Foreign nationals seeking to enter the U.S. must typically apply and obtain a visa. Visas may be divided into two general categories: immigrant and nonimmigrant. Immigrant visas are issued to aliens seeking permanent residence in the U.S., while nonimmigrant visas authorize a stay for a limited period of time with a specific purpose. Following is a discussion of immigration and nonimmigrant visa categories and requirements
IMMIGRANT VISAS
Foreigners seeking admission to the U.S. as immigrants follow one of two paths depending on their residence at the time of application.
Foreigners living abroad apply for an immigrant visa at a consular office of the Department of State. Once issued a visa, they may enter the U.S. and become legal immigrants when they pass through the port of entry.
Foreigners already living in the U.S., including certain undocumented immigrants, temporary workers, foreign students, and refugees, file an application for adjustment of status (to legal permanent residence) with the Bureau of U.S. Citizenship and Immigration Services (USCIS). At the time they apply for adjustment of status, applicants may also apply for work permits. New legal immigrants are automatically authorized to work and should receive alien registration cards (“green cards”) after becoming legal permanent residents.
Immigrant Visa Categories
Immigrant visas may be divided into two categories: visas subject to numerical limitations and those that are not.
Visas not subject to numerical limitations are granted to immediate relatives (children, parents and spouses) of U.S. citizens, resident aliens returning from temporary visits abroad, and former U.S. citizens. To qualify as a “child” of a U.S. citizen the person must be unmarried, under 21 years old, and either a legitimate child, stepchild, illegitimate child, adopted child, an orphan adopted abroad, or an orphan coming to the U.S. to be adopted. A parent with any of the relationships described under the definition of child qualifies as a “parent.” In order to receive a visa as the spouse of a U.S. citizen the alien must have a “valid and subsisting marriage” with that citizen.
Visas subject to numerical limitations are granted to persons qualifying for family sponsored, employment related, or diversity immigrant visas. There are four categories of family sponsored visa preferences: unmarried sons and daughters of U.S. citizens and their children; spouses, children, and unmarried sons and daughters of legal permanent residents; married sons and daughters of U.S. citizens and their spouses and children; and brothers and sisters, including spouses and children, of U.S. citizens ages 21 and over. There are five categories of employment-sponsored preferences: priority workers; professionals with advanced degrees or aliens of exceptional ability; skilled workers, professionals (without advanced degrees), and needed unskilled workers; special immigrants (e.g. ministers, religious workers, and employees of the U.S. government abroad); and employment creation immigrants or “investors.”
Family and Employment-Sponsored Applications
Applying for family-sponsored immigrant status is a multi-step process involving numerous submissions.
- The USCIS must approve an immigrant visa petition filed by a relative and accompanied by proof of relationship to the requesting relative.
- The Department of State must determine if an immigrant visa number is immediately available to the alien, even if he or she is already in the U.S.
- If the alien is already in the U.S., he or she must apply to change his or her status to that of a lawful permanent resident after a visa number becomes available. If the alien is outside the U.S. when an immigrant visa number becomes available, he or she must then go to the U.S. consulate to complete processing.
Applying for employment sponsored immigrant status requires a similar multi-step process, with the added requirement that the employer must file a labor certification request with the U.S. Department of Labor.
Family and Employment-Sponsored Visa Numerical Caps
Family sponsored and employment related immigrant visas are subject to a complicated system of per-country numerical caps. The U.S. Department of State, Bureau of Consular Affairs, publishes a monthly Visa Bulletin that summarizes the availability of visas subject to numerical limitations, and lists the countries that have filled their allotments.
Diversity Lottery
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The “Diversity immigration program” provides another, but more limited, method of gaining permanent residence. Under this program, approximately 55,000 immigrant visas are available annually to aliens who are natives of countries determined by the I.N.S. to be “low admission” countries, that is, countries that are proportionately under-represented in the U.S. immigrant population. To receive a diversity visa, an individual must have at least a high school education or its equivalent, or, within the preceding five years, two years of work experience in an occupation requiring at least two years training or experience.