Immigration laws are the set of laws in the United States that regulate how a person from outside the United States may qualify for a visa, and under what circumstances that person can be deported. There are many different kinds of temporary and permanent visas in the United States. As such, it is important to have a thorough understanding immigration laws and how they can affect your entry and stay in the United States.
Importantly, immigrants who are already in the United States must abide by immigration laws. There is a large number of immigrants who reside legally in the United States on a green card or on a permanent visa. Even though the individuals with green cards or permanent visas may seek to become full citizens, they must avoid any activities that may bring about a deportation action until they do so.
What Is Legal Immigration?
Legal immigration refers to instances in which a non-citizen is allowed to be in the country legally under permanent resident status. In other words, the U.S. citizen is a green card holder. Permanent resident status may be granted to certain classes of persons who immigrate legally. Permanent resident status is considered to be the most important step that needs to be taken towards obtaining permanent U.S. citizenship.
It is important to note that most green card holders start off with a temporary visa, and then work towards having their residency status changed after being in the country for extended periods of time.
In general, proof of such permanent residency status is evidenced by the possession of a permanent resident card, also known as a green card. Permanent resident status may also refer to individuals who have entered the country under a conditional residency status, and have then had their status adjusted to that of a permanent resident. With permanent residency status an individual may work at any job legally in the United States, as well as own personal property.
Additionally, permanent residents do not have to return to their home countries after the expiration of a period of time, as long as their green card remains valid. Additionally, permanent residence status can result in being able to apply for U.S. citizenship.
Full United States citizenship is what gives an individual the full set of individual rights that the United States has to offer under its laws and Constitution. These rights include rights such as
- The right to vote;
- The right to petition for other family members to immigrate to the United States in order to become citizens as well; and
- The right to travel and live in other countries without losing the right to return back to the States.
How Do I Apply for Legal Immigration?
In order to obtain permanent residence status in the United States, an individual must first file an immigration petition with the United States Immigration Services, as well as meet other eligibility requirements. Importantly, there are different types of residencies, and the following are some examples of ways to legally obtain permanent residency status:
- Family Member Based Permanent Residency: Family members of U.S. citizens, or family members of permanent residents, may be able to apply for permanent residence status because of their relationship with their family member. The Immigration & Nationality Act, as well as the United States Citizenship and Immigration Services (“USCIS”), allows spouses, parents, and unmarried children younger than 21 years old of United States citizens to apply for permanent residency status;
- Employment-Based Permanent Residency: People who are hired for qualified positions, or who wish to start business ventures in the United States, may be eligible for a green card and granted permanent residency status after a certain period of time has passed. In special cases, such as with professional athletes, immigrants may be able to obtain permission to permanently work and reside in the United States;
- Fiancé(e) Visa: The fiancé(e) of a citizen or permanent resident is generally granted conditional resident status when entering the United States. After some time, they can apply to have the conditions removed in order to obtain permanent status by filing “Form I-129F, Petition For Alien Fiancé(e).” Individuals that file for status in this manner must also intend to marry the other individual within 90 days of entering the United States;
- Individuals Seeking Asylum and Refugees: People filing for permanent residency status that are seeking asylum can generally apply for permanent residency after one year. As such individuals are fleeing persecution or dangerous situations in their home country, they will be designated as refugees or asylees. It is important to note that the process of obtaining permanent residency status for refugees and asylees is different than for other groups; or
- Diversity Visa Lottery: The diversity visa lottery program allows immigrants to travel to the United States and then after a period of time apply for permanent residency status.
In addition to the above methods, some non United States residents who may be eligible to apply for an adjustment of status to that of a lawful permanent resident include:
- An immediate relative of a U.S. citizen, such as their spouse, their unmarried child who is under 21 years of age, or their parent who is 21 years of age or older;
- An immediate relative of a lawful permanent resident who meets the age requirements and is either a spouse, parent, or child;
- People admitted entry into the U.S who are either the fiancé or child of a fiancé of a U.S. citizen. It is important to note that the fiancé of a U.S. citizen may only file Form I-485 after they marry the U.S. citizen to whom they are currently engaged;
- The widow or widower of a U.S. citizen;
- Immigrant workers who are sponsored by U.S. employers, or qualify as an “alien entrepreneur;”
- Immigrants who meet the criteria to be deemed a “special immigrant,” such as religious workers, or those who have been living in the United States for at least one year as a refugee or asylee;
- Individuals who are victims of human trafficking or another similar qualifying crime;
- Individuals who have won the diversity visa lottery; and/or
- Individuals who fall into one of the other categories as listed in the instructions on Form I-485, which can be found on the USCIS website.
What Are The Legal Penalties For Illegal Immigration?
In the United States, illegal immigration is considered to be a serious criminal offense. Consequences for illegally immigrating include, but are not limited to:
- Removal (deportation) of the individual from the United States;
- Temporary or permanent loss of the individual’s residence status;
- A possible ban on an individual’s ability to re-enter the United States in the future. These bans can either be temporary or permanent For example, a first-time illegal immigration charge may result in the the immigrant being banned from re-entering the country for a number of years, such as five years. However, for repeat offenses, or a deportation that involves especially serious criminal activity, the individual may be permanently banned from entering the country; and
- Other various criminal consequences, such as criminal fines. Importantly, legal penalties also apply to individuals assisting in the illegal immigration, such as employers, family members, etc.
How Can I Appeal an Immigration Decision?
If your application or request has been denied by the U.S. Citizenship and Immigration Services (“USCIS”), you will be advised as to whether or not you have the opportunity to appeal their decision. Importantly, only the person who applied or submitted the request may appeal the decision by USCIS.
For example, if an employer submits a request for an employee work visa, and that request is denied, the employer can appeal, but the employee for whom the visa was requested cannot. There are certain immigration decisions that cannot be appealed, such as a denial of extension of stay or change of nonimmigrant status.
As far as the method for appealing, USCIS will provide instructions for submitting an appeal. Typically, these instructions will be attached to the immigration decision itself. After receiving the notice, individuals may pay a fee and file their appeal at the office that made the original decision. In that appeal, individuals will be able to submit an explanation of why they are appealing the original decision.
Once that immigration request is reviewed again, the individual will then be notified by the immigration authorities that:
- Their claim was overturned and USCIS ruled in their favor;
- The decision was upheld and USCIS ruled against them; or
- Their claim was sent back with further instructions to the office that made the original decision.
An individual may also submit a legal motion to reopen or a motion to reconsider with the office that denied their immigration request within 30 days of the date of the decision. When the motion is submitted, the individual appealing can ask to be present at the review to make an oral argument.
Importantly, if a motion to reopen is filed, there must be new facts, evidence, or affidavits to support the motion. If a motion to reconsider is filed, the individual must show that the original decision was based on an incorrect application of the law or USCIS rules to the facts of your case when it was originally decided.
Do I Need A Lawyer For Help With Appealing an Immigration Decision?
Because individuals are only permitted to file one appeal, it is in your best interest to consult with an experienced immigration lawyer prior to filing the appeal.
An experienced immigration attorney will be able to help you understand your legal rights and options regarding the appeal. Further, an attorney will also be able to draft the motions and file the evidence supporting your appeal, and represent you at any hearings involved in the appeals process.
