Family reunification, admitting immigrants with skills that are helpful to the US economy, protecting refugees, and encouraging diversity are all concepts that drive US immigration law. This information sheet covers the structure and operation of the legal immigration system in the United States. The Immigration and Nationality Act is the body of law that governs immigration policy in the United States (INA).
The INA permits the US to issue up to 675,000 permanent immigrant visas per year in a variety of categories. The INA enables U.S. citizens’ wives, parents, and children under the age of 21 to enter the nation at any time, in addition to the 675,000 visas.
Furthermore, the president is obligated to confer with Congress each year and determine a yearly number of refugees to be admitted to the US under the US Refugee Admissions Program.
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Immigration Based on Family Members
Immigration policy in the United States is guided by the idea of family reunification. U.S. citizens and LPRs can bring specific family members to the country under the family-based immigration system.
Immigrants having U.S. familial links are accepted as direct relatives of U.S. citizens or under the family preference system. A U.S. citizen or LPR sponsor must petition for an individual relative, demonstrate the validity of the connection, and provide evidence of the relationship’s legitimacy. The sponsor must meet minimum income requirements and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States or adjustment to LPR status within the United States to be admitted through the family-based immigration system.
Individual relatives must also meet certain eligibility requirements, which include undergoing a medical examination and receiving required vaccinations (including a COVID-19 vaccination12), a review of any immigration or criminal history.
Classifications of Temporary Visas
Employers can hire and petition foreign nationals for specific positions for a limited time under temporary employment-based visa categories. Most temporary workers are obligated to work for the company that petitioned for them and have limited job mobility.
There are about 20 different types of visas available for non-immigrant employees temporarily. Various P visas are for sports, entertainers, and skilled performers; L-1 visas are for intracompany transfers. R-1 visas are for religious workers, whereas different A visas are for diplomats. O-1 visas are for employees with extraordinary abilities, while other H visas are for workers with varying levels of competence. The visa categories differ in terms of qualifying conditions, duration, and whether or not employees are allowed to bring dependents with them, among other things.
If their status expires or their job is terminated, these employees must usually depart the United States. An employer may be able to sponsor a foreign national for permanent employment, depending on the type of job and the foreign person’s credentials. To be sponsored, a foreign national does not need to be employed by the company.
However, depending on the permanent immigration category sought and the foreign person’s present nonimmigrant status, the procedures to become an LPR may be completed while the foreign national continues to live and work in the United States.
The total number of permanent work-based immigrants is capped at 140,000 each year. This statistic includes immigrants, eligible spouses, and minor unmarried children, suggesting that the true number of employment-based immigrants is less than 140,000 each year.
The amount of visas available for allocation under the employment-based system is determined by adding any unused family preference immigrant numbers from the previous year to this cap. After then, the total number of visas available is divided into five priority groups.
Before filing a petition with US Citizenship and Immigration Services, the sponsor must first test the US labor market under terms and circumstances set by the Department of Labor, and the Secretary of Labor must certify that the petitioner’s application fulfills specific standards (USCIS). The sponsor must first submit a petition with USCIS for some categories, or the foreign national may self-petition.
Whether a visa number is considered instantaneously available determines how long it takes to file an adjustment of status application. The USCIS must authorize the immigrant petition for consular processing before the application for an immigrant visa may be filed. The foreign national must next apply for an immigrant visa at a U.S. embassy or consulate overseas or apply to modify status to LPR if they are currently in lawful status in the United States.
In addition to the numerical restrictions imposed on the various immigration preference categories, the INA also establishes a limit on the number of immigrants allowed to enter the US from any one nation.
Currently, no one group of permanent immigrants (including family and employment-based) from a single nation can account for more than 7% of total immigrants to the United States in a single fiscal year.
This is not a quota to ensure that certain nationalities account for 7% of all immigrants, but rather a cap to prevent any immigrant group from dominating immigration flows to the US.
The Visa for Diversity Program
The Immigration Act of 1990 established the Diversity Visa Program as a specialized conduit for immigrants from countries having low immigration rates to the United States. Each year, a computer-generated lottery distributes 55,000 visas to citizens of countries that have sent less than 50,000 immigrants to the United States in the preceding five years.
Up to 5,000 of the 55,000 are available for use under the Nicaraguan Adjustment and Central American Relief Act, which was established in 1997 to offer relief to some asylum applicants who applied before a particular date. As a result, the real annual diversity visa ceiling is reduced to 50,000. Originally, the initiative was designed to encourage Irish immigration (during the first three years of the program at least 40 percent of the visas were exclusively allocated to Irish immigrants).
Africans and Eastern Europeans in particular benefit from diversity visas, which are currently issued on a geographical basis. The Trump administration’s immigration prohibitions essentially shut down the Diversity Visa Program in 2020, leaving about 43,000 lottery winners without permits. Those who did not get visas before the end of the fiscal year lost their chance to move to the United States, forcing some of them to pursue lawsuits against the federal government in an attempt to obtain their visas.
Although the immigration prohibitions were later repealed by the Biden administration, the Diversity Visa Program has restarted at a snail’s pace. The State Department had only awarded 3,094 diversity visas for FY 2021 by the end of June 2021. Some lottery winners for the fiscal year 2021 have filed lawsuits requesting that the State Department release their visas before the fiscal year ends.
Temporary Protected Status (TPS)
People who are in the United States but unable to return home due to a “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed conflict” are given Temporary Protected Status (TPS).
TPS is awarded to a nation for six, twelve, or eighteen months, with the possibility of an extension if the country’s dangerous conditions remain. TPS does not guarantee LPR status or any other type of immigration status.
Postponed Enforced Departure (DED)
Deferred Enforced Departure (DED) protects people from deportation if their home nations are unstable, making it unsafe to return.
Unlike TPS, which is mandated by law, DED is up to the executive branch’s discretion. DED does not guarantee LPR status or any other type of immigration status.
Humanitarian parole permits some people to enter the United States even if they don’t satisfy the criteria of a refugee and aren’t eligible for other immigration options.
For urgent humanitarian reasons or considerable public benefit, parolees may be allowed for a limited time.
Asylees and Refugees
Refugees are allowed to the United States because they are unable to return to their home countries owing to a “well-founded fear of persecution” based on their race, social group membership, political opinion, religion, or national origin. Refugees seek admission from a nation other than the United States, usually a “transition country” that is not their native country.
The admission of refugees is based on several considerations, including the level of risk they face, membership in a group of particular concern to the US (as determined by the president and Congress each year), and whether or not they have family members in the US. The global cap is divided into limitations for each area of the globe.
The number of refugees accepted to the United States decreased dramatically after September 11, 2001. Persons already in the United States who seek protection based on the same five protected grounds as refugees do are eligible for asylum.
They can apply at a port of entry when they apply for admission or within a year after arriving in the US. One year after being admitted to the United States as a refugee or gaining asylum, refugees and asylees are eligible to become LPRs.
Citizenship in the United States
An individual must have had LPR status (a green card) for at least five years to qualify for U.S. citizenship through naturalization (or three years if he or she obtained the green card through a U.S.-citizen spouse or the Violence against Women Act, VAWA). Exemptions apply to members of the US military serving in a time of war or declared hostilities, for example.
Applicants seeking citizenship in the United States must be at least 18 years old, have lived in the nation continuously, have “excellent moral character,” pass English and US history and civics exams (with certain exceptions), and pay an application fee, among other things.