U.S. immigration law (the U.S. Immigration and Nationality Act) provides a variety of legal pathways for people to seek to enter, and stay in the U.S.
Temporary Visas: We have a large variety of temporary visas – to visit – to study – and to work in the U.S.
Visitors: Visitors either come with a B-1/B-2 visitor visa (which is very hard to get for many people, because applicants must prove they have strong ties to their home countries and sufficient financial means to cover their stay in the States) to be approved for a visitor visa) OR they come pursuant to the ESTA program, which currently allows citizens of 38 countries the right to visit the United States for up to 90 days if they are approved to use that program.
Our immigration law presumes that every person seeking to come to the U.S. has immigrant intent – and it is up to each person to prove otherwise when applying for the visa. Hundreds of thousands of B-1/B-2 visa applicants are turned down around the world every year for failure to prove that they have strong enough ties to their home countries and/or strong enough finances to qualify for approval.
While this presumption of “immigrant” intent may often be the legitimate basis for some visa denials, it is actually often used as an easy excuse for consular officers to turn visa applicants down, and sometimes these denials are completely unjustified. Unfortunately this very strict presumption in the U.S. immigration law also is used as a weapon against the spouses and immediate family members of U.S. citizens and permanent residents.
Most people are surprised to learn that when someone overseas has married a U.S. citizen, they can’t just easily come to the U.S. In fact, if someone seeks to enter the U.S. as a visitor, instead of as an immigrant, explaining to the immigration officer that they are coming to be reunited with their U.S. citizen spouse, that by itself provides the officer with a legal justification to force them onto a return flight back to their home country. This is especially true if the non-U.S. spouse does not have strong ties to his/her home country and plans to return after their visit. It is against the law to enter the country as a visitor with the intent of filing for a green card soon after entry, even when married to a U.S. citizen.
Students: We have several different types of visas used for studying in the US –including the F-1 visa; the J-1 visa and the M-1 visa. As with the visitor visa, these visas require the applicants to prove both that they have strong ties to their home countries AND the financial means to cover the cost of their educational programs.
Temporary Workers: We also have a large variety of types of temporary work visas for different types of jobs – both skilled and unskilled. These all have different requirements, and are approved for different periods of time, depending on the visa category. A common requirement across the board is that the sponsoring organization or “petitioner” which files the visa petition with U.S. Citizenship and Immigration Services (USCIS) (or in some cases directly with a US Consulate abroad) must be a US employer – foreign workers are not permitted to sponsor themselves.
Permanent U.S. Status: U.S. Immigration law also provides a variety of pathways to a permanent status. Achieving “permanent resident” status (otherwise known as “green card” status) allows someone to live permanently in the U.S. Most people become U.S. permanent residents after coming to the U.S. on some type of temporary visa status (either work visa or student visa status), and applying for permanent resident status while in the U.S. But it is also possible for people outside the U.S. to pursue permanent resident status and wait outside the U.S. until the process is completed, and then arrive in the U.S. for the first time as an immigrant (with an immigrant [permanent] visa).
Pathways to Permanent Status: The pathways to permanent resident status include family sponsorship (based on an relationship to a U.S. citizen or permanent resident described in the immigration law); employment-based sponsorship (based on sponsorship by a U.S. employer or based on self-sponsorship in two exclusive immigration categories for people who have reached the very tops of their fields, or people who can establish to the satisfaction of the U.S. government that their work is in the national interest of the United States; refugee status (for those outside the U.S. who can prove that they have a well-founded fear of persecution in their home countries, on the basis of race, religion, membership in a particular social group, political opinion, religion, or national origin; asylum status (for those already inside the U.S. who can prove they have a well-founded fear of persecution on the basis of one or more of the above-referenced refugee criteria); diversity visa status – a visa lottery program which allows up to 55,000 immigrants from countries with low rates of immigration to the U.S. to apply for diversity visa (DV) status each year, if they can prove that they meet the requirements of having a high-school education or equivalent OR a minimum of two years of work experience in the prior five year period in a position that required at least two years of training or experience.
Most of these pathways have annual quotas or “caps” associated with them, which limits the number of applications that the U.S. government can approve in any given year. One exception to the annual quotas is for the immediate relatives of U.S. citizens, which include spouses, unmarried minor children (children under 21) of U.S. citizens and parents of U.S. citizens (if the U.S. citizen is 21 years old or older). These “immediate relative” applications for permanent residence status are not subject to any quotas or limits. For those who are subject to quotas, it is important to understand that the U.S. government’s fiscal year runs from October 1 -September 30. The U.S. makes new batches of visas available in each new fiscal year, beginning on October 1st of each year.
In addition to the numerical quotas that apply to most of the permanent statuses, U.S. law also places a limit on how many immigrants can come to the U.S. each year from any given country. In order to prevent any immigrant group from dominating the make-up of immigrant flows to the U.S., no group of immigrants from any particular country may make up more than 7% of the total number of people who immigrate to the U.S. in any single fiscal year.
U.S. Citizenship: Most people achieve U.S. citizenship by applying for naturalization although a small percentage are able to derive U.S. citizenship by operation of law (for example, because one or both of their parents are or U.S. citizens, or because they were minor children living with one or both parents when their parents became naturalized U.S. citizens.)
The most common way for people to acquire U.S. citizenship is transitioning from permanent resident status to citizenship status. A permanent resident over the age of 18 who has had his/her green card for at least five years may apply for naturalization. If the permanent resident is married to a U.S. citizen and has resided as a permanent resident with their spouse for at least three years, OR if the green card holder secured their green card on the basis of the Violence Against Women Act (VAWA), she can apply after only three years, instead of having to wait five years.
The naturalization process has strict requirements and rules associated with it that relate to proving residence and physical presence in the U.S. (in most cases a person can’t hold a green card and live abroad, and try to become a US citizen without having lived in the U.S.). Most importantly of all, to be approved for U.S. citizenship, applicants must be able to demonstrate they are persons of good moral character, and must be willing to swear an oath of allegiance to the United States.
There are a few other pathways to citizenship as well, including for certain members of the U.S. military, and others.