Immigration Law: An Overview for Every Practitioner

There is a common misconception that the practice of immigration law is limited to individuals seeking to immigrate to the United States via a U.S. citizen spouse or child. The reality, however, is that the practice of immigration law is much broader and complex, and it often crosses over into other practice areas such as employment law, business law, criminal law, family law, probate, and regulatory compliance, to name a few.

Immigration law can be generally divided into two categories of visas, immigrant and non-immigrant, and be further subdivided into family-based immigration, employment-based immigration, business-based immigration, and asylum. There are also many other categories such as traveling without a visa, deferred action programs, and temporary protected status programs, but these topics will be reserved for future blogs.

The U.S. Constitution is the main source of immigration law via its Commerce Clause, Naturalization Clause, Migration and Importation Clause, War Power, and other implied Constitutional powers. Although the Legislative Branch, through acts of Congress, has enacted the majority of immigration laws, including setting a cap on the number of visas within each category that are issued per fiscal year, the Executive Branch has also acted on immigration matters. As you may have guessed, this means that the authority of state governments to act in immigration-related matters is limited or preempted by the Supremacy Clause. Because immigration law is a creature of the federal government, an immigration practitioner may represent clients throughout the United States.

As the name implies, the first category of visas, immigrant visas, are available to those who seek to immigrate or live permanently in the United States. Immigration can be accomplished via a petition filed by a U.S. citizen or legal permanent resident (“green card” holder) petitioner, who is either a family member or an employer or, in certain cases, a foreign investor. In most circumstances, an immigrant who has been a legal permanent resident for at least five years, and is a person of good moral character, may apply to become a naturalized U.S. citizen. If the legal permanent resident is convicted of certain crimes, however, he/she may be placed in removal proceedings and ordered removed from the United States.

The second category of visas, non-immigrant visas, on the other hand, are available to those individuals who seek to visit the United States on a temporary basis for business, tourism, pleasure, or education purposes. Before approval, the intending non-immigrant must show strong ties to his home country, such as property and/or business ownership, education, and family, and agree to depart the United States upon expiration of his/her visa (unless extended or changed to a different visa).

For those of you who like numbers, and to provide some perspective, according to the U.S. Department of State, Bureau of Consular Affairs, in 2014, the United States issued a total of 437,370 immigrant visas and 9,932,480 non-immigrant visas.

A further category of immigration law is family-based immigration, which is reserved for those immigrants who have a family member, either a U.S. citizen or legal permanent resident, who can petition for them to immigrate to the United States. The “immediate relative” category is reserved for spouses, minor children, and parents of U.S. citizen, and there is no cap on the number of visas that may be issued in a given fiscal year. Keep in mind, however, that having a U.S. citizen or legal permanent relative does not give you an automatic right to immigration benefits. The intending immigrant must also meet a host of other requirements to be eligible for permanent residency, including having a financial sponsor. In addition, although a U.S. citizen child may petition for his/her parents, the child must be at least 21 years old before he/she may file a petition on behalf of his/her parents. The “family sponsored preference” categories are reserved for children over 21 years old and siblings of U.S. citizens, and for spouses and children (under and over 21 years old) of legal permanent residents. Legal permanent residents cannot petition for their parents or siblings.

Congress has set a cap of 480,000 annual visas under the family-sponsored category, less any visas issued under the immediate relative category, plus any unused employment-based visas. Because of this cap, intending immigrants in certain categories, such as siblings, must wait 15-25 years or more before they can apply to obtain an immigrant visa.

In addition to family-based immigration, employers or businesses can also be petitioners. Employment-based immigration allows a U.S. company or business to petition for a foreign worker or workers. Each year, thousands of foreign workers enter the U.S. to work in multiple occupations or employment categories, including artists, researches, cultural exchange participants, information technology specialists, religious workers, investors, scientists, athletes, nurses, agricultural workers, non-agricultural workers, entertainers, and others. As is the case with family-based immigration, having a U.S. employer petitioner alone does not guarantee visa approval as the employer and employee must meet other requirements. For instance, the petitioning employer must first test the labor market to ensure there are no qualified, willing, available U.S. workers to fill the permanent job opportunity. The intending employee/worker must also meet certain requirements and conditions, and he/she must depart the U.S. upon expiration of the period of authorized stay unless his/her stay is extended or changed to a different status.

Business-based immigration is reserved for those individuals or companies who wish to conduct business in the U.S. by establishing subsidiary companies or by sending foreign-qualified individuals to work at their existing U.S. subsidiaries, or for those who wish to invest in the U.S. economy by creating jobs for U.S. workers. There are a number of requirements and conditions that must be met depending on the type of visa sought by the foreign entity.

Lastly, asylum is available to those individuals in the United States (or those presenting themselves for asylum at the border) who have suffered or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, political opinion, and meet all other qualifications. An applicant must apply for asylum within one year of arrival to the United States. After one year in asylum status, the applicant may apply for permanent residency. The United States also offers refuge to those outside of the U.S. who are “of special humanitarian concern,” and have been persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group. Unlike asylum, a refugee, however, must receive a referral to the U.S. Refugee Admissions Program for consideration as refugee.

Keep in mind that the above list is limited to only the broad categories of immigration law. We look forward to exploring specific programs and topics in future blog posts.