may want to retain an attorney to help you complete the process. The DV lottery can be highly time-sensitive.

Technically there is no immigration process where an attorney is required. But depending on your own ability to represent yourself and research things on your own, and the particular process you are pursuing, a qualified attorney may be useful.

Increasingly there are non-attorney resources available to people, including websites or consultants or ‘kits’ to help people immigrate. These can work well, or not. Anyone using these resources should be very rigorous in researching them. And even when hiring an attorney, you should be rigorous in researching the qualifications and credibility of your attorney.

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In Employment-Based (EB) immigration, there are multiple categories. These are sometimes known as “preference” categories. This is a very high level summary of the EB categories:

• EB1A - Extraordinary Ability (self-petition possible);

• EB1B - Outstanding Researcher or Professor ;

• EB1C - Intracompany Transferee Manager;

• EB2 NIW - National Interest Waiver (self-petition possible);

• EB2 PNIW - Physician National Interest Waiver (self-petition possible);

• EB2 PERM - Advanced degree professional;

• EB3 PERM - Professional or skilled worker or unskilled worker;

• EB4 - Religious Workers (and some other special, narrow categories);

• EB5 - “Millionaire” investors (that’s shorthand).

In EB immigration, most of the immigrants go through EB2 PERM and EB3 PERM. PERM is a test of the labor market. Basically in the PERM process the employer must advertise a job and show that there are no qualified and willing U.S. workers available for the job.

While it appears that there are various options available that avoid PERM, the truth is that the PERM-exempt options are quite narrow and can be very challenging, especially EB1A.

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There are two big issues to know about the green card process, regardless of the category you pursue.

FIRST - the green card process can be very slow.

SECOND - for all the categories, there are a limited number of green cards available annually and for some of the categories, the demand greatly exceeds the supply. The excessive demand is the reason that people born in India and to a lesser extent China face considerable wait times to get a green card in EB2 and EB3.

Because green card employer sponsorship can easily take years, and because it is generally challenging to get a job in the United States without first being in the United States, often people come to the United States initially on temporary visas. The temporary visas are named after letters - so there are “A” visas and “B” visas and “C” visas, etc. This is based on the relevant regulations. You can read about the temporary visas at 8 C.F.R. Section 214.2. This is a section of the Code of Federal Regulations (CFR).

[As an aside, in the United States, what happens is that the U.S. Congress passes a law (signed by the President) and the law becomes a statute codified in the U.S. Code. Many of the immigration provisions are at U.S.C. Title 8. The federal agencies then create additional detail to support the statute. These additional details are the regulations. The regulations are often easier to understand than the Code. So the Code (Statute) for a lot of immigration law is at Title 8 and the corresponding regulations are at 8 C.F.R. I realize that is a bit confusing.]

The following are some of the common temporary visas used to enter the United States initially -

• B visas (for business visitors and tourists) - also known as ESTA for certain qualifying countries like Western European countries, Canada, Australia, New Zealand, Japan;

• E1/E2 investor visas (for owners but also certain qualifying employees) - these visas are limited to only certain nationalities;

• E3 visas (temporary work visas available only to citizens of Australia);

• F1 student visas;

• J1 exchange visitor visas (used for a wide variety of people including high school exchange students, summer work/study, au pairs/nannies, as well as certain physicians and post-doctoral researchers/scholars);

• H temporary workers - including H-1B, H-2A, H-2B, and H-3, as well as H1B1 for citizens of Singapore and Chile;

• L-1 intracompany transferees;

• O-1 outstanding ability temporary visas;

• TN temporary work visas for citizens of Canada and Mexico.

This is of course not a comprehensive list. You can read more about the various visa options at the official website of the U.S. Department of State -

https://travel.state.gov/content/travel/en/us-visas.html

Certain visa categories really have no annual limit - like B visas and F visas. So a lot of people get B visitor visas or F-1 student visas. And then they seek to transition from those visas into other visas or a green card. But if you have a certain visa, each time you enter the United States you must have an ‘intent’ consistent with your visa. If you have a visitor visa, you must have an intent to visit. If you have a student visa, you must have an intent to study.

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Complicating U.S. immigration law is that there are various U.S. government agencies involved. And these agencies have different responsibilities. A very abridged description of the agencies involved -

• U.S. Department of State - controls the U.S. consulates and “lets you travel.”

• U.S. Customs and Border Protection - controls the airport inspectors and inspectors at the land crossings and “lets you in”

• U.S. Citizenship and Immigration Services (USCIS) - “lets you stay”

• U.S. Department of Labor (DOL) - “lets you work.”

Again, that is a very basic/abridged description of the agencies. In some instances, you cannot go to a U.S. consulate without getting something first approved from USCIS.

Each agency maintains detailed and in some cases quite useful websites with information about immigration processes. If you are interested in learning more about a specific visa or process, you should consider reading about it on an official U.S. government website.

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A key concept in U.S. immigration law that impacts the entire framework is “intent” - that is, U.S. immigration law is set up to assess a person’s intent when they come to the United States and overall the law is generally based on the assumption that people intend to come to the United States permanently and that each person has a burden to show that he or she does NOT plan to come to the United States permanently.

Many people have heard of the legal concept ‘innocent until proven guilty’ - that concept has no place in U.S. immigration law. In U.S. immigration law, the individual ALWAYS has the burden of proof - to establish that he or she is eligible for the visa type he or she is seeking and to establish that he or she will comply with the terms and conditions of the visa.

For everything in U.S. immigration law, keep in mind that U.S. government officials assume every foreign national (a) wants to come to the United States and stay permanently, and (b) wants to work in the United states without authorization. The entire system is based on managing those assumptions.

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OK, the above is not necessary all of immigration law! But hopefully it provides a framework for understanding the system.

What I am trying to do with this Substack newsletter is provide resources and information to people who are trying to navigate this system - either because they are outside the system and want to enter the system, or they are already within the system and are trying to understand where they are and why things are so slow.

If this post has been useful, please share it!

If you have questions, please comment and I will do my best to respond.

Thank you for reading.