Under United States immigration laws, in general, people have the right to be present in the United States if they were born here, they are a naturalized citizen, they are a lawful permanent resident, they are a lawful immigrant, or they are lawful non-immigrant.
Someone who is present in the United States but is not a citizen, a lawful permanent resident, an immigrant or non-immigrant in lawful status is typically called an “illegal alien”. The United States Department of Homeland Security enforces the country’s immigration laws, in part, by a) locating, detaining and removing people who do not have a legal basis to be present in the U.S., and b) adjudicating applications for foreigners to obtain citizenship, permanent resident status, or permission to visit, study, live or work in the U.S. as lawful immigrants or non-immigrants.
There are more than twenty types of temporary, non-immigrant visas available under certain circumstances. These visas allow people to enter into and remain in the United States for specific purposes such as visiting for pleasure or business, studying in school, managing or investing in a business, working at a professional level for a particular employer for a salary and period of time approved by the government, and in a number of other circumstances.
There are many more types of immigrant visas for foreigners who want to live permanently in the United States, which are also only available under certain circumstances. Typically, an immigrant visa petition is submitted by a close U.S. citizen relative (a spouse, parent, child or sibling) or a U.S. business, asking permission for the foreign relative or intended worker. After a family petition or employment based petition filed on behalf of a foreigner is approved, the beneficiary can apply for an “adjustment of status to permanent residency” with the U.S. Citizenship and Immigration Services if he or she is in the United States. If the beneficiary is not in the United States, he or she will typically need to apply for “consular processing” at the U.S. Department of State’s embassy or consular office in his or her country of origin. In some types of cases, a beneficiary of an approved immigrant petition can apply for an adjustment to permanent resident status or for consular processing right away, while in other types of cases the beneficiary must wait several years before they are eligible to apply for permanent resident status.
In certain circumstances, foreigners are permitted to become permanent residents without a U.S. sponsor, in cases where the foreigner a) has won the “green card lottery”, b) obtains approval of a “self-petition” as a battered spouse of a US citizen or permanent resident, c) is a person with proven “extraordinary ability” in the arts, sciences, business, education or athletics, d) will be subjected to persecution in their country of origin on the basis of race, sex, nationality, politics or some other protected class, and in other limited circumstances.
To approve visa petitions and immigration applications, the U.S. Citizenship and Immigration Services and the U.S. State Department require proof that the petitioners and applicants qualify for the visas. The type of proof required to be submitted will depend upon the type of visa or immigrant status that the foreigner seeks. For example, applicants for student visas must provide proof of acceptance to a college or university; birth certificates and marriage certificates are required to prove qualifying family relationships for family petitions; bank statements are often required to prove sufficient income to support oneself to extend a temporary stay as a visitor in which work is not authorized; a diploma or proof of work experience must be submitted to establish the qualifications of the beneficiary of a petition for a professional worker visa; and other types of documents are required to show that the foreigner have the background and/or relationships needed to obtain permission to be in the U.S. and engage in certain activities here.
The adverse consequences for failing to comply with U.S. Immigration laws are severe. People who are present in the U.S. for more than 6 months without lawful immigration status cannot obtain a visa, an extension of stay, or a change or status for 3 years. People who remain in the U.S. without lawful immigration status for more than one year cannot obtain lawful status for 10 years. There are exceptions for people who are the beneficiaries of family petitions filed by certain immediate U.S. citizen relatives, and for people who apply for and obtain waivers by showing that a U.S. citizen or permanent resident relative will suffer an exceptional hardship if the foreigner cannot remain here.
To determine whether you may qualify for a particular immigration status, and how to prepare and file an approvable petition or application, an attorney experienced with U.S. immigration laws can help to guide you through the legal process.
* Disclaimer: This article is intended for general informational purposes only, and should not be relied upon as legal advice. There is no lawyer and client relationship arising from this article. You may contact us to discuss your specific concerns if you are seeking legal advice, assistance or representation.