|General Immigration Concepts
Basic Immigration Concepts
Problems for Nonimmigrants
Basic Immigration Concepts
U.S. Worker: The U.S. immigration laws consider a U.S. worker to be any person who is a citizen or national of the United States, a Permanent Resident (Green Card holder), or a person granted asylum or refugee status.
Nonimmigrant: A nonimmigrant is a foreign national (also referred to as an "alien") who is coming to the United States for a specific purpose for a designated length of time. A nonimmigrant typically must intend to return to his or her home country upon completion of the stay in the United States. There are several classifications defining the purpose for which the foreign national is coming to the United States. Each nonimmigrant is assigned an alphanumeric classification/code. Currently, the letters "A" through "V" are used. The classification corresponds to the specific purpose the foreign national is coming to the United States. For example, an F-1 nonimmigrant is a Student and an F-2 nonimmigrant is the spouse or dependent child of the F-1 Student.
Immigrant: An immigrant is a foreign national (also referred to as an "alien") who intends to remain in the United States permanently a Permanent Resident. An immigrant typically holds a Green Card (now called a Permanent Resident Card) and is also known as a lawful Permanent Resident of the United States. Immigrants are not U.S. citizens. Most immigrants must hold status as a Permanent Resident for some time period before being eligible to apply for U.S. citizenship (Naturalization). Immigrant or Permanent Resident status can be lost or abandoned if the Permanent Resident fails to file a U.S. Income Tax Return; is convicted of a serious crime; or spends more than 180 consecutive days outside the United States and no longer intends to live permanently in the United States.
Dual Intent: The concept of dual intent arises when a foreign national enters the United States with a nonimmigrant visa (i.e., has the intention of returning to his or her home country after the completion of the visit in the United States) and simultaneously has the intention of pursuing permanent resident status (a Green Card) in the United States. Most nonimmigrant classifications do not permit dual intent.
Inspection: Every person coming into the United States must be inspected by the Department of Homeland Security, through Customs and Border Protection (or an agent acting on its behalf). The purpose of the inspection is to identify the person as well as determine the persons basis/reason to enter the United States and how long the person can be permitted to remain in the United States. If the inspection process is successful, the foreign national is admitted to the
U.S. - Visit: When a foreign national is applying to enter the United States a U.S. Customs & Border Protection Officer will inspect the individual (ask questions). Each person applying to enter the United States must present a valid passport, the nonimmigrant visa (as issued by the U.S. Consular Post, if applicable) and other applicable immigration documents (such as an original USCIS Notice of Action, Form I-20, or Form DS-2019). The U.S. Customs & Border Protection Officer will inquire why you are visiting the United States and you must respond truthfully. If you are admitted to the United States, the U.S. Customs & Border Protection Officer should issue to you a Form I-94 Arrival-Departure Record. After completing the Form I-94, Arrival-Departure Record and responding to questions by the U.S. Customs & Border Protection Officer, you will have your fingerprints scanned and a digital photograph taken. This biometric data (the fingerprints and photograph) are securely stored as part of your travel record. Although the Department of Homeland Security advises these enhanced procedures will add only seconds to overall processing time, it is recommended that ample time (one hour or more) be scheduled between any connecting airline flights.
Persons coming to the United States will meet a number of government officials who belong to the Department of Homeland Security (www.dhs.gov). The Department of Homeland Security was established as a response to the September 11, 2001 terrorist attack on America.
U.S. Citizenship & Immigration Services (USCIS): An agency of the U.S. Department of Homeland Security that processes and renders decisions on applications and petitions for immigration benefits such as immigrant petitions (Permanent Resident status) and nonimmigrant petitions. To process such applications and petitions, USCIS has regional service centers and local district offices. (www.uscis.gov)
U.S. Customs and Border Protection (CBP): An agency of the U.S. Department of Homeland Security, Border and Transportation Security Directorate, that enforces and controls the U.S. border and enforces the provisions of the U.S. immigration and nationality laws and regulations. A foreign national will be inspected (questioned by) a CBP Agent or Border Official at a Port-of-Entry when applying to enter the United States.
U.S. Immigration and Customs Enforcement (ICE): An agency of the U.S. Department of Homeland Security, Border and Transportation Security Directorate, that investigates violations of the criminal and administrative provisions of the U.S. immigration and nationality laws and regulations and other related provisions of the United States Code. It also enforces the provisions of these laws; is responsible for the detention and removal of persons not legally present in the United States; and collects immigration intelligence with an emphasis on national security. ICE is also working to support the Student Exchange Visitor Information System (SEVIS). (www.ice.gov.)
Department of State (DOS): The Consular Affairs division operates U.S. embassies and consular posts around the world which issue immigrant and nonimmigrant visas to foreign nationals desiring to come to the United States. (www.travel.state.gov)
Department of Labor (DOL): The DOL has limited authority with respect to immigration issues as delegated by the U.S. immigration and nationality laws. It can issue a labor certification based upon certification of an Application for Alien Employment Certification and can certify a Labor Condition Application for H-1B Nonimmigrants. The DOL also has authority to investigate matters within its jurisdiction. (www.doleta.gov)
Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC): The OSC is authorized to investigate and prosecute (i) unfair immigration related employment practices such as the knowing and intentional discrimination based on national origin or citizenship of an individual during the employment, recruitment, hiring, or termination and (ii) document abuse allegations/discrimination during the Form I-9, Employment Eligibility Verification process. The OSC enforces the antidiscrimination provisions of the Immigration Reform and Control Act of 1986.
Passport: A passport is a travel document issued by the country of which the individual is a citizen. The passport must be machine-readable and be valid for at least six (6) months beyond the period of admission to the United States or be renewable within that time period.
Visa: A visa is a travel document contained in a foreign national's passport issued by the Department of State (including a U.S. Consular Post) which permits the foreign national to apply to enter the United States for a particular purpose (classification). The foreign national must, in most instances, present an unexpired visa to the Customs & Border Inspector when applying to enter the United States. A visa is issued in the appropriate classification and may be valid for more than one application for entry to the United States. In some instances, to obtain a visa, some form of prior approval is needed. For instance, an F-1 Student needs a SEVIS Form I-20 issued by the school the foreign national will attend; a J-1 Exchange Visitor needs a Form DS-2019 Certification of Eligibility for Exchange Visitor issued by the Exchange Visitor Program Sponsor; an H-1B Specialty Occupation Worker needs a Notice of Action (Form I-797) approving the H-1B petition. Citizens of Canada are typically exempt (although some exceptions exist) from the requirement of possessing a visa to enter the United States. A visa is not required for citizens from designated countries who will enter the United States for 90 days or less under the Visa Waiver Program (ESTA).
Notice of Action (Form I-797): A Notice of Action (Form I-797) is a paper issued by U.S. Citizenship & Immigration Services typically rendering a decision on a petition or application filed with USCIS. If a request to change or extend nonimmigrant classification/status has been filed with and approved by USCIS, the Notice of Action (Form I-797) may contain a new Form I-94. The foreign national must present the Notice of Action (Form I-797), along with his or her passport and nonimmigrant visa (if required) to the Border Official when applying for admission to the United States..
Nonimmigrant Arrival-Departure Record (Form I-94): A Nonimmigrant Arrival-Departure Record (Form I-94) is a document issued by the Customs & Border Inspector to a nonimmigrant after the foreign national has been admitted to enter the United States. The document specifies (i) the date when and port of entry where the foreign national was admitted, (ii) the nonimmigrant classification/visa classification in which the foreign national was admitted, and (iii) how long the foreign national can remain in the United States. A foreign national must possess an unexpired Form I-94 in the appropriate nonimmigrant classification at all times while within the United States. A Nonimmigrant Arrival-Departure Record (Form I-94) is typically white-colored and has an 11-digit tracking number in the upper-left hand corner.
Employment Authorization Card (Form I-688B): An Employment Authorization Card (Form I-688B) is a document issued by USCIS which contains the individuals photograph and sometimes a fingerprint. The Employment Authorization Document states the period of time the individual is authorized to work and the legal basis for the employment authorization. Foreign nationals who may possess an Employment Authorization Document can include: an F-1 Student authorized for practical training, an L-2 Dependent Spouse of an Intracompany Transferee, a Dependent Spouse of an E-1 Treaty Trader or an E-2 Treaty Investor, or an applicant for Permanent Resident status.
Advance Parole (Form I-512): An Advance Parole is a travel document issued by USCIS to an applicant who has applied to adjust his or her status to lawful Permanent Resident in the United States. Generally a humanitarian or business travel reason is needed to obtain an Advance Parole.
Permanent Resident Card or Green Card (Form I-551): A Permanent Resident Card or Green Card (Form I-551) is issued by USCIS to a lawful Permanent Resident or Immigrant. Typically a Permanent Resident Card has an expiration date ten (10) years from the date issued as a way for USCIS to confirm the status of the Permanent Resident in the United States. Also, after ten (10) years, the individuals photograph on the Permanent Resident Card may need to be updated.
Reentry Permit: A Reentry Permit is a travel document issued by USCIS to a lawful Permanent Resident who notifies USCIS that he or she plans be remain outside the United States for more than 180 consecutive days and intends to maintain Permanent Resident status in the United States. The Reentry Permit allows the Permanent Resident to apply for admission to the United States upon returning from a visit abroad and replaces the need of obtaining a returning resident visa.
Social Security Card: A Social Security Card is issued by the Social Security Administration to a U.S. Citizen, lawful Permanent Resident, Refugee, Asylee, or other foreign national who is authorized to work in the United States. The Social Security Account Number is used when reporting income for U.S. Income Tax filings and when requesting benefits under the Social Security Act. A foreign national who is not authorized to work in the United States may apply for an Individual Taxpayer Identification Number (ITIN) from the Internal Revenue Service.
Problems for Nonimmigrants
The Arrival-Departure Record (Form I-94) determines how long a foreign national can remain in the United States and what activities (visit, study, employment) the foreign national can perform while in the United States. When a foreign national remains in the United States beyond the expiration date of the Form I-94, several problems can arise.
Automatic Cancellation of Nonimmigrant Visa: The nonimmigrant visa that the foreign national used for admission to the United States automatically becomes void and is cancelled when the foreign national remains in the United States beyond the expiration date of the Arrival-Departure Record (Form I-94). When the foreign national departs the United States, he or she must apply for and be issued a new nonimmigrant visa from a U.S. Consular Post in the foreign nationals home country before being eligible to apply for admission to the United States.
Unlawfully Present in the United States: When a foreign national remains in the United States beyond the expiration date of the Arrival-Departure Record (Form I-94), the foreign national becomes unlawfully present in the United States. A foreign national may also become unlawfully present in the United States when the foreign national arrives in the United States without being inspected, admitted or paroled, by an agent of the Department of Homeland Security.
The 3-Year/10-Year Bar for Unlawful Presence: If a foreign national departs the United States after being unlawfully present in the United States for more than 180 days but less than 365 days, the foreign national must then remain outside for three (3) years before being eligible to apply for admission to the United States. If a foreign national departs the United States after being unlawfully present in the United States for more than 365 days, the foreign national must then remain outside for ten (10) years before being eligible to apply for admission to the United States. These bars on the ability to return to the United States are imposed when the foreign national departs the United States after spending the requisite period "unlawfully present" in the United States. Some exceptions to the application of the bars do exist. A 120-day grace period for unlawful presence is acknowledged for a foreign national who (i) legally entered the United States, (ii) filed a nonfrivolous application or petition to change or extend status before the expiration of his or her period of stay (before the expiration date on the Form I-94), and (iii) such application or petition remains pending with USCIS, and (iv) the foreign national has not been employed without authorization. A foreign national who is the spouse, son or daughter of a U.S. citizen may apply for a waiver of the 3-year/10-year bar if "extreme hardship" can be shown.
Expedited Removal Without a Hearing: If a foreign national has done one of the following, he or she can be denied admission to the U.S. without a hearing:
Obtained a visa by fraud or willful misrepresentation.
Falsely claimed U.S. citizenship.
Received public benefits illegally.
Is an immigrant - who does not possess an unexpired Permanent Resident Card/Green Card, temporary evidence stamp, immigrant visa, Reentry Permit, or other valid entry document and an unexpired passport or identity document.
Is a nonimmigrant without a passport valid for six (6) months from the date of expiration of initial or contemplated period of stay or does not possess a valid nonimmigrant visa or border-crossing card.
By being removed without a hearing ("Expedited Removal"), the foreign national is subsequently barred from applying to enter the United States for five (5) years. Visa Waiver Program (ESTA) applicants are not subject to this application of expedited removal and the subsequent five-year bar. When faced with the possibility of Expedited Removal, a foreign national applying to enter the United States may withdraw his or her application for admission at the discretion of the Border Official. A foreign national facing "Expedited Removal" may request asylum if a credible fear of persecution showing a significant possibility of a viable asylum application can be established.
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