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Obtaining Legal Status in the United States
The process of immigration is a complicated one. But just like other worthwhile goals, attaining legal status can take a lot of work. And we're talking about more than paperwork and appointments with immigration officials.
You'll face many challenges ahead as you try to better understand and possibly change your immigration status, so you need to understand how the system works. You'll be more likely to find success if you have a working understanding of the immigration system in the United States.
This chapter will help you familiarize yourself with some important immigration terms and ideas, and you'll learn some of the ways you can get legal residence in the United States. These ideas will recur throughout the book, so remember to refer back to this chapter if you come across a term you're not sure you understand, or check the index at the back of the book.
Who in the U.S. government handles immigration?
The most important U.S. government agency you need to know about is the Bureau of Citizenship and Immigration Services, or CIS. This is the agency in charge of all immigration services that used to be handled by the Immigration and Naturalization Service, also called INS or la migra. These services include visa petitions, green card and naturalization applications, asylum applications, refugee applications, and more. For information about these services, visit the CIS Web site at www.uscis.gov. You can access immigration forms, filing fees, changes in immigration law, information on CIS office locations, and more.
How do I contact CIS?
If you want to speak with an immigration officer about complex immigration issues, you can make an appointment, also called an InfoPass, for a meeting at your local CIS office. You may need an appointment to discuss matters including emergency travel documents, temporary identification of lawful permanent resident status, or interim employment authorization for those who are eligible. To make an appointment, go to http://infopass.uscis.gov.
WARNING: If you do not have any immigration status or immigration papers, do NOT go to your local CIS office without first consulting an experienced immigration lawyer or accredited representative. You may be exposing yourself to immigration authorities and be deported.
Who is a U.S. citizen?
Anyone born in the United States or Puerto Rico is a U.S. citizen, even if that person's parents are undocumented. Some people who are born outside of the United States inherit U.S. citizenship when they're born if that person's mother or father was a U.S. citizen.
If you're not born a U.S. citizen, you may be able to take steps to become one through a process called naturalization. Lawful permanent residents (green card holders) who meet certain requirements can apply to become U.S. citizens. If a green card holder becomes a U.S. citizen before his children turn eighteen years old, then those children may automatically become U.S. citizens, too, if they already have green cards.
EXAMPLE: Kira is a U.S. citizen. She was working in Costa Rica when she gave birth to her daughter, Marisol. Even though Marisol was not born in the United States, depending on certain requirements, she may have inherited U.S. citizenship through her mother.
EXAMPLE: Jorge was born in San Jose, California. Both of his parents were undocumented at the time of his birth. Jorge is a U.S. citizen because he was born in the United States.
A U.S. citizen cannot be deported or removed from the United States, except in rare circumstances where the citizenship was acquired by fraud. A U.S. citizen can petition for a parent, spouse, child, brother, or sister to immigrate to the United States.
Can you be a U.S. citizen and not know it?
Some people who were born outside of the United States may have inherited U.S. citizenship from a parent who is a citizen. People born outside of the United States who believe a parent or grandparent may have been a U.S. citizen should talk to an experienced immigration lawyer or an accredited representative to discuss the possibility.
What does it mean to be undocumented or "illegal" in the United States?
Undocumented people are those who do not currently have permission to be in the United States. The person may have crossed the border without inspection by an immigration official (sometimes referred to as entry without inspection [EWI] or present without authorization [PWA]), or the person may have entered with a temporary visa such as a student or tourist visa, and the visa has now expired, or the person may have violated the conditions of the temporary visa by working without permission or in some other way. People in the situation of overstaying their visa are often called visa overstays.
Obtaining lawful permanent residency or some other lawful status is not easy for the majority of undocumented people living in the United States. Undocumented people can face serious obstacles to getting a green card if they have traveled in and out of the United States or worked without permission in the United States. Given the complexity of the issue, it is vitally important that you consult an experienced immigration lawyer or accredited representative.
What happens if I am in the United States without papers?
Because of the unlawful presence bars, some undocumented people are hesitant to leave the United States out of fear that they will be unable to reenter, that they will forever jeopardize their ability to get a green card, or that they will have to stay out of the country for years before reuniting with family members here.
EXAMPLE: Guadalupe is an undocumented nanny from Mexico who has lived in the United States for eight years. Her mother is in Tijuana,Mexico, and is very ill. She would like to get permission to visit her mother and return to the United States. She is currently not eligible to apply for any lawful immigration status.
Unfortunately, Guadalupe cannot get permission to travel to Mexico and return to the United States. Permission to travel and to work is given only to people who have lawful status or, in some cases, to people who have submitted an application for lawful status. If Guadalupe asks CIS or the Bureau of Immigration and Customs Enforcement (ICE) for travel permission, they will probably deny her request and put her in removal proceedings.
WARNING: WATCH OUT FOR THE "UNLAWFUL PRESENCE BARS"
Undocumented people who leave the United States and try to return face serious consequences. If an undocumented person is in the United States for between180 and 364 days in "unlawful presence" (without permission) and then leaves, he or she will be barred from reentering or getting a green card for three years. If an undocumented person is in the United States for one year or more in "unlawful presence" (without permission) and then leaves, he or she will be barred from reentering or getting a green card for ten years. If an undocumented person is in the United States for one year or more in "unlawful presence" (without permission), leaves, and then enters or attempts to reenter without permission, he or she may be permanently barred from reentering or getting a green card!
However, just because a person is undocumented does not mean that he or she faces imminent deportation. Millions of people have lived undetected for many years in undocumented status in the United States, and an enormous number of American families are "mixed," containing both documented and undocumented family members. However, undocumented people are vulnerable to detention and deportation and can be picked up by U.S. government officials at any time.
Who can best help me deal with my immigration problems?
While it is good to check in with community and religious leaders, it is important that you consult with an experienced immigration lawyer or a knowledgeable accredited representative. Contact the American Immigration Lawyers Association's Lawyer Referral Service at (800) 954-0254.
What about accredited representatives?
An accredited representative works for a nonprofit organization serving immigrants and has been authorized by the government to represent people with their immigration papers. This means that an accredited representative gives you legal advice, can help you prepare your immigration applications, and can appear with you at any interviews or hearings required before immigration officials or immigration judges. In other words, an accredited representative can do much of what an attorney can to assist you in immigration proceedings and applications. An accredited representative must tell you that this is what he or she is and show you proof if you ask for it.
To find an accredited representative to help you, look for an International Institute, Catholic Charities, or other nonprofit legal services organization near you. These are reputable national organizations that help immigrants with their papers. If they can't help you, they can usually tell you about an honest lawyer or other organization near you that may be able to help. You also can seek advice from respected people in your community, such as religious and community leaders, who may be able to suggest where you can find help.
What is lawful residency?
There are three ways a person can "reside" lawfully in the United States: as a lawful permanent resident, as a lawful temporary resident, or as a lawful conditional resident. All three kinds of lawful residents can lose their lawful status and be deported or removed from the country if they do something "deportable" under the law.
What is a lawful permanent resident?
Lawful permanent residents, or "green card" holders, have the right to live and work permanently in the United States and, with some restrictions, travel outside the United States for extended periods of time.After five years (or less in some cases see pages 111-113 for details), a permanent resident over the age of eighteen can apply to become a U.S. citizen through naturalization. A permanent resident can also petition a spouse or unmarried child to immigrate to the United States.
Permanent resident status is most commonly shown by an alien registration card. These cards are often called green cards. Permanent resident status can also be shown with a foreign passport that has a permanent resident stamp. Some people show their permanent resident status with a stamped I-94 card.
What is a green card?
A green card is a U.S. permanent resident card. It is a noncitizen's proof that he or she has permission to permanently live and work in the United States. The card includes the permanent resident's name, photograph, alien registration number (often called an A number), birth date, and other information. Permanent residents in the United States must carry their green cards with them at all times.
Many Spanish speakers refer to a green card as a mica. Depending on where you live, having a mica could mean having permanent resident status (a green card), having a work permit, or having only a border crossing card, which is valid for seventy-two hours. However, in English, having a green card specifically means having lawful permanent residency status.
In case you're wondering, green cards got their name from their original color, but they're not green anymore.
You'll read more about the different ways to get a green card later in this chapter.
What is a lawful temporary resident?
Lawful temporary residents are people who are in the process of getting legal status through one of the former "amnesty" programs. There are not many lawful temporary residents around anymore because most already have become lawful permanent residents.
What is a lawful conditional resident?
Lawful conditional residents are people who got their green cards through a spouse within the first two years of marriage. They can be eligible to become full-fledged permanent residents after a two-year "testing period." During this two-year period, conditional residents can receive most of the benefits that lawful permanent residents do. They can work, travel in and out of the United States, and count the time they spend as conditional residents toward the requirements for U.S. citizenship. They are given a green card similar to the regular green card except that it has an expiration date of two years from the date of issuance. Near the expiration date, they must apply to have the conditions on their lawful residency removed so they can become lawful permanent residents.
What is a visa?
A visa allows a person to travel to the U.S. border to ask an immigration officer to allow entrance into the country.A visa does not necessarily permit entry into the United States. Only the immigration officer has the authority to permit entry and to decide the length of stay for any particular visit.
There are two categories of U.S. visas: immigrant and non-immigrant.
What are immigrant visas?
Immigrant visas are granted to people who are coming to the United States and are eligible for a green card. People with immigrant visas use this visa at the border to enter the United States. Once they enter the country, they are permanent residents. People with immigrant visas also use their visas when they are inside the United States, for example, as proof that they are eligible to work legally.
Each year the U.S. government issues 140,000 "employment based" permanent visas. These go largely to people who are sponsored by their employers and have permanent offers of employment in the United States.
What are nonimmigrant visas?
Nonimmigrant visas give people the right to enter and remain in the United States temporarily for a specific purpose. Some nonimmigrant visas can lead to permanent resident status, but most do not. Some nonimmigrant visas allow the visa holder to work legally in the United States, but many do not.
People usually must apply for a nonimmigrant visa at their nearest U.S. consulate in their home country.
If people are already in the United States on one kind of nonimmigrant visa, they can change to another nonimmigrant visa category without having to leave. There are some restrictions on changing visa categories, so it's important to consult an experienced immigration lawyer or accredited representative before one's current status expires.
What are the different kinds of nonimmigrant visas?
There are many different kinds of nonimmigrant visas.
A: Diplomatic employees and their households.
B: Business visitors (B-1) or tourists (B-2). These are granted to visit the United States temporarily for business or pleasure. This visa generally is issued for six months and can be extended up to one year. To be approved for a B visa, you must show that you have no intention of coming to the United States permanently by showing work, family, and social ties to your home country.
C: Aliens in transit (pass-through at an airport or seaport).
D: Crewmember (air or sea).
E: Treaty investors or treaty traders (from countries where we have a treaty of commerce and investment).
F: Students. These visas are granted to attend a nonvocational school, college, university, language program, or art school as a full-time student. These visa holders have limited ability to work legally in the United States and the visa does not lead to eventually getting a green card.
G: Employees of international organizations (International Monetary Fund [IMF], Overseas Private Investment Corporation [OPIC], Organization of American States [OAS], International Red Cross, etc.).
H: Temporary workers. These are granted to the following professionals: professionals in specialty occupations (H-1B), nurses (H-1C), seasonal agricultural workers (H-2A), temporary or seasonal workers, nonagricultural, service sector work (H-2B), or trainees (H-3), and people from Canada and Mexico on special projects (TN visas).
I: Representatives of international media.
J: Exchange visitors, including educational exchange students, au pairs, graduate medical trainees, practical training students, professors and researchers, short-term scholars, camp counselors. These are for people who come to the United States to work, study, or receive training. Upon completion of their training, many of them must return to their home countries before they can change their immigration status or get a green card.
K: Fiancés and fiancées; spouses of U.S. citizens married abroad. These people are granted temporary status and eventually can get a green card. They also include the fiancé(e)'s children, or the children of the spouse of a U.S. citizen who are waiting outside of the United States for the approval of an immigrant visa petition.
L: Intracompany transferees (executives, managers, persons with proprietary knowledge).
M: Language and vocational students. These are granted to people who attend a specific educational or vocational program such as flight school or cooking school. M visa holders cannot work and can accept only practical training after their studies are completed.
N: NATO employees.
O: Extraordinary ability aliens.
P: Athletes, entertainment groups (such as orchestras), and support personnel.
Q: Cultural exchange visitors (e.g., participants at the Washington, D.C., Smithsonian Folklife Festival and performers at the Disney's Epcot Center Mexico Pavilion).
R: These are for ministers and other professional religious workers. The visa is valid for three years and can be extended an additional two years.
S: Criminal informants. People who are working with the attorney general's office on a criminal investigation or prosecution of a criminal organization or enterprise may receive this visa.
T: These are for victims of a severe form of trafficking in persons. These people are granted this visa because they are living in the United States as victims, and would suffer extreme hardship involving unusual and severe harm if removed. This visa also is available to the trafficking victim's spouse and children (and parents if the victim is under twenty-one years old). T visa holders are eligible to get a green card after three years.
TN: NAFTA professionals.
U: These are for victims of criminal activity, and for people who have been helpful in a law enforcement investigation or prosecution of a crime and have suffered substantial physical or mental harm as a result of the crime. The crimes that qualify victims for this visa include domestic violence, felonious assault, prostitution, torture, incest, rape, sexual assault, kidnapping, and abduction. Some victims' spouses, children, and siblings will also qualify for the visa. U visa holders are eligible to get a green card after three years.
V: Spouses and minor children of permanent residents who are waiting for green cards. These people are granted a temporary status and permission to work, are protected from deportation, and eventually can get a green card. The V visa is available to the spouses and minor children of lawful permanent residents who have been waiting to immigrate through a petition filed by their permanent resident relative for at least three years. The permanent resident family member must have filed the visa petition before December 21, 2000.
What other kinds of status are there?
There are many other kinds of legal status that allow people to live and work in the United States. Some are temporary and do not necessarily lead to people becoming permanent residents, while others allow people to become permanent residents, and then if they so choose, to apply to become citizens. These include:
!49; Asylees and Refugees: These are people who have been granted political asylum or refugee status and who have not yet become permanent residents. They have the right to work, to travel outside of the United States, and to accept certain public benefits. They are also eligible to eventually become permanent residents.
Deferred Action: This is granted to people due to compelling circumstances. The most common recipients of deferred action are abused spouses and children with approved immigration self-petitions under the Violence Against Women Act (VAWA). Deferred action does not lead to a green card. However, approved VAWA self-petitioners are separately eligible to get a green card.
Parolees: These are people who CIS and/or CBP (Customs and Border Protection) have allowed into the United States for a variety of reasons. People may receive parole status because they have serious medical conditions that require treatment in the United States or are important witnesses in criminal proceedings. Being granted parole does not lead to getting a green card.
Temporary Protected Status (TPS): This is a temporary immigration status. It does not lead to a green card and is granted to people from countries that the United States considers too dangerous to return to because of ongoing armed conflict (places such as Liberia and Somalia), environmental disasters (such as when huge earthquakes hit El Salvador in 2001 and Hurricane Mitch hit Honduras and Nicaragua in 1998), or other extraordinary and temporary conditions. If a country receives a TPS designation, some people from that country who already are in the United States may remain here and receive work authorization for a temporary period of time. Those who receive TPS must reregister for TPS annually.
As of early 2008, TPS designated countries are Burundi, El Salvador,Honduras,Nicaragua, Somalia, and Sudan.
What are some ways to immigrate to the United States and get a green card?
There are many different ways people become lawful permanent residents. Some of the most common ones are discussed below. Family-based immigration: The vast majority of lawful permanent residents immigrate to the United States through a U.S. citizen or lawful permanent resident family member. You'll find the eligibility requirements and an explanation of the process later in this book.
Employment-based immigration: Some foreign workers who have unique job skills and a job offer from a U.S. employer can obtain lawful permanent residency if they can show that they will not displace an American worker or have extraordinary ability. You'll find the eligibility requirements and an explanation of the process later in this book.
Asylee and refugee status: People who have been persecuted or may be persecuted in their home countries because of their race, nationality, political beliefs,membership in a particular social group, or religion and are determined to be asylees or refugees can obtain lawful permanent residency. Eligible asylees and refugees must be able to show that they fear harm from the government in their home country or harm from a group that the government is unwilling or unable to control (for example, guerrillas or death squads).
Cancellation of removal: Individuals who are in removal proceedings can have their removal from the United States canceled by an immigration judge if they have been in the country continuously for ten years or more, have "good moral character," and can show that their deportation would result in exceptional and extremely unusual hardship to their U.S. citizen or lawful permanent resident spouse, parent, or child. Individuals who are granted cancellation of removal obtain lawful permanent residency.
FRAUD ALERT: Be careful if someone tells you that it is easy to get a green card if you have been in the United States for ten years. This is a lie and a common scam.
Diversity visa lottery: Winners of a visa lottery among countries with low immigration to the United States can obtain lawful permanent residency. The green card lottery, officially called the Diversity Visa Lottery Program, gives out fifty thousand immigrant visas per year to people from countries with low rates of immigration. The countries include those that have sent fewer than fifty thousand immigrants to the United States in the past five years. People from Canada, China, Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, Poland, Russia, South Korea, the United Kingdom, and Vietnam cannot participate because they come from countries that have sent more than fifty thousand immigrants to the United States in the past five years.
In order to qualify, one must a) be from a country that is able to participate in the visa lottery, b) have a high school diploma or equivalent or two years of certain kinds of work experience, and c) apply to enter the lottery. There is no fee to apply.You may also apply from within the United States. The application must be submitted online during the set registration period,which is usually in the autumn months. Winners are chosen randomly from all of the qualified entries and are allowed to bring their spouse and any unmarried children under the age of twenty-one.
NACARA for Nicaraguans, Cubans, and Former Soviet Bloc Nationals: The Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) provides permanent residency to nationals of Nicaragua or Cuba who have been physically present in the United States since December 1, 1995, are admissible, and filed the application for permanent residency before April 1, 2000.
Relief for Haitians: Haitian nationals who were present in the United States since 1995 and filed applications before 2000 are eligible for permanent residency under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA).
Registry: People who have lived continuously in the United States since January 1, 1972, may apply for lawful permanent residence under the registry program. To qualify, they must be "admissible" and must be able to establish "good moral character."
Someone who is "admissible" can lawfully enter the United States after inspection or permission by an immigration officer. Noncitizens need to be admissible every time they make an admission into the United States, apply for a green card, or apply for a visa. Immigration law contains a list of things that would make someone inadmissible, some of which you can find later in this book. Violence Against Women's Act (VAWA): People who are eligible to immigrate through a U.S. citizen or green card holder spouse, parent, son, or daughter but can't because that family member is abusing them can petition for themselves to immigrate to or to remain in the United States and apply for a green card on their own petition. See chapter 2 for more on the VAWA.
Copyright © 2008 by Luis Cortés Jr.