ankit
Is Immigration dying in the Land of Free, United States of America.
ankit khetarpal 24 May 2020

Is Immigration dying in the Land of Free, United States of America.

Life of immigrant from legal perspective.

                                                               Authored by Ankit Khetarpal,

                                                               Immigration Attorney,

                                                              

        

 

Law of Immigration is a weapon or tool introduced by nations to prevent others to come to their country and this weapon or tool is mechanized in such a manner that it is released slowly at the whims of the nation to sub-serve its interest and it enables them to permit only those persons to come to their land only if they are useful to them in any manner according to the needs of the nation such as:

a)    Such person or persons are highly skilled, educated, and possess knowledge unparallel to the existing knowledge of their country or when the knowledge available in their own country is scarce while the country needs plenty of knowledgeable persons in those fields. The objective being that when such persons come to their country, they will be a great help to their country, train their men in such fields, shall boost industry, research, invention, economy and provide lot of services to the nation which they are not having or they are not able to meet all their requirements.

b)    Such person’s sub-serves political interest of the nation they being enemy to their enemy, helpful to the nation being close to their friends, helpful in creating a group opposed to their political or nation’s opponent or victims or sufferers get protection on humanitarian ground.  Asylum besides others is one of the forms of permission granted in such cases.

c)    Such persons bring or invest funds, knowledge, invention, skill or any other form of investment and help the economy of the country and they also provide employment to the locals and further help the citizens and other locals of that nation.

d)    Such persons sub-serves the needs of the nation in areas in which they are having scarce availability of men, knowledge, resources, skills, research abilities, or even habits to do the work with great dedication and even work for longer hours and periods. Different ways and means are offered to them to come to their own country.

e)    Sometimes a nation because of habits of its people who are not prepared to do certain jobs lowly in nature or of specified types being ugly, difficult, cumbersome, demands extreme amount of labor, research or work, etc. encourage people from other boundaries to come to their boundaries to fill the gap.

f)      In order to help their citizens in the fields of their known and prescribed choices, they allow the foreign nationals to whom they have married, children of such marriages to enter U.S. and further to help its own citizens they permit them to sponsor their specified relatives and families in accordance with the prescribed laws in that regard.  

 

 

 

 

How USA has handled the problem of immigration

Like all other countries US has also legislated in handling the problem of immigration in their country.  It has barred the entry of all persons other than their citizens to United State of America unless such persons are permitted in accordance with the system created by the United States of America or in other words such persons hold visa to enter to their country. Visa is conferred both to immigrants and non-immigrants as per the law of the United States.  A non-immigrant is a foreign national seeking to enter the United States on a temporary basis for tourism, business, medical treatment or certain types of other temporary works. An immigrant is a foreign national one who intends to come to United States of America on permanent basis. Even the temporary visas are preceded by permanent visas in some cases. 

U.S. Constitution conferred exclusive right on the Congress to legislate in respect of immigration and areas related to the same.  The first legislation in this area passed was the Naturalization Act, 1790 and thereafter from time to time many amendments have been made in the said law and new legislations have been enacted from time to time including Immigration Acts and presently the principal Act which holds the substantial field of law relating immigration is the Immigration and Nationality Act (INA).

Principally, three federal agencies were given the task of administering and enforcing immigration laws of United States. U.S. Citizenship and Immigration Services (USCIS) takes up and deals with applications for legal immigration. Immigration and Customs Enforcement (ICE) investigates the violations of the immigration laws and takes up the task of prosecuting offenders. Responsibility to keep the borders secure has been vested with Customs and Border Protection (CBP). The said agencies are part of the Department of Homeland Security. Violation of the duties conferred on different agencies and the rights of the applicants and convicting the guilty are taken care of by the Federal and other Courts including directing to grant immigration to those who are entitled to and when the said Agencies failed to grant the same.

 
Permanent Residency, Conditional Residency and Citizenship

For seeking immigration to United Stated, individuals are required to submit a number of detailed applications to the United States Citizenship and Immigration Services. Those who qualify can successfully obtain temporary immigrant visa, conditional residency or get direct or as a follow up lawful permanent residency (a green card), and ultimate citizenship on complying with the requirements for the same. The law provides various routes to gain permanent residency which inter alia include employment to workers, making investments and creating employment, by being refugees or asylees, family-based immigration etc. To gain such status one has to undergo various complicated procedures under immigration laws of U.S. 

Employment-Based Immigration

Persons possessing various defined extraordinary or exceptional abilities, advanced degrees, skills, specialized knowledge, having requisite experience in certain defined areas, professors or researchers, multinational executives, defined quality of skilled workers or professionals, other persons who perform jobs for which qualified or competent persons are not available in U.S., if intends to come to U.S. can apply during the period the window for such application is made open to them for seeking immigrant visa to U.S.  Such persons have to meet all requirements of the application as prescribed and pay the requisite fee fixed for the purpose, U.S. can grant permanent or temporary visa to such applicants up to or short of the permitted limits.

Various Temporary Visa Classifications

Generally, initially Temporary employment-based visa is granted to various individuals whose applications are allowed within the permitted limits. Under this category, U.S. permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited rights to change jobs. This category is known as Visas for temporary nonimmigrant workers.

There are numerous categories of temporary nonimmigrants works and such categories keep on changing from time to time.  Such categories include:

1)    L-1 visas relate to visas for intracompany transfers.

2)    H1b Visas relate to both highly-skilled and lesser-skilled workers possessing various degrees and qualifications. H Visas have further various sub categories.  

3)    Q-1 Visas relate to workers of extraordinary or exceptional abilities.

4)    P Visas relate to athletes, sportspersons, persons from entertainment field and other skilled performers.

5)    A Visas of different category relate to diplomatic employees.

6)    R-1 Visas relate to different religious workers.

All such foreign national must comply with all other requirements specified for different categories or classifications.  Beyond the number of visas permitted for each year, no visa can be granted. Such Visas can be for different periods. In addition, the applicants must conform to all other conditions laid down in the law of immigration. Despite fulfilling those qualifications, still the discretion is vested with the Authorities concerned to grant or refuse Visa to different applicants. In certain categories dependents are also permitted subject to their applications and nothing is considered objectionable against them as per the standards laid down for them. Generally, the immigrant must leave the U.S. if their status is terminated either prematurely or by the efflux the period for which it is granted. However, depending on the type of job and alien’s qualification, the alien may be permitted to complete the steps to become lawful permanent resident while continuing to live and work in the U.S. or otherwise.

For permanent immigration, numerical limit is prescribed every year which may include permanent resident, their eligible spouses and minor unmarried children.  This number varies year to year. These Visas are divided into five preference categories.  In some cases, the terms and conditions laid down by the Department of Labor and Secretary of Labor must also be followed.  

For some categories, the sponsor’s first step is to file a petition with USCIS or the foreign national may self-petition.

The final step is with the alien’s application for an immigrant visa at a U.S. Embassy or Consulate abroad or for adjustment of status to LPR if in lawful status in the United States. For consular processing, the immigrant visa application cannot be filed until after USCIS approves the immigrant petition. The number for each category of Visa may be fixed to be different from time to time by the U.S. Authorities.

 

CONDITIONAL PERMANENT RESIDENT

A foreign national may apply for conditional lawful permanent resident status on the basis of qualifying genuine marriage to a LPR or a citizen. Their children can also similarly petition. Such conditions may be removed by moving a joint petition within two years of such conditional status. Such conditional LPR status may be lost if within two years they failed to file a joint petition to remove the conditional status or failing to appear for the requisite interview or if there is an affirmative termination prior to the expiration of two years, marriage is found to be fraudulent or when there is adjudication and denial of joint petition. However, this right is also lost in case of divorce unless the waiver is obtained for being causing undue hardship or for being battered and in such a case without other spouse such a self-petition can be moved as a VAWA self-petition by complying such requirement for such cases.    

 

REFUGEE/ASYLEE A FORM OF SEEKING LAWFUL PERMANENT RESIDENT STATUS

Certain categories of individuals, who are not a security threat or risk to the U.S. or is not a perpetrator of persecution, and he  has well founded fear of persecution on the basis of religion, race, nationality, membership in a specified particular social group or political opinion if he is retuned to the home country or the country of his last permanent residence and further such an individual has not committed the certain specified categories of crime can seek permanent resident status in the category of as refugee/asylee. A person in the U.S. can generally apply for asylum within one year of admission. Sometimes later for showing good reason, such application may be entertained later. Once, the foreign national is admitted, he will be allowed to stay permanently in U.S. till they are expelled from the U.S. on their becoming safety risk or if they are fall in the category of prescribed cases for loss of status or if found that they have got the said status fraudulently.  A child of the refugee/asylee, if accompanying or following him, may also be admitted to the said status.  They also can apply for LPR after one year by taking necessary steps in that regard if the foreign national is admissible.  Sometimes, the Attorney Journal may waive the grounds for inadmissibility with some exceptions for humanitarian grounds or for preserving family unity.

 

OTHER NON-IMMIGRANT TEMPORARY VISAS INCLUDING VICTIMS OF TRAFICKING IN PERSONS OR CRIME VICTIM OF WITNESSES.

Students, vacationers, certain classes of temporary workers and specialized categories foreign nationals on the expiry of their temporary visa status are also considered in certain situations as eligible to seek temporary permanent visa on taking certain permitted actions.

Victims, foreign nationals if present in the United States as a result of severe form of trafficking of persons, and when they will suffer extreme hardship are also entitled to seek T Visa by making a reasonable request for assistance in the investigation or prosecution of traffickers. Their participation in such assistance is not mandatory if they are below 18 years of age or with some exceptions when they are undergoing physical or psychological trauma.

A person under the age of 18 when induced to perform a commercial sex is considered a victim of severe trafficking under Trafficking Victims Protection Act.

Similarly, undocumented foreign nationals who are in U.S. and are victims of severe physical or mental abuse as a result of being victim of criminal activity in respect of crimes like rape, torture, trafficking, domestic violence, sexual assault, incest, female genital mutilation, kidnapping, abduction, hostage, peonage, involuntary servitude, slave trade etc. as defined and is or likely to be of help to Federal, state or local investigation on having the certification of the defined authorities involved in prosecuting the criminal activity are entitled to U Visa.

A foreign national when married to a citizen of U.S. or LPR or a child of foreign national may petition himself/herself for LPR status without the co-operation of citizen or LPR spouse or parent when battered or subjected to extreme cruelty of the defined type by the citizen or LPR when the marriage is legal and in good faith and when possess a good moral character may also seek independently LPR status.

Family-Based Immigration                                    

Family unification is an important principle governing immigration policy. The family-based immigration category allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.

Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are:

·       spouses of U.S. citizens;

·       unmarried minor children of U.S. citizens (under 21-years-old); and

·       parents of U.S. citizens (petitioner must be at least 21-years-old to petition for a parent).

A limited number of visas are available every year under the family preference system, but prospective immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The preference system includes:

·       adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21-years-old to petition for a sibling), and

·       spouses and unmarried children (minor and adult) of LPRs.

In order to balance the overall number of immigrants arriving based on family relationships, Congress established a complicated system for calculating the available number of family preference visas for any given year. The number is determined by starting with 480,000 and then subtracting the number of immediate relative visas issued during the previous year and the number of aliens “paroled” into the U.S. during the previous year. Any unused employment preference immigrant numbers from the preceding year are then added to this sum to establish the number of visas that remain for allocation through the preference system. However, by law, the number of family-based visas allocated through the preference system may not be lower than 226,000. The number of immediate relatives often exceeds 250,000 in a given year and triggers the 226,000 minimum for preference visas. As a result, the total number of family-based visas often exceeds 480,000. 

In Fiscal Year (FY) 2017, family-based immigrants comprised 66 percent of all new LPRs in the United States.

The family-based immigration system is summarized in Table 1.

Table 1: Family-Based Immigration System

Category

U.S. Sponsor

Relationship

Numerical Limit

 

Immediate Relatives

 

U.S. Citizen adults

Spouses, unmarried minor children, and parents

 

Unlimited

Preference allocation 

1

U.S. citizen

Unmarried adult children

23,400*

2A

LPR

Spouses and minor children

87,900

2B

LPR

Unmarried adult children

26,300

3

U.S. citizen

Married adult children

23,400**

4

U.S. citizen

Brothers and Sisters

65,000***

* Plus any unused visas from the 4th preference.

** Plus any unused visas from 1st and 2nd preference.

***Plus any unused visas from the all other family-based preferences.

Worldwide level of family preference allocation: 480,000 minus visas issued to immediate relatives and parolees, plus unused employment-visas from previous fiscal year. Floor for preference categories: 226,000.

In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish ties and comply with the formalities accordingly.

U.S. citizens can sponsor family members who qualify as "immediate relatives." These include spouses, parents of a citizen 21 years or older, unmarried children under age 21, and children adopted before turning 16. The government does not limit the number of immediate relative visas approved each year. This means there is no waiting period, other than the time required to process the visa petition.

By contrast, petitions filed by citizens or permanent residents on behalf of more distant relatives are subject to annual quotas. The amount of time these family members must wait to come to the United States will depend on their preference category. Unmarried children age 21 or older are given the most preference. Brothers and sisters of adult citizens are given the least. For those in the lower preference categories, it can take years to obtain a visa.

 

INVESTMENT AND EMPLOYMENT BASED VISA (EB5)

The Employment-Based Fifth Preference (EB-5) immigrant visa category was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign nationals. In order to qualify, an EB-5 investor must invest minimum of defined amount for such purposes in a new commercial enterprise, which would create at least 10 full-time jobs for U.S. workers. EB-5 investments are divided into two categories: direct investment and regional center investment.

The initial EB-5 petition, Form I-526, must be submitted with documentation about the new commercial enterprise and documentation about the investor’s source of investment funds obtained through lawful means. He should further submit documents like personal tax returns, evidence identifying other sources of capital, foreign business registration records, defined documents relating to pending court case and administrative proceedings of the previous prescribed period.  The source of funds requirement for investors investing in a direct investment and regional center project are the same. However, USCIS can also ask for lawful path of funds being invested. If the funds were obtained from a third party, proof of funds from the third party must also be obtained.

USCIS requests a substantial amount of documentation to prove lawful source of funds. Although EB-5 regulations do not require investors to prove any amount beyond the investment capital, USCIS has requested investors to also prove lawful source of the administrative fees collected by projects. Many projects charge an administrative fee to cover operational costs and marketing expenses.

A lot of documentation is required for this field of investment and before filing any such application, matter should be got examined by an attorney practicing in the field of EB-5 visas.

After completing the requisite period of initial EB-5 status and after following the conditions laid for the same honestly during the period of EB-5 status, one can apply for LPR status on fulfilling conditions and submitting documentation prescribed in this regard.

U.S. Citizenship

In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for the requisite period in different categories and must otherwise fulfil all other requisites prescribed in this regard and lot of documentation is required in this regard. Various and different procedures are prescribed in this regard and certain qualifications have also been laid in that regard also.

 

Conclusion

U.S. immigration law has many complexities and confusions and it keeps on changing fast and new guidelines have been emerging almost every year and even during the year. All this shows that immigration is a diverse area of the law, and attorneys tend to specialize in particular types of cases. For example, an immigration attorney may limit his or her practice to EB-5 category, employment-based petitions, family-based category visa petitions, foreign adoptions, or deportation defense. Immigrants and their families should take it upon themselves to gain a preliminary understanding of the nature of their case, before going about the important task of finding an attorney. Each field is a separate field of specialization and it is advised that the applications of individuals should be handled by experts. Each category has been dealt briefly above and each such category has further ample dimensions, requisite requirements, different periods prescribed, have different quotas, need lot of documentation and if need be evidence may be required to be submitted.  All this is advised to be handled only by an expert.  For more details, kindly visit www.myusimmigrationattorney.com. or www.myincorporationhub.com

 

 

 

 

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