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Immigration Types

Immigration refers to the process by which persons move from their place of origin or residence to settle in another country. According to the United States Department of State, the U.S. admits over a million people per year either as lawful permanent residents, refugees, and other immigration arrangements. Interested persons can learn about the types of immigration in the country, including several arrangements that entitle foreigners to legally live and work in the country. Similarly, persons that have some issues with their immigration status can learn about several ways of legalizing their stay in the country.     

Family Preference and Immediate Relative Petitions: The Basics

Family preference and immediate relative petitions are the two primary family-based immigration petitions recognized under U.S immigration law. Through these petitions, American citizens and lawful permanent residents (LPRs) can apply to immigrate their close relatives to the country to live and work there. Once granted, such a relative becomes an LPR or green card holder, though the permanent resident card has not always been green.  Overall, about 80% of all legal immigration into the U.S. has been through a family visa.

Though both types of family-based petitions are in place to ensure family unity, a principal policy underlying U.S. immigration law, the petitions differ in application and procedures.  

  • Immediate Relative Petition. Provided under Section 1153 of the Immigration and Nationality Act (INA), this type of petition can be used only by citizens to immigrate their immediate relatives, including their spouses, unmarried minor children, and parents (if the citizen is an adult). For the purpose of immigration, a child is someone below the age of 21. 

    A major benefit of this petition is that immediate relatives of U.S. citizens have immigration priority. There is no limit or quota on the number of visas available to them each year. They are also not subject to the long waiting period that exists in many of the preference categories. However, unlike family preference, immediate relative petition applies only to primary beneficiaries. That is the relatives mentioned above. This means that the spouse and minor children of immediate relatives must have their own petitions filed and qualify for a green card separately. 

  • Family Preference Petition. The family preference system allows U.S citizens to immigrate their adult children, whether married or not and their adult siblings. LPRs can also immigrate their spouses and unmarried children (both minor and adult) using this petition. Persons eligible for visas are known as primary beneficiaries. Upon approval of a primary beneficiary's family preference petition, the person’s spouse and minor children may also be eligible for a green card.

    The U.S controls legal immigration into its jurisdiction each year through numerical limits known as quotas. This numerical limit regulates the rate of family-based immigration and the number of permanent resident visas available per country each year.  Currently, the total number of family petitions that can be approved each year is statutorily set at 226,000. Due to this limit, the INA provides a list that determines which class of relatives will take precedence in getting visas. The following are the family preference categories under the INA: 

    • First Preference: Unmarried children of U.S. citizens who are 21 years or older
    • Second Preference: The second preference category is further divided into two. First, spouses and minor children of Lawful Permanent Residents. Second, unmarried children of Lawful Permanent Residents who are 21 years or older.
    • Third Preference: married children of U.S. citizens who are 21 years or older
    • Fourth Preference: siblings of a U.S. citizen who are 21 years or older.

The higher the priority, the shorter the waiting time for the relative to get a visa. Interested persons can check available visa numbers on the Visa Bulletin provided by the U.S Department of State.

According to statistics provided by the U.S Department of State’s Bureau of Consular Affairs, the U.S issued a total of 170,604 immediate relative visas and 63,858 family preference visas during the 2021 fiscal year. 

What Types of Citizenship Status Can You Have in the US?

Per U.S laws, there are two fundamental status and arrangements that identifies a person’s strong connection to the country. This includes citizenship and nationality. 

Citizenship carries significant privileges, rights, and public benefits. Citizens cannot be deported, except if the status was obtained fraudulently. Additionally, citizens' close relatives such as spouses, children, parents, and siblings can become legal residents and citizens. 

The Fourteenth Amendment to the U.S Constitution defines citizens as persons born or naturalized in the United States. Accordingly, there are two ways of obtaining citizenship in the U.S, which are by birth or through naturalization.

  • Citizenship by birth: Under U.S. laws, any person born within the United States, including its territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands, is entitled to citizenship status. However, this rule does not apply to the children of foreign diplomats and members of sovereign Native American tribes. 

    Children born outside the U.S. may also acquire citizenship automatically in certain circumstances, including if:  

    • At the time of birth, the parents were U.S citizens, married, and either of them lived in the U.S or any of its territories, or both before the child was born.
    • The child was born on or after November 14, 1986, and at the time of the child’s birth, the parents were married, and one of them was a U.S. citizen physically present in the country or its territories for at least five years before the birth of the child. At least two of the five years spent must have been after the person’s 14th birthday. 
    • The child was born between October 10, 1952, and November 14, 1986, to married parents of which one of them was a U.S citizen at the time of the birth and had been physically present in the country or any of its territories for a minimum of ten years before the child’s birth. At least five out of the ten years of residence must have been after the parent clocked 14.

  • Citizenship through naturalization: Naturalization refers to the process in which immigrants can voluntarily become citizens of the United States. Several circumstances qualify an immigrant for U.S. citizenship through this process. Generally, the person must be at least 18 years old and must have fulfilled any of the following eligibility conditions:

    • Five years as a lawful permanent resident, including physical presence in the U.S for half the time prior to an application for citizenship
    • Three years in marital union with a U.S. citizen while being a permanent resident 
    • Qualifying service in the U.S. Armed Forces.

      In addition to the conditions above, the person is also required to have good moral character and support the U.S Constitution.

      An extension of naturalization is citizenship through derivation. This classification allows children of persons that naturalize to become citizens if:
    • The child is below 18
    • The child was in the legal and physical custody of the parent, that is a U.S citizen.
    • The child is a lawful permanent resident.

Under Section 1101(a)(21) of the INA, a national refers to a person owing permanent allegiance to a state. This includes all U.S citizens as well as certain non-citizens. As such, all citizens are nationals, but not all nationals are citizens. Noncitizen nationals include persons born in American Samoa and Swains Island, legally referred to as outlying possessions of the United States. Persons born in Guam between 1898 and 1950, Puerto Rico between 1898 and 1917, the US Virgin Islands between 1917 and 1927, or the Philippines between 1898 and 1946 would qualify as U.S. nationals. 

Though U.S nationals share certain privileges with citizens, including, the right to live, work, and travel into the country, the right to a U.S passport, and consular protections, they do not have the right to vote and be voted for in federal elections. To be able to do that, they need to become naturalized citizens. However, unlike green card holders, their status cannot be revoked. 

Other arrangements that entitle a person to live and work permanently in the U.S include:

Lawful Permanent Residency
Lawful permanent resident (LPR) status grants a foreign-born individual the right to live and work permanently in the country. LPRs are also known as green card holders because proof of LPR status, the Permanent Resident Card, is commonly referred to as a green card. 

Though being an LPR comes with several benefits, including the opportunity to naturalize and petition for relatives to come over, it has a limited scope of rights and privileges compared to citizenship. Notably, unlike citizens, LPRs cannot vote or run for political office, and they do not have higher priority when petitioning for relatives to join them in the country. Also, green cards must be renewed after ten years, while citizenship is permanent.  

The most common way of acquiring LPR status has been through family-based immigration visas, petitioned by a relative that is either a citizen or an LPR. However, it is also possible to become a green card holder through employment and diversity-based visas. The diversity visa program is a free lottery that people from several countries can enter for a chance to be granted U.S green cards.

A foreigner may also become an LPR by adjusting status from other immigration arrangements, including asylum and nonimmigrant visas such as T and U visas. 

It is important to note that lawful permanent residents can be subject to removal or deportation for engaging in certain crimes and immigration violations specified in Federal Immigration Law. 

Conditional Permanent Residency
Conditional permanent residency is a status granted to foreign-born spouses and children applying for residency based on a marital union with an LPR or citizen. The status gives its recipients the right to live and work in the U.S for two years, which can be extended if the foreigner and the spouse have jointly applied for a green card before the expiration of the initial term. Other circumstances that can lead to loss of conditional permanent resident status include:  

  • Affirmative termination of the arrangement before the two-year period expires.
  • Denial of the joint petition filed by the spouses.
  • If the marriage was entered fraudulently.
  • Divorce, unless a waiver is available due to hardship reasons like a battered spouse, or if the applicant can prove that the marriage was genuine though it was short.

What are U.S. Nonimmigrant Visas?

U.S nonimmigrant visas are special types of visas that allow foreign persons into the country for particular purposes, which may include educational, tourism, or business purposes. The duration of the visa is usually short and specified in the grant. Recipients of this kind of visa are legally referred to as non-immigrants, as there is no intention to immigrate. Therefore, persons staying beyond the specified without any legal arrangement would be treated as though they entered the country illegally.

It is important to note that granting of a visa is not a guarantee that the applicant will be admitted into the U.S. Issuance of a visa simply signifies that a consular officer or the consulate has assessed the application and found the applicant to be qualified for admission into the country for the intended purpose. Upon entry into the country, a US Customs and Border Protection officer will still have to inspect the person to determine whether or not they are eligible for entry under U.S. immigration law. 

According to statistics provided by the U.S Department of State’s Bureau of Consular Affairs, the country issued a total of 2,792,083 nonimmigrant visas during the 2021 fiscal year alone. 

Who Needs a Nonimmigrant Visa?

Foreigners without green cards intending to visit the U.S temporarily require nonimmigrant visas relating to the reason for their visit. However, citizens of certain countries can visit the U.S for tourism, business, or while in transit without a nonimmigrant visa; so far, the visit is not for more than 90 days. This arrangement is applicable to 38 countries under what is known as the Visa Waiver Program (VWP). 

Apart from being a citizen or national of a designated country, persons intending to take advantage of the waiver program must also have authorization through the Electronic System for Travel Authorization (ESTA) before boarding an air or sea carrier going into the U.S. The ESTA is a web-based system utilized by U.S. Customs and Border Protection (CBP) to determine whether a person is eligible to travel to the U.S for business or tourism under the VWP.  

Furthermore, Canadians can visit the U.S. without visas except when the entry is for work, study, investment, or immigration. Typically, they can be allowed to stay between six months to a year, depending on the purpose of entry. 

What are the Nonimmigrant Visa Types?

The U.S. nonimmigrant visa types are based on the purpose of an applicant’s visit. The INA lists out such types of visas, which include: 

  • A-Visa: This visa applies to diplomats and foreign government officials traveling into the U.S on official duty or to represent their government. 
  • A-2 (NATO1-6) Visa: This visa is available only to foreign military personnel who are to be assigned official tasks or stationed in the U.S.
  • B-1 (Temporary Business) Visa: This visa applies to business associates, persons attending scientific, educational, and business conventions, as well as persons visiting the U.S for estate settlement or contract negotiations. 
  • B-2 (Tourism) Visa: This visa applies to visits for pleasure or medical treatment, including tourism, visiting friends and family, and participation in events.
  • Border Crossing Card (BCC) Visa: The BCC is a card that permits only Mexicans into the U.S. Application for the card requires a valid Mexican passport. The card is usually valid for ten years. 
  • C (Transit) Visa: This visa applies to persons traveling through the U.S. but whose final destination is another country. This visa does not permit visits during transit. Persons with B-type visas or visa waivers can also transit through the U.S. 
  • CW-1 Visa: Through this visa, employers from the Commonwealth of the Northern Mariana Islands (CNMI) can bring in foreign workers that do not fit in other categories of employment visas.
  • D Visa (for crew members): crew members on sea vessels or international airlines require D visas to work within the country.
  • E Visas: this visa applies to citizens of countries with treaties of commerce and navigation in the U.S. The visa is further divided into two. First is the E1 Treaty Trader visa, which applies to persons that trade in technology or other activities between the U.S and the other party to the treaty. Second is the E2 Treaty Investor visa for persons overseeing the operation of a company in which they have invested capital.
  • E-3 Visa; This type of visa applies only to Australian nationals intending to work in specialty occupations in the U.S. Successful E-3 visa applicants can be accompanied by their spouses and children.
  • F and M Visas: These are visa types for educational and vocational purposes. Students can apply for either of the visas depending on their school and field of study.
  • G1-G5 Visas: this applies to employees of international organizations in the U.S. Foreigners working with NATO would require NATO visas. 
  • H1-B for Specialty occupation: To be eligible for this type of visa, an applicant must hold at least a Bachelor's degree in a specific specialty. Based on this, the U.S. Citizenship and Immigration Services (USCIS) will determine whether the person’s employment qualifies as a specialty occupation and whether the person is qualified to offer the service. As part of the application, an employer is required to file a labor condition application with the Department of Labor containing the terms and conditions of the contract of employment with the applicant.
  • H-1 B-1: Applies to Singaporean and Chilean citizens intending to work in the U.S. temporarily. To be eligible, an applicant must already have a job offer in the U.S.
  • H-2A for Seasonal agricultural workers: through this visa, employers in the U.S can bring in foreigners for temporary agricultural jobs if U.S. workers are unavailable. 
  • H-2B for seasonal non-agricultural workers: This visa is available to persons filling temporary or seasonal positions for which there is a lack of American labor. 
  • H-3 for trainees: This visa applies if the applicant is going to the U.S. to be trained by an employer for up to two years in any industry. Although the training can be paid for, it cannot be utilized to create profitable employment.
  • H-4 for dependents: this applies to spouses and unmarried minor children of H visa holders. While they can accompany the come into the country using this visa, they are not allowed to work. 
    -** I Visa**: This type of visa applies to journalists and representatives of foreign media visiting the U.S for work or educational media activities. 
  • J Visa: this visa applies to exchange visitors such as scholars, students, teachers, professors, interns, and summer workers. 
  • L-1 for intra-company transferees: this visa applies to employees of multinational companies who are being transferred temporarily to a branch, subsidiary, or parent company located in the U.S. Such an employee must be at the management or executive level and must have worked for the company for a year continuously within three years before the application. 
  • L-2 for dependents: spouses and unmarried minor children of L visa holders can get an L-2 visa to accompany the L visa holder into the country. While the children will not be able to seek employment based on these visas, spouses can work after filing a Form I-765 along with the required application fee. 
  • O-Visa: This applies to persons that have extraordinary ability in arts, science, business, education, or athletics and intend to work temporarily in their field of expertise. To get this type of visa, these people have to be essential to the provision of services in their area of expertise.
  • P-Visa: This type of visa applies to athletes, entertainers, and artists intending to perform in the U.S. 
  • Q-Visa: This visa applies to persons visiting the U.S. to participate in a cultural exchange program. Cultural exchange programs are programs that enable foreigners to share their history, culture, and tradition in the U.S. Persons visiting the U.S for certain practical training and employment may also obtain this visa. 
  • R Visa: This visa applies to temporary religious workers intending to practice within the U.S.
  • T Visa: This visa applies only to victims of human trafficking. 
  • TN/TD Visas: This visa applies to Canada and Mexico citizens working in the NAFTA Organization. The visa is not available to permanent residents of the countries.
  • V Visa: This visa is to reunite persons whose immigration process is awaiting completion with their families in the U.S. 
  • U Visa: Applies only to crime victims to aid the investigation and prosecution of the perpetrators.

How to Apply for a U.S. Nonimmigrant Visa

The process of applying for a visa varies depending on the U.S. Embassy or Consulate where the application is being made. Applicants are required to follow specific instructions that apply to their home state. Nonetheless, here are some steps that are common to most applications for U.S. nonimmigrant visas.

The first step is to determine whether or not a visa is required. Nationals of certain countries enjoy visa waivers and as such may not require visas to travel. After determining whether a visa is required, the next step is to select the visa category that corresponds with the purpose of travel. After which, the applicants are to complete and submit the DS-160 visa online application form. The form requires applicants to provide several supporting documents such as a photograph, a valid passport, and social media details. 

Certain kinds of visas may, however, require additional documentation. For example, those applying for exchange programs and educational visas will also have to complete an application in the Student and Exchange Visitor Program (SEVIS). They will also need to enter their SEVIS ID in the DS-160 form, including the name and address of the university they will be attending. Similarly, those applying for work visas will need to provide information concerning the I-129 form filed by their employer to petition for travel. Note that it is important to print the confirmation page of the visa application, as it is required during the visa interview process.

After submitting the online application form, applicants have to pay a non-refundable application fee which depends on the particular type of visa selected. After the payment, applicants can schedule a visa interview with the U.S. Embassy or Consulate around them, where they will be asked for important information about their application and country-specific instructions.

After submitting an application and completing the interview, applicants will have to wait for the Embassy to process it and get back to them with the application result. Approximate waiting times depend on the visa type and the country of application.

Who is an Undocumented Immigrant?

The term undocumented immigrant is used to describe foreign nations in the U.S that lack the right to live there either due to entry into the country without inspection or staying beyond the validity period of their nonimmigrant visas or any other immigration document. Under the INA, being undocumented is an immigration violation that can lead to the deportation of an immigrant. Nonetheless, some undocumented immigrants have the right to remain in the U.S. These include persons applying for immigration relief such as asylum, Temporary Protected Status (TPS), and Deferred Action for Childhood Arrivals (DACA). Persons applying for adjustment to LPR status under the INA are also considered undocumented until the application is approved. 

According to statistics provided by the U.S Department of Homeland Security, there were around 11.4 million unauthorized immigrants living in the U.S in 2018.

What is the Difference Between an Undocumented Immigrant and an Illegal Alien?

Theoretically, the terms illegal alien and undocumented immigrants are not different, as they both refer to people who may not be able to lawful stay in the U.S due to a lack of valid immigration documents. However, the term illegal alien is not a technical one and it is not used in U.S immigration laws. It is considered insulting and derogatory to undocumented persons. As such, attorneys and many other professionals typically subscribe to the use of the term undocumented immigrants instead. In fact, the recent immigration bill sent by President Joe Biden to the Senate seeks to replace all mention of the word alien in U.S. immigration laws with the word noncitizen.

What Can You do Undocumented?

U.S. immigration laws offer several opportunities for undocumented immigrants to legalize their stay in the country. This includes:

  • Applying for residency or citizenship based on qualifying military service: This opportunity applies only to persons who served in the U.S military during certain international wars or conflicts. The person must have been enlisted while physically present in a U.S territory, including the Canal Zone, American Samoa, Swains Island, or a noncommercial U.S. ship.

  • Applying for adjustment of status: an immediate relative of a U.S citizen can apply to become an LPR while undocumented so far as entry into the country was through legal means. 

  • Requesting a cancellation of removal when brought before an Immigration Court: Once granted, the person can avoid deportation and can be granted a green card subsequently. However, persons making such a request must prove to the court that:

    • They have been physically present in the country for at least ten years and have been of good moral character during the period.
    • Their removal would cause unusual hardship to their parents, spouses, or children that are citizens of the U.S or lawful permanent residents. 
    • They have not committed any crime or immigration violation that can cause their disqualification from cancellation.

  • Applying for refugee status: This status applies to persons that have been prosecuted or have a well-founded fear of prosecution in their home country or place of permanent residence because of their race, religion, nationality, political opinion, or membership in a particular social group. A refugee can live and work legally in the U.S. Application for the status must be made within a year of entry into the country. Persons with refugee status can apply for permanent residence a year after approval and for citizenship four years after.

  • Applying for temporary protected status (TPS): This option is available for people that came into the U.S from countries that have or recently had a civil war, environmental disaster, or any other critical situation making it unsafe for them to return at the moment. TPS can allow a person up to 18 months. The person is also able to obtain a work permit. The USCIS website provides a list of countries whose citizens are currently eligible for TPS.

  • Applying for Deferred Action for Childhood Arrivals (DACA): This U.S. policy grants undocumented persons brought into the country as children protection from deportation for a two-year renewable period. Beneficiaries of this arrangement are eligible for a work permit in the U.S.

It is important to note that while there are other options like work and student visas, in most instances, being an undocumented immigrant may affect the success of the application. Additionally, the application for such kinds of visas requires an interview with a consular officer in the applicant’s home country. This makes it even harder to gain legal status through such visas. 

However, in Texas, pursuant to House Bill 1403, undocumented immigrant students are considered residents of the state for the purpose of tuition in colleges and universities. Also, certain labor law protections may apply to employed persons irrespective of their immigration status.

Can an Undocumented Immigrant Get a Job in the United States?

Section 1324 of INA prohibits employers from hiring immigrants that lack the authorization to work in the U.S. However, despite this, several businesses all over the country still hire undocumented persons. As of 2017, there were over seven million undocumented immigrants in the U.S workforce. 

What are the Risks of Working as an Undocumented Immigrant?

Working as an undocumented immigrant in the U.S  carries severe consequences for both the employer and employee.  Undocumented Immigrants caught working can be deported and barred from returning to the U.S for up to ten years. 

Furthermore, Section 1324a of the INA requires employers to verify the identity and employment authorization of individuals they hire, using Form I-9. The provision also forbids employers from knowingly hiring or recruiting immigrants without permission to work in the U.S. Such action can attract civil and criminal penalties that increase with violations. The civil penalties begin at $375 per unauthorized employee for the first offense, while third and subsequent offenses may attract a maximum of $1,600 per worker. Employers found to have the pattern and practice of hiring unauthorized workers, face fines of up to $3,000 per person, which may include jail time of up to six months. However, it is a defense to the allegation that the employer complied with the requirements of Form I-9 in good faith. 

Besides the consequences specified under the law, employers found hiring undocumented persons faces damage to their business reputation and having to replace undocumented workers, who may hold critical roles, hastily. 

In 2020, a North Texas construction company was mandated to pay the U.S. government $3 million under a non-prosecution agreement for participating in a scheme to employ undocumented persons illegally. An identical case occurred in 2018 when a Texas waste management company agreed to forfeit $5.5 Million for a similar violation. 

Can I Still Find Work as an Undocumented Immigrant?

Although working as an undocumented immigrant in the U.S is illegal and carries multiple risks for both the immigrant and the employer, it is not entirely impossible to find something doing as an undocumented immigrant. 

Finding work as an undocumented immigrant can be less tasking in big cities. Considering that more people live there, there are also more immigrants. As such, there is a high probability of finding work opportunities. It is also a good idea to look out for small businesses like factories, stores, and restaurants. It is possible to find an opening with them. Finally, undocumented persons can also consider getting temporary freelance employment, as businesses are not obligated to confirm the immigration status of independent contractors before working with them. However, a business would be liable if they knew of someone's undocumented status and still proceeded to contract them. 

Nonetheless, as an undocumented person, any work option is temporary and not sustainable, considering that any form of employment or work in the U.S requires a person to hold a work permit. Therefore, the ultimate goal is to get legal status as soon as possible. Interested persons can get professional guidance on legalizing and applying for a work permit in the U.S. by consulting a competent immigration attorney. 

What is an Employment Authorization Document (EAD)?

An Employment Authorization Document (EAD), a work permit or Form I-766, is an official document issued by the USCIS permitting a foreigner to work in the United States legally. Classes of immigrants that require this document to work in the U.S include:

  • Refugees and holders of U Visas
  • Those with a pending application for permanent residence and asylum
  • Those that enter the country with nonimmigrant visas that do not permit them to work without the authorization of the USCIS, such as F-1 or M-1 student visas.

Permanent residents or holders of green cards do not require work permits. The same applies to persons that have nonimmigrant visas entitling them to work for a particular employer—for example, an H-1B, L-1B, O, or P visa.

To apply for an EAD, interested persons are to complete the I-765, Application for Employment Authorization, and file it at the location provided for their eligibility category. Applicants also have the option to file the form online. Depending on their category, applicants may be required to pay a filing fee of $410 and a biometric fee of $85. Payment can be made through check, money order, or using a credit card. It is also important to note that the USCIS provides special instructions for application by each category of eligible immigrants. 

After an applicant files the form and pays relevant fees, the USCIS may require the person to appear for an interview where certain questions about the application and the immigrant’s status will be asked. Also, note that the length of work merit varies based on the applicant's immigration status or type of visa. However, most EADs are valid for one year. It takes the USCIS an average of five to seven months to process a work permit application.

How Can an Immigration Law Firm Help Me if I Want to Work in Texas?

As an immigrant, trying to get a job in Texas can be complex, especially while being undocumented. This is because employers are prohibited under federal laws from recruiting foreigners who lack the authorization to work in the country. The best way to address this situation is to seek professional legal assistance from a Texas immigration law attorney. Some essential services an attorney can provide include:

  • Guidance on how to apply for a work permit
  • Examining possible options on how to legalize one's stay, considering the particular situation
  • Determining what category of visa or immigration status is required in the particular case
  • Representation in removal proceedings.