The U.S. Constitution confers U.S. citizenship upon persons born within the U.S., but also grants it to specific individuals born outside the U.S. The U.S. Congress determines who may be admitted into the U.S., who can acquire U.S. citizenship, and who can be expelled from the country. While Congress’ power is very broad, that does not mean that noncitizens seeking admission, or those already in the U.S., have no rights. Their legal rights depend on their particular immigration status. U.S. visas are issued only at U.S. Consulates and Embassies abroad once in possession of a visa. Extensions and changes of status are available only in the United States.

The U.S. immigration law defines noncitizens as persons who are not nationals or citizens of the U.S. and divides aliens into two main visa categories, namely: (1) immigrants, and (2) nonimmigrants. The law presumes that all noncitizens are immigrants, except those who can affirmatively show that they are bona fide nonimmigrants. Immigrants include persons who already have lawful permanent residency (“LPR”) status, persons in the process of applying for LPR status, undocumented persons, and those in the U.S. who are not in a nonimmigrant status. The notion is that immigrants enter the U.S. with the intention of remaining permanently. In contrast, nonimmigrants are presumed to come to the U.S. for a limited, temporary purpose.

Before further describing these two basic visa categories, it is important to mention the existing admissibility and deportability categories that apply to all noncitizens. Admissible noncitizens are those who may be legally admitted into the U.S., and deportable persons refer to persons who after admission or entry into the U.S., may be removed. In addition, while there are laws prohibiting the admission and requiring the removal of some noncitizens, there are also provisions allowing noncitizens to secure a waiver of these inadmissibility grounds, although, most waiver provisions are discretionary and the government is not required to grant them. More specifically, these waiver grounds may be divided into seven general categories:

(1) health-related (persons with communicable diseases of public health significance);

(2) economic (persons considered likely to become a public charge);

(3) criminal (persons who have committed crimes involving moral turpitude, or violations of state, federal or foreign laws related to controlled substances);

(4) security and foreign policy (such as terrorism);

(5) immigration violations (a broad range of violations preventing persons from gaining lawful admission);

(6) quasi-criminal behavior (restrictions based on moral grounds reflecting contemporary American values); and

(7) miscellaneous (such as persons who have made false claims of U.S. citizenship and thus became ineligible to gain U.S. citizenship).

While there is often a great deal of confusion between deportability and inadmissibility provisions, just remember that deportability applies to noncitizens who were in the U.S. and inadmissibility applies to those who are not in the country.

Immigrant Visas: Lawful Permanent Residence

U.S. law provides noncitizens with a way of obtaining long-term residency, a status giving them a right to remain and work here indefinitely. LPR status can be obtained by a noncitizen in several different ways, including:

(1) Family-based immigrant visa (persons with a close familial relationship with a U.S. citizen or an LPR);

(2) Employment-based immigrant visa (foreign workers, if they have unique skills, or are offered a job in the U.S. that will not adversely impact a U.S. worker);

(3) Asylees and refugees;

(4) Registry (includes persons who have been in the U.S. continuously for an extensive certain period of time and can show “good moral character”);

(5) Cancellation of removal (includes persons who have been in the U.S. illegally for over 10 years and whose removal would result in extreme and unusual hardship to close family who are U.S. citizens or LPRs);

(6) Diversity immigrant visas (applies to winners of an annual visa lottery who are nationals of certain designated countries); and

(7) Legalization and other special relief (person who may obtain LPR status through special congressional enactment through “legalization” for set groups of people or through private legislation).

Whether and how a person may obtain LPR status depends on the person’s immigration posture at the time the application is filed and whether the person is in the U.S. An LPR may live and work in the U.S. and travel in and out of the country, but is still subject to possible exclusion under U.S. immigration laws until the person becomes a U.S. citizen.

Nonimmigrant Visas: Temporary Admission to the United States

Given the law’s presumption that all persons coming to the U.S. intend to be immigrants wishing to stay here permanently, nonimmigrant visa applicants have a heavy burden to prove to consular officers abroad and U.S. Customs and Border Protection officers at the border that they will depart the U.S. after completing their journey. Also, there are no catch-all nonimmigrant visas and each applicant must establish that he or she qualifies under one of the specific nonimmigrant categories. Finally, each nonimmigrant visa may be obtained only by individuals meeting that category’s specific requirements and upon receiving the visa, each applicant must comply with all of that visa’s requirements for the duration of their U.S. stay.

The nonimmigrant visa categories can be organized into seven separate categories:

(1) tourism (B-1 and B-2);

(2) educational (F-1) (J-1) (M-1);

(3) special or family related (K and V visas);

(4) work or business (B-1, E, H, H-1B, H-2A, H-2B, H-3, I, L, O, P, Q, R, and TN visas);

(5) governmental or quasi-governmental (A and G visas);

(6) law-enforcement related visas (S, T, and U visas); and

(7) miscellaneous (C, D, NATO, and N visas).

A majority of the nonimmigrant visa categories allows beneficiaries to come to the U.S. with one’s immediate family under the same visa—a “derivative” visa. However, most categories do not allow the nonimmigrant or his/her family member to work while being here.

The nonimmigrant process can be a difficult one to achieve or maintain. The rules are not always clear, especially to the extent that nonimmigrants must navigate around the grounds of inadmissibility and deportability, while still maintaining a valid visa status and possibly extending their period of stay. Certain persons in lawful nonimmigrant status may transition to permanent residency through a process called “adjustment of status.” However, maintaining, properly changing, or adjusting status pose special challenges because U.S. immigration laws are very complex, often making it difficult to navigate the system without professional assistance and advice.

*This article is based on information available as of its publication and is not intended to be all-inclusive or to furnish advice in a particular case. We are not responsible for any changes in regulations that may occur subsequent to publication. Please feel free to contact our office for further information and advice.

Michael J. Wildes, is the Managing Partner of Wildes and Weinberg, P.C. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.

By Michael J. Wildes