Legal Encyclopedia

Legal Encyclopedia

Ways to Stay in the U.S. Temporarily

U.S. Immigration Basics

When the U.S. Can Keep You Out

Who Qualifies for a Nonimmigrant (Temporary) Visa

Entering the U.S.: What to Expect at the Airport or Border

U.S. Immigration: Top Ten Tips for Avoiding Trouble

Applying for a Nonimmigrant (Temporary) Visa

Who Qualifies for a Green Card (Permanent Residence)

Sponsoring a Fiance or Spouse for a Green Card

Sponsoring a Family Member for a Green Card

The Visa Petition: The First Step for Family and Employment Green Cards

Sponsoring a Worker for a Green Card: Employer's Tasks



U.S. Immigration Basics

Republished with Permission © 2009 Nolo.

Whether you plan to come to the United States for a short visit or a permanent stay, your first step is probably to apply for a visa.

Many people think they can show up at a U.S. embassy or border post, describe why they’d make a good addition to U.S. society, and be welcomed in. Unfortunately, this is the exact opposite of how the U.S. immigration system works.

Instead, people who want to come to the U.S., whether temporarily or permanently, must determine whether they fit into eligibility categories for either "permanent residence" (a green card) or for a temporary stay ("nonimmigrant visa").

Then they must submit an application -- in fact, often a series of applications -- to one or more of the U.S. agencies responsible for carrying out the immigration laws. These include U.S. Citizenship and Immigration Services (USCIS), which has offices across the United States, and the U.S. Department of State (DOS), which manages consulates and embassies around the world.

What Permanent Residence (a Green Card) Is

If you want to be able to make your permanent home in the United States, you'll need what is called "permanent residence," or a "green card." Green card holders can live and work in the U.S. and travel in and out, with very few restrictions (though they can't vote, and can be deported if they abuse their status).

Family members of U.S. citizens make up the largest number of green cards issued each year. Others are issued to investors and workers who have been petitioned by U.S. employers or have special skills. Still other categories have a humanitarian basis, such as refugee or political asylum status (which can lead to a green card), for people who are fleeing persecution.

What a Temporary (Nonimmigrant) Visa Is

People who want to come to the United States for a limited time need what is called a "nonimmigrant" visa. This lets them participate in specified activities (such as studying, visiting, or working) until their visa runs out. Students and businesspeople make up the largest groups of nonimmigrant visa holders. Nonimmigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the U.S. workforce.

Exception: Visa Waiver Program

A visa is not necessary for short-term visitors from one of the Visa Waiver Program countries listed at http://travel.state.gov. You can come to the U.S. for up to 90 days for business or pleasure purposes if you're from one of these countries. You will, however, need to present a machine-readable passport. Also, beware: The ease of your entry is balanced by the ease with which you can be kicked out -- you automatically give up many rights and benefits when traveling without a visa.

To enter on a visa waiver, simply present yourself, your passport, and your ticket home to the officers you'll meet upon your U.S. arrival. If you come by land through Canada or Mexico, you'll also be asked for proof of sufficient funds to pay for your stay.

Applying for Immigration Rights

After figuring out what type of visa or green card you’re eligible for, you'll need to figure out how to get it. Most people (with the occasional exception of Mexicans and Canadians or those traveling with a visa waiver) must obtain a visa at a U.S. consulate before departing for the United States. If you’re already in the United States legally, you may be able to apply to "adjust" your status to permanent resident, or "change" your status to another type of visa.

Where to Find the U.S. Immigration Laws

Your possibilities for a visa or green card are set out under U.S. federal law. Being "federal," the law is the same across the United States. If you want to read the U.S. immigration laws -- which very few people actually want to do -- they’re found in Title 8 of the U.S. Code, or in the Immigration and Nationality Act (I.N.A.) In addition, information on how USCIS intends to carry out these laws is found at Title 8 of the Code of Federal Regulations (C.F.R.). The DOS regulations are at Title 22 of the C.F.R. The CFR can be searched at the Government Printing Office website.

The trouble is that even lawyers have trouble researching the U.S. immigration laws -- they're considered to be the most convoluted and easily misunderstood portions of all U.S. law. But if you have a specific reference to a section that you'd like to read for yourself, by all means look it up, then seek professional help if you need it.

Your best bet for getting any professional help with your immigration situation is to hire an experienced immigration lawyer. Ask friends for referrals, go to the website of the American Immigration Lawyers Association (AILA), or go straight to Nolo’s Lawyer Directory for a list of immigration attorneys in your geographical area (click on the “Types of Cases” and “Work History” tabs to learn about a particular lawyer’s experience).

Whatever you do, don't go straight to USCIS for advice. The people who staff their front desk are not all well trained, and if they give you wrong information, they take no responsibility, even if it causes your deportation or destroys your chances of immigrating. This happens!

Many of these immigration laws are described in U.S. Immigration Made Easy, by Ilona Bray (Nolo). This book discusses how to obtain many different visas, including the K-1 visa for fiancés, the B-1 and B-2 business and tourist visas, the H-1B, H-2B, and H-3 visas for temporary specialty or agricultural workers, the L-1 visa for intracompany transferees, the E-1 and E-2 visas for treaty traders and investors, the F-1 and M-1 visas for students, the J-1 visa for exchange visitors and scholars, or the O, P, or R visas for temporary workers, and how to get a green card through a family member, through the Diversity Visa Lottery, or as an asylee or refugee.

The Risks of Lying to the U.S. Government

One of the worst things you can do to your chances of getting a visa or green card is to lie, either on paper or during an interview with a U.S. border or other immigration inspector. Lies can have both immediate consequences, such as not being able to enter the U.S., and long-term consequences, such as not being able to get a green card -- ever.

Example One:

Francois, a French citizen, applies at the U.S. embassy in Paris for a tourist visa. He fears he will not be allowed to enter the U.S. as a tourist if he reveals that he has a girlfriend in New York. He states in his application that he will be visiting various friends. When he arrives at JFK Airport in New York, an immigration inspector finds a letter in his luggage from his girlfriend, in which she says she is looking forward to his long visit. Francois is put on the next flight home, and not allowed to return for five years.

Example Two:

Assume that Francois's immigration inspector does not find the letter from his girlfriend and allows him to enter the country. After he arrives, Francois and his girlfriend decide to marry. He files an application for permanent residence with USCIS. It forwards his application to the U.S. consulate in Paris for review. This reveals that he lied about his plans. To obtain permanent residence, Francois will have to argue that USCIS should overlook his previous lie and allow him to stay. If he loses, he can be denied permanent residence and forced to leave the country.

Who Can Be Kept Out

No matter what eligibility category you fall into -- whether you’ve married a U.S. citizen, received a job offer, or been accepted to a school -- the U.S. has the right to say no. And not just because there’s something wrong with your application. The immigration law contains a list of things, like crimes and certain diseases, that makes someone "inadmissible." For more information, see When the U.S. Can Keep You Out.


When the U.S. Can Keep You Out

Republished with Permission © 2009 Nolo.

Learn why you may be denied entry to the United States and how to avoid being turned away.

For the protection of the United States, people with histories of criminal or terrorist activities, drug abuse, infectious medical problems, or certain other characteristics or behavior will never be allowed a visa, green card, or U.S. entry. In immigration law terms, these characteristics are known as the grounds of inadmissibility. Following is a summary list of the major categories of inadmissibility.

Major Grounds of Inadmissibility

Classes of Inadmissibility

Waivers Available?

People with communicable diseases like tuberculosis and AIDS

Yes

People with physical or mental disorders

Yes

Drug abusers or addicts

No

Drug traffickers

No

People without proper vaccinations

Yes

People with convictions for crimes involving moral turpitude

Yes

Prostitutes

Yes

People with multiple criminal convictions

Yes

Spies

No

Terrorists

No

Nazis

No

People likely to become dependent on welfare

No

Everyone who applies to enter or stay in the United States, no matter how long the person plans to be there or whether the person already has a green card, is checked to see whether he or she is inadmissible.

What Happens If You're Found Inadmissible

The various agencies handling your immigration-related applications may decide you are inadmissible any time you ask for permission to enter or stay in the United States. These agencies include the U.S. State Department and the Department of Homeland Security, through its subagencies Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service, or INS).

These agencies can use your inadmissibility to block you any time you try to cross the border, apply for a green card, or apply for any other type of visa or immigration status. If you're at a U.S. border when this occurs, you will be turned around and sent home. If you're in the United States, you will, if you have no other visa or status, be sent to immigration court for removal from the United States.

Even a permanent resident (green card holder) isn't safe from being found inadmissible. If a permanent resident departs the United States for more than 180 days, it's possible for him or her to be found inadmissible upon return. This situation might arise, for example, if the person had committed a crime, had developed tuberculosis, or had begun receiving public assistance since receiving the green card.

If you hold a green card, one way to avoid this problem is to apply for U.S. citizenship as soon as you're eligible. For more information on applying for citizenship, see Becoming a U.S. Citizen: A Guide to the Law, Exam, and Interview, by Ilona Bray, J.D. (Nolo).

Overcoming a Finding of Inadmissibility

Even if you fall into one of the categories of inadmissibility, you may not be absolutely barred from getting a green card or otherwise entering the United States. You may be able to get around the problem, for example if your illness can be cured or the doctor diagnosed you wrong, or the U.S. government made a mistake in your case and you aren't really inadmissible. If all of these fail, you may be able to apply for a waiver, meaning you ask the U.S. immigration authorities to overlook the problem and admit you anyway.

There are many technical factors that control whether you can overcome a finding of inadmissibility. For more on the grounds of inadmissibility and how to overcome them, see U.S. Immigration Made Easy, by Ilona Bray, J.D. (Nolo). You may ultimately need to hire a good immigration lawyer.


Who Qualifies for a Nonimmigrant (Temporary) Visa

Nonimmigrant visas, such as tourist and student visas, permit you to enter the U.S. for a short time.

If you're planning a short trip to the United States, you must, with certain exceptions, obtain a "nonimmigrant" (temporary) visa. Below we summarize who qualifies for the various types of visas. For details, including how to apply for a visa, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

Types of Nonimmigrant Visas

You must choose the specific purpose of your trip (such as tourism or going to school) and apply for a specialized visa that authorizes that activity and no other. Each type of nonimmigrant visa is identified by a letter-number combination. You may already be familiar with the more popular ones: B-2 (visitor), E-2 (investor), F-1 (student), and H-1B (specialty worker). See the chart below for a complete list of the most commonly used codes and descriptions.

Summary List of Nonimmigrant Visas

A-1. Ambassadors, public ministers, or career diplomats, and their spouses and children.

A-2. Other accredited officials or employees of foreign governments, and their spouses and children.

A-3. Personal attendants, servants, and employees of A-1 and A-2 visa holders, and their spouses and children.

B-1. Business visitors.

B-2. Visitors for pleasure or medical treatment.

C-1. Foreign travelers in immediate and continuous transit through the U.S.

D-1. Crew members who need to land temporarily in the U.S. and who will depart aboard the same ship or plane on which they arrived.

D-2. Crew members who need to land temporarily in the U.S. and who will depart aboard a different ship or plane than the one on which they arrived.

E-1. Treaty traders working for a U.S. trading company that does 50% or more of its business with the trader's home country, and their spouses and children.

E-2. Treaty investors working for a U.S. company with 50% or more of its investment capital coming from the investor's home country, and their spouses and children.

E-3. Australian professionals coming to the United States to perform services in a specialty occupation (similar to an H-1B, but with a separate allotment of 10,500 visas). Spouses and children may accompany the E-3 visa holder.

F-1. Academic or language students.

F-2. Spouses and children of F-1 visa holders.

F-3. Citizens or residents of Mexico or Canada commuting to the U.S. to attend an academic school.

G-1. Designated principal resident representatives of foreign governments coming to the U.S. to work for an international organization, and their spouses and children.

G-2. Other accredited representatives of foreign governments coming to the U.S. to work for an international organization, and their spouses and children.

G-3. Representatives of foreign governments and their immediate family members who would ordinarily qualify for G-1 or G-2 visas except that their governments are not members of an international organization.

G-4. Officers or employees of international organizations, and their spouses and children.

G-5. Attendants, servants, and personal employees of G-1 through G-4 visa holders, and their spouses and children.

H-1B. Persons working in specialty occupations requiring at least a bachelor's degree or its equivalent in on-the-job experience, and distinguished fashion models.

H-1C.Nurses who will work for up to three years in areas of the U.S. where health professionals are recognized as being in short supply.

H-2A. Temporary agricultural workers coming to the U.S. to fill positions for which a temporary shortage of American workers has been recognized by the U.S. Department of Agriculture.

H-2B. Temporary workers of various kinds coming to the U.S. to perform temporary jobs for which there is a shortage of available, qualified U.S. workers.

H-3. Temporary trainees coming for on-the-job training unavailable in their home countries.

H-4. Spouses and children of H-1, H-2, or H-3 visa holders.

I-1. Bona fide representatives of the foreign press coming to the U.S. to work solely in that capacity, and their spouses and children.

J-1. Exchange visitors coming to the U.S. to study, work, or train as part of an exchange program officially recognized by the U.S. Department of State.

J-2. Spouses and children of J-1 visa holders.

(continued on next page)

Summary List of Nonimmigrant Visas

(continued from previous page)

K-1. Fiancés or fiancées of U.S. citizens coming to the U.S. for the purpose of getting married.

K-2. Minor, unmarried children of K-1 visa holders.

K-3. Spouses of U.S. citizen petitioners awaiting USCIS approval of their immigrant visa petition and the availability of an immigrant visa.

K-4. Unmarried children of K-3 visa holders.

L-1. Intracompany transferees who work as managers, executives, or persons with specialized knowledge.

L-2. Spouses and children of L-1 visa holders.

M-1. Vocational or other nonacademic students, other than language students.

M-2. Spouses and children of M-1 visa holders.

M-3. Citizens or residents of Mexico or Canada commuting to the U.S. to attend vocational school.

N-8. Parents of certain special immigrants.

N-9. Children of certain special immigrants or N-9 visa holders.

NATO-1, NATO-2, NATO-3, NATO-4, and NATO-5. Representatives, officials, and experts coming to the U.S. under applicable provisions of the NATO Treaty, and their immediate family members.

NATO-6. Civilians accompanying military forces on missions authorized under the NATO Treaty, and their immediate family members.

NATO-7. Attendants, servants, or personal employees of NATO-1 through NATO-6 visas holders, and their immediate family members.

O-1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics.

O-2. Essential support staff of O-1 visa holders.

O-3. Spouses and children of O-1 and O-2 visa holders.

P-1. Internationally recognized athletes and entertainers, and their essential support staff.

P-2. Entertainers coming to perform in the U.S. through a government-recognized exchange program.

P-3. Artists and entertainers coming to the U.S. in a group to present culturally unique performances.

P-4. Spouses and children of P-1, P-2, and P-3 visa holders.

Q-1. Exchange visitors coming to the U.S. to participate in international cultural exchange programs.

Q-2. Participants in the Irish Peace Process Cultural and Training Program (Walsh visas)

Q-3. Spouses and children of Q-1 visa holders.

R-1. Ministers and other workers of recognized religions.

R-2. Spouses and children of R-1 visa holders.

S-5. People coming to the U.S. to supply information to about a criminal organization.

S-6. People coming to the U.S. to provide information about a terrorist organization.

T-1. Victims of trafficking in persons.

T-2, T-3. Spouses and children of victims of trafficking.

TN. Trade visas for Canadians and Mexicans.

U-1. People who have suffered "substantial physical or mental abuse" as a result of certain U.S. criminal violations including domestic violence and who are assisting law enforcement authorities.

U-2, U-3. Spouses and children of U-1 visa holders.

V. Spouses and children of U.S. lawful permanent resident petitioners who have already waited three years for the approval of their visa petition or for an immigrant visa to become available, so long as their visa petition was submitted on or before December 21, 2000.

Your next step is determining how and where to apply for your visa; for more information, see Nolo's article get the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

Limits on Activities in the U.S.

Your visa allows you to enter the United States and to engage in certain activities while you're there. For example, if you receive a student visa, you're allowed to study in the United States -- but not to work off campus (unless you seek special permission) and not to stay permanently.

How Long Your Visa Will Last

Just as nonimmigrant visas vary in purpose, they also vary as to how long they last. Each nonimmigrant visa is given an expiration date according to what the law allows. Most can also be extended a certain number of times.

An important caution: The expiration date on your visa does not indicate how long you can stay in the U.S. once you arrive. It indicates only the period of time during which you have the right to enter the United States using that visa. How long you can stay is shown by the date on your "I-94 card," which is a small white or green card you'll be given when you enter the country.

If your visa is "multiple entry," however, you can use it to enter the United States again, as soon as you like. If it's not multiple entry, you can use it only once.


Entering the U.S.: What to Expect at the Airport or Border

Entering the U.S. may not be easy, even when you have a valid visa in hand.

The first person you meet on arrival in the United States -- whether you come by air, land, or sea -- will be an officer of Customs and Border Protection, or CBP. The officer will inspect your passport and documents, looking for verification that you've been given permission to enter the U.S., as well as any information that might prevent you from doing so. Have all your visa paperwork ready.

CBP officers are trained to be skeptical. Security is their first concern, and you may encounter delays as your name is checked against various computer databases. The officers are also on the lookout for people who might be using a tourist or nonimmigrant visato gain entry to the United States for a permanent stay. Even if your visa and intentions are valid, if the officer finds a problem or believes you're lying, you can be refused entry at the border, returned to your home country, and prohibited from returning for five years.

Be Prepared for Questions

Here are the most likely questions you'll have to answer. However, the officer is free to ask you just about any question. You'll increase your chances of being treated with respect by remaining polite and calm.

Why are you visiting the United States? Your answer must match your visa. If, for example, you have a visitor visa but say that you're coming to find a job, you'll be put on the next flight or bus home. Your answer must also show that you don't plan to violate any U.S. laws.

Where will you be staying? The officer wants to know that you have clear plans for what you will be doing in the United States. If you have no previously arranged places to stay, the officer might question whether you should be allowed in.

Who will you be visiting? Again, the officer is looking to see that you have clear -- and legal -- plans.

How long will you be staying? The officer wants to know that you don't plan to stay longer than you should. Even if your visa says "multiple entry" or "one year," you may not be allowed to remain for that length of time -- the little I-94 card you're given by the officer will tell you the date by which you must leave.

How much money are you bringing? The officer wants to know that you will be able to cover your expenses in the United States.

Have you visited the United States before, and if so, did you remain longer than you were supposed to? If you have previously stayed in the United States for six months longer than you were allowed, you are not eligible to come to the United States again without special permission (unless you've waited outside the United States for at least three years). If your overstay lasted a full year, you're expected to remain outside the U.S. for ten years before trying to return.

How often do you come to the United States? The officer is looking to see whether you are using nonimmigrant visas as a way of living in the United States -- in which case you'll be accused of misusing your visa and be denied entry.

Know Your (Lack of) Rights

Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process. You cannot have a lawyer represent you when you attempt to enter the U.S., nor are you allowed to call one if problems occur during your interrogation. Your bags can be searched without your permission, and CBP officials can ask you almost any question.

Only in rare cases, such as if you feared persecution in your home country, will you be allowed to appear before an immigration judge to prove that you should be allowed into the United States.

Be Prepared for a Luggage Search

The border official may also check your suitcases and personal possessions, so:

Make sure nothing that you bring appears to contradict your visa status. If you are coming as a tourist, don't bring along a book on how to immigrate to the United States or a stack of résumés. You might have these things simply because you have future plans to apply for immigration, but the CBP won't see it that way.

Do not bring illegal or questionable items. It may be legal in your country to carry a firearm (a gun), but it is not legal to bring it into the United States -- and if you have one in your luggage, it could lead to your immediate removal. Make sure you are not carrying other illegal or questionable items, such as illegal drugs, pornography, or plants, fruits, and animals of types or species that are not allowed into the United States.

And for details on getting a visa, understanding the privileges and responsibilities it comes with, and successfully entering the United States, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).


U.S. Immigration: Top Ten Tips for Avoiding Trouble

by Ilona Bray

Keep your status secure and your visa and green card applications moving along smoothly by following these immigration tips.

  1. Plan for delays. If you are in the United States and your work permit or status needs to be renewed, realize that U.S. Citizenship and Immigration Services (USCIS, formerly called the INS) is extremely backed up. Cope by turning in your application far in advance. This is particularly important if your legal status has an expiration date on it. If you fall out of status, the immigration authorities could arrest you.
  2. Consider U.S. citizenship. If you have a green card, file for U.S. citizenship as soon as legally possible. This will not only protect you from deportation, but will also help you get a more secure status for your close family members. Most people have to wait five years after their green card approval before applying, but some people can apply sooner. For more information, see the USCIS website at www.uscis.gov or the book Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview, by Ilona Bray (Nolo).
  3. Avoid summary removal. When arriving in the U.S. from overseas, be ready to convince the border official that you deserve your entry visa. These officials have a lot of power and they can send you back if they think you are a security risk or that you lied in order to get the visa. Tourists should be careful not to pack anything that looks like they're planning a permanent stay, such as a résumé or a wedding dress.
  4. Notify USCIS of address changes. If you're spending more than 30 days in the U.S., you must notify USCIS of your changes of address, within ten days. You and every member of your family must send separate notifications. You can do so either by mailing in Form AR-11 (available on the USCIS website), or better yet, through USCIS's online change of address service. Also, be sure to send written word of your new address to every USCIS office that's handling an application of yours -- otherwise, the office might not hear of the change.
  5. File multiple visa petitions. If you plan to get a green card through a family member, see if more than one member of your family is eligible to submit the visa petition for you. For example, a brother and a sister who are U.S. citizens could both file for you, as could a U.S. citizen spouse or parent. That way if the waiting list in one category gets especially long, or if one person dies, you'll have another option.
  6. Don't be late. Be extremely careful to arrive on time for any scheduled appointment with the USCIS, a U.S. embassy or consulate, or the U.S. immigration court. Arriving late -- or not at all -- can result in months of delays at best, and deportation from the U.S. at worst.
  7. Avoid visa violations. Make sure you understand the fine print surrounding your visa, work permit, or green card, and follow the rules carefully. Violating even minor terms of your visa or green card -- for example, working while you're here as a tourist or helping to smuggle a family member over the border -- can result in your visa being canceled or you being deported. For more information on the various visas and green cards available, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).
  8. Copy and track paperwork. USCIS is famous for losing paperwork. Send all applications and other material by certified mail, with a return receipt, and keep a copy. They're not only your proof of filing, but may become the main copies in the USCIS files if the original is never found.
  9. Do your research. Be careful who you accept advice from. Rumors and friends can't be relied on -- everyone's legal situation is different. Even USCIS employees sometimes give out wrong advice, for which you pay the consequences. Do your own research where possible, and if necessary take your unanswered questions to an immigration attorney or accredited representative whose reputation you've checked out.
  10. Get help from above. If nothing else is working, contact your U.S. congressperson. They can usually make an inquiry for you, which often encourages the USCIS or consulate into taking appropriate action.