How The System Works

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The U.S. immigration system is unique in the world and, for that reason, understanding of systems used in other countries does not translate well into an understanding of the U.S. system. As a nation made up entirely of immigrants (even "native Americans" immigrated here from Asia, the United States has a completely different perspective on immigration than that of any other country. Please keep this in mind when trying to make sense of the odd collection of laws that make up that which passes for U.S. immigration policy.

People physically present in the United States can be classified into two broad legal classifications: United States citizens and aliens.

U.S. Citizens

There are two general methods by which a person acquires United States citizenship: birth and naturalization. Some people, though birth in the United States, or by being born abroad to qualifying United States citizen parents, are U.S. citizens from the time they are born. All others must acquire citizenship through the naturalization process. A very common misconception is that an alien who marries a U.S. citizen automatically becomes a citizen. This is not true. Such a person must first become a lawful permanent resident, then wait at least three years, and apply for naturalization.

In addition to citizens, there are also United States nationals. These are individuals who live in certain U.S. overseas administrative areas. They are not United States citizens, but they have an unrestricted right to travel to and work in the United States. The number of U.S. nationals is very small.

 

Foreign nationals or aliens

An alien is any person who is not a citizen or national of the United States.

Persons who enter the United States illegally, or who violate the terms of their admission to the United States by working without authorization or by overstaying, are illegal aliens.

Persons who enter the U.S. lawfully for a temporary purpose are nonimmigrant aliens.

Persons who are admitted to the United States as lawful permanent residents ("green card" holders) are immigrant aliens.

Some aliens are permitted to live in the United States for humanitarian reasons because they would otherwise be subject to persecution in their home countries. These people are give asylum, refugee status, or temporary protected status ("TPS").

 

A quick overview

The following is intended to give readers a quick grasp of how the system works and how things tie together. All of the subjects discussed below will be discussed in considerably more detail in subsequent lessons. For now, just try to grasp the overall architecture of the system.

A United States citizen or lawful permanent resident may live anywhere in the U.S., work without the need for special authorization, and travel internationally without restrictions. In the case of lawful permanent residents ("LPRs" or "green card holders"), there are limits on how long they may live abroad before they are deemed to have abandoned their LPR status.

Nonimmigrant aliens are only permitted to come to the United States for a specific temporary purpose. There is no "general category" nonimmigrant visa that allows aliens to come to the U.S. for an indefinite period of time. Unlike citizens and LPRs, nonimmigrants may not work unless they have explicit work authorization which names a specific employer. There are no general work visas for nonimmigrants.

A nonimmigrant who comes to the U.S. as a tourist should not expect to be able to attend school or work. It is possible to change nonimmigrant status to another category, but the government always has a concern that such people did not make a full disclosure when they applied for their tourist visas and many such applications are denied.

When someone wishes to come to the United States, they must apply for a visa. As will be discussed in more detail in another lesson, a visa is a document that is issued by a United States consular officer at a U.S. Embassy or consulate abroad. When granted, a visa does not guarantee admission into the U.S., only the right to apply for admission. Even then, it is valid only for the type of visit specified in the visa application. Thus, a person who applies for a tourist visa is not allowed to enter the U.S. with that visa if their real purpose is to work, to go to school, or to remain for an extended period of time in the U.S.

Once an alien is admitted to the United States, their visa ceases to have any relevance to their stay. The terms and conditions of their admission and length of stay are controlled by the status that they are given by the U.S. Citizenship and Immigration Services Bureau ("CIS"). It is not at all unusual for a person to apply for admission to the U.S. on the last day of validity of their visa, yet receive authorization to remain for six months. Similarly, just because a person has a tourist visa that is valid for ten years does not mean that they will be allowed to stay more than the time normally allowed for tourists (usually six months or less).

For aliens in the United States, it is of critical importance that they always obey the terms of their admission. A person who is admitted as a tourist should not attend school or work. A person who has been authorized to stay for three months should not stay beyond that time without asking permission to do so. There are very harsh penalties for people who violate the terms of their admission.

If someone overstays the departure date shown on their form I-94 arrival/departure record, their visa becomes void immediately and may not be used again. In addition, such a person is forever required to apply for new visas only in his or her home country.

When a nonimmigrant alien remains in the U.S. beyond the departure date on their I-94, they enter what is known as "unlawful presence". If someone remains in unlawful presence for 180 days or more, once they leave the U.S. they are barred from returning for three years. If they remain in unlawful presence for more than twelve months, after they leave they are barred from returning for ten years.

There are special rules that protect nonimmigrants who apply for a change of status or an extension of status before their status expires.

If someone wishes to become an immigrant (LPR or green card holder), they must go through a special procedure which usually (but not always) requires the sponsorship of a qualifying family member or an employer.

In the case of family based immigration, the qualifying family member must file an immigrant petition on behalf of the alien. Only after it is approved will the alien qualify to immigrate. Depending upon the relationship between the alien and the qualifying family member, the alien may or may not be subject to having to wait on a visa quota list until their place in line is reached. For those who do have to wait, there is no provision in the law which allows them to remain legally in the U.S. solely on the basis of the approved petition.

Employment based immigrants generally, but not always, go through a three step process: labor certification; immigrant preference petition; acquisition of immigrant status. Some people are able to bypass the first step because they qualify to immigrate through special provisions in the law. Most, however, must complete all three steps.

Contrary to popular belief, it is not only possible, but quite common for people to begin processing for immigrant status at the same time, or even before they start processing for nonimmigrant status. The two procedures are entirely independent of one another.

It is important to remember that very few benefits are granted automatically in the U.S. immigration system. In almost every case, it is necessary to make a formal application. Even when something is granted automatically, it is almost always necessary to file something with a government agency to document this fact.

The U.S. immigration system uses a large number of specialized terms and unusual acronyms. ImmInfo has prepared lists of these, with their definitions.