How does immigration generally work in the United States?
Immigration is a matter of federal law. Pursuant to the United States Constitution, states cannot make laws concerning immigration, only the federal government can.The United States of America has 3 branches of government: Legislative, Judicial, and Executive. The Legislative Branch (Congress) makes the laws; the Judicial Branch (Courts) interprets the law; and the Executive Branch, headed by the President, enforces the law.The U.S. Constitution places the most control over immigration with the Executive Branch. Within the Executive Branch, immigration related matters are handled primarily by the following 4 agencies:
- U.S. Citizenship & Immigration Services (USCIS) – immigration
- U.S. Department of Homeland Security (DHS) – border enforcement
- U.S. State Department – regulates visas and travel to the United States by foreigners
- U.S. Department of Labor – sets policies for hiring of foreign workers
What do I need to come to the United States?
Generally, a foreigner needs: 1) a valid passport from their home country; and 2) a visa.
What is a visa?
A visa is a permit given by the U.S. government for a foreigner to enter the United States for a period of time. Usually, it is a stamp placed on a page in your passport.
Although there are many different types of visas, with differing purposes and eligibility requirements, a visa generally falls into 1 of 2 main categories: Immigrant or Non-Immigrant.
The immigrant visa is better known as the green card, or lawful permanent residence. This immigration status allows foreign nationals to live and work in the United States indefinitely. There are many paths to the green card. Some are obtained through an individual’s job (often referred to as Employment-based Immigration) while others are obtained by virtue of a family member petition (often referred to as Family-based Immigration). Still others are obtained after having spent time in refugee or asylum-recipient status.
For individuals already residing in the United States, permanent residency can be acquired through the USCIS (United States Citizenship and Immigration Services) through a process known as an “adjustment of status”. All others intending to immigrate to the United States go to a U.S. embassy or consulate in his or her home country to complete the application for a green card/lawful permanent residence (“LPR”). This involves submitting forms and documents to the consulate, and attending an interview there, and is known as “consular processing”.
Although LPR status is indefinite, the permanent resident can lose status if he or she is deemed to have abandoned it due to having been absent from the United States for too long without the necessary permission. Alternatively, certain criminal acts can be grounds for removal proceedings in the EOIR.
There are several options for temporary stays in the United States, with purposes including visits for pleasure, work, study, and more. Some, such as the B-1/B-2 business/tourism visa, can be obtained directly at a U.S. consular post, while others, such as the H-1B and L-1A, require a petition be filed with USCIS. The non-immigrant visa category is a broad one, including professional workers, artists, athletes, journalists, crews of passenger vessels and commercial airlines, students, investors, business executives, interns, and cultural exchange visitors, among many others.
Temporary employment visas allow employers to hire foreign nationals to work in a specific job for a limited time period. Depending on the visa classification and, in some cases, the nationality of the intended employee, the employer may be required to file, as a first step, a petition for a nonimmigrant worker with U.S. Citizenship and Immigration Services (USCIS). If approved, a State Department consular officer then determines the foreign worker’s eligibility for a nonimmigrant visa. Once the visa has been issued, the worker may travel to the United States to assume employment with the petitioning employer. Upon arrival in the U.S., a Customs and Border Protection (CBP) officer will inspect the worker to confirm eligibility for admission and to determine the specific length of stay. Upon expiration of the period of stay (assuming it has not been extended by USCIS), the worker must depart the United States.
Detailed information about the different types of available visas can be found on the State Department’s website.
Do I always need a visa?
Not always. Thirty-eight (38) countries are eligible for the Visa Waiver Program. However, this program is only good for temporary travel (90 days or less), and requires an electronic passport as well as advance permission.
What happens if I entered the US without a visa or overstayed my visa?
You are in the U.S. illegally.
Visa overstays or illegal entries can subject an individual to removal proceedings from the U.S., and trigger bars preventing reentry for 3-10 years. If you are in the U.S. illegally, you should contact an immigration attorney to discuss your situation immediately.
What is EWI?
EWI stands for “Entry Without Inspection”. Persons who unlawfully enter the U.S. without inspection (at an authorized port of entry) or parole (visa issued at a consular post abroad) are considered to be “inadmissible” under the Immigration and Nationality Act (INA). To be admissible, the law requires a lawful entry into the U.S. after inspection and authorization by an immigration officer. Individuals who are inadmissible are ineligible to receive visas and be admitted to the U.S.
What are my chances of facing deportation or removal?
If you are in the U.S. illegally, you are subject to removal at any time. Contact an experienced immigration attorney to discuss your legal options.
What happens if I am undocumented and get arrested in the United States?
Criminal convictions have huge consequences in matters of immigration law. You should not accept a plea deal until you have talked to a lawyer experienced in both immigration and criminal law.
What is a removal proceeding?
A removal proceeding, also known as a deportation proceeding, is a court process initiated by the government to remove/deport an individual (residents and non-residents) from the United States. Hearings are held at local immigration courts where it is important that an individual be represented by a qualified immigration attorney. Some of the reasons that a person may be placed in removal proceedings are as follows: commission of a crime, immigration status violations, abandoning his or her residency, immigration fraud, or entering the U.S. illegally or without proper documentation.
The foreign national will be required to appear at the immigration court for a master calendar hearing at which the charges against him or her are read and a request for relief or extension of time may be made. In certain circumstances, the foreign national is arrested and held in detention. In these cases, it may be possible to apply for a bond to be released during the removal proceedings process.
The process begins when the government files a Notice to Appear, known as the NTA, with the local immigration court. This is a document which details the reasons that the government believes a foreign national to be removable from the U.S. and charges the individual with removability under specific provisions of law. Our experienced immigration attorneys can then determine what relief may be available to the individual as a defense to deportation.
Some common forms of relief available in Immigration Court proceedings are the following:
- Cancellation of Removal for Lawful Permanent Residents: Certain lawful permanent residents can remain in the U.S. even after being found deportable for a criminal conviction if he or she meets certain requirements and shows that he/she merits relief under the pertinent case law. If relief is granted the deportation is cancelled and the person remains a lawful permanent resident.
- Cancellation of Removal for Non-Permanent Residents: Individuals without status in the U.S. can apply to cancel his or her deportation if he/she meets the following criteria: 1) has been continuously present in the U.S. for 10 years before the initiation of removal proceedings; 2) has not committed any crimes rendering him or her inadmissible; 3) has been a person of good moral character for 10 years; and 4) can demonstrate that his or her U.S. citizen or resident spouse, parent or minor child will suffer “exceptional and extremely unusual hardship” in the event the foreign national is deported. If this relief is granted the deportation is cancelled and the individual is granted lawful permanent resident status (green card).
- VAWA Cancellation of Removal: This is a special form of cancellation of removal for those foreign nationals who are in abusive marriages with a U.S. citizen or resident. The individual must demonstrate that he or she is a person of good moral character and has been physically present in the U.S. for the three years before the initiation of removal proceedings and that he or she suffered extreme cruelty and abuse at the hands of the U.S. citizen or resident spouse or parent.
- Adjustment of Status (with or without a waiver): Applications for permanent residency may be filed with the Immigration Court either as an initial application or a renewal of an application previously denied by USCIS.
- Waivers: There are various waivers of deportability for certain individuals who have committed crimes or past immigration fraud. Most waivers requiring a showing of “extreme hardship” to a U.S. citizen or resident spouse or parent. Some of these waivers included waivers under Section 212(h), 212(i) and 212(c) of the Immigration & Nationality Act.
- Voluntary Departure: An individual may choose to take an order of voluntary departure and depart the United States on her own volition during a period of time set by the immigration judge. A voluntary departure order allows an individual to depart the U.S. without having received an actual order of removal/deportation.
- Asylum: An individual who fears for his life in his home country may apply for asylum, withholding of removal or relief under the Convention Against Torture.
Unfavorable decisions issued by the immigration courts are appealed to the Board of Immigration Appeals in Falls Church, Virginia. Denials of cases by the Board of Immigration Appeals are appealed to the U.S. Circuit Court of Appeals with jurisdiction over the immigration court which issued the initial denial and order of deportation.
If I am in removal proceedings, can I get a bond?
It depends. Typically, if there is a viable way for an individual to stay in the country, and the absence of any circumstances that would require mandatory detainment, a bond can be obtained upon a hearing with the Court.
If you are in any kind of removal proceedings, you should consult with an immigration attorney immediately.
What is Adjustment of Status (“AOS”)?
The Immigration and Nationality Act (INA) permits the change of an individual’s immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.”
The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.
Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible to adjust status) to obtain a visa abroad and enter the United States as a permanent resident. This pathway is referred to as “consular processing.”
You can read more about Adjustment of Status at the USCIS website.
What is a Green Card? / How do I get one?
A “Green Card” is a card that shows a person has adjusted his of her status to that of a lawful permanent resident in the U.S. and is now entitled to live and work in the U.S. permanently.
Obtaining a green card can be a long and difficult process. Consult with an experienced immigration attorney to determine the best path toward getting your green card.
How long will the immigration process take?
The immigration process can take anywhere from a few months to many years, depending on a multitude of factors.
Regardless of your immigration goals, whether it be to get a green card, become a U.S. Citizen or a acquire a temporary work visa, it is imperative that you seek good legal counsel to make sure things are being handled properly in your case from its beginning through its conclusion. An incomplete or subpar application can have catastrophic consequences to your immigration case — from substantial delays, to having to start over, to outright denial.
How much will it cost?
Immigration fees and costs also run the gamut depending on the type of case. Most cases require payment of filing fees in addition to legal fees paid to immigration counsel. Filing fees are set by USCIS and change periodically. Check the USCIS website for the current fees.
To get your immigration case started, you can either call us at 844.800.6335, email us at firstname.lastname@example.org, or contact us online. After gathering some basic background information via new client questionnaire, we will schedule your initial consultation where you’ll be provided a custom tailored plan to fit your immigration needs, including an itemization of all associated legal and filing fees. The initial consultation fee of $100 will be applied to your attorney fees if you hire us within 30 days of the consultation.