For experienced immigration judges and novices alike, terminology and basic questions swirling around immigration can cause profound confusion and mischief. When similar or identical terms and phrases are used to mean different things, confusion abounds. And how many times have you heard the same basic question about immigration issues answered in wildly different ways? Given these issues, this article provides a basic foundation for frequently asked immigration questions, starting with: Who is an alien?
Who is an alien?
An alien is any person who is not a citizen of the United States.1
What is the difference between a nonimmigrant and an immigrant?
The Immigration and Nationality Act defines an immigrant as any alien, except for an alien who is within the classes of nonimmigrants.2 Nonimmigrants may enter the United States for temporary purposes, with nonimmigrant visa categories comprising a veritable alphabet soup—from the A visa all the way to the V visa. Some common visas are the B-2 visa for tourism, the B-1 visa for business, the H-1B visa for employment in a specialty occupation, the L-1 visa for intracompany transferees, and the R-1 visa for religious workers.3
An immigrant is an individual authorized to remain in the United States indefinitely, and who is a lawful permanent resident (LPR), popularly known as a green card holder.
How does someone come to the United States as an immigrant?
A foreign-born individual can become a lawful permanent resident in one of four main ways:
First, through family-based immigration, a U.S. citizen or LPR can sponsor his or her close family members for permanent residence.4 A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), minor and adult children, and brothers and sisters. An LPR can sponsor his or her spouse, minor children, and adult unmarried children. In most cases, citizens or LPRs wishing to petition for a family member must earn at least 125 percent of the poverty level and sign a legally enforceable affidavit of support to that effect.5 If the primary sponsor is unable to demonstrate this income level, a joint sponsor, who is either a U.S. citizen or LPR, also may submit an affidavit of support.6
Second, through employment-based immigration, a U.S. employer can sponsor a foreign-born employee for permanent residence.7 Typically, the employer must first demonstrate to the Department of Labor that there is no qualified U.S. worker available for the job, but labor certification is not required for all employment-based categories, and even if required, can be waived.
Third, through humanitarian-based immigration, a person located outside the United States who seeks protection in the United States on the grounds that he or she faces persecution in his or her homeland can enter this country as a refugee.8 In order to be admitted to the United States as a refugee, a person must prove that he or she has a “well-founded fear of persecution” on the basis of at least one of the following internationally recognized grounds: race, religion, membership in a social group, political opinion, or national origin.9 A person who is already in the United States and fears persecution if sent back to his or her home country may apply for asylum in the United States.10 Once granted asylum, the person is called an “asylee.” Like a refugee, an asylee must prove that he or she has a “well-founded” fear or persecution based on one of the five enumerated grounds listed above.
Fourth, a person may qualify for the diversity visa lottery. To qualify for the diversity visa lottery, individuals must have a high school education or its equivalent or, within five years preceding the application, have had at least two years of experience in an occupation requiring at least two years of training or experience.11
How many immigrants are admitted to the United States every year?
Although there are other provisions that allow an individual to obtain lawful permanent residence, the main categories have the following limitations:
Family-based immigration is limited by statute, with slight variations from year to year, to 480,000 persons per year.12 Because of the numerical cap as well as per country limits,13 there are long waiting periods to obtain a visa in most of the family-based immigration categories.
Employment-based immigration is limited by statute to 140,000 persons per year.14
The United States accepts only a limited number of refugees from around the world each year.15 This number is determined every year by the president in consultation with Congress. The total number of annual “refugee slots” are divided among different regions of the world.
No more than 50,000 diversity visas can be issued each year.16
What is the difference between a visa and status?
A visa is issued by a U.S. consulate overseas that authorizes the foreign national to be admitted to the United States in a nonimmigrant classification for an authorized period.17 The nonimmigrant is admitted in a status that conforms to the visa classification. Hence, one who receives an H-1B visa at a U.S. consulate is admitted into the United States in H-1B status. The foreign national can remain in H-1B status so long as he or she meets the conditions of the H-1B classification. Even if the underlying visa expires, it is the individual’s length of admission in that visa status that is controlling. One can apply for an extension of nonimmigrant status within the United States18 or also can apply for a change of status.19
Who is an illegal alien?
Noncitizens who are not authorized to be in the United States are referred to as illegal aliens,20 although the preferred term is undocumented or unauthorized immigrants. Examples include a noncitizen who has fallen out of status by staying beyond the date authorized under the terms of the visa admission. Another example includes one who came across the border without inspection. A person who was previously lawfully in the United States but who has received a final order of removal and has not departed also would fall under this category. On the other hand, an individual who is out of status but is the recipient of deferred action is authorized to remain in the United States and can even seek employment authorization, such as beneficiaries of the Deferred Action for Childhood Arrivals program.21 Even an individual who has an outstanding removal order can seek a stay of removal22 or supervised release,23 and is then authorized to remain in the United States.
What is the obligation of an employer regarding employing undocumented workers?
An employer must verify every new employee’s eligibility to work in the United States and attest under penalty of perjury on Form I-9 that the employee submitted to the employer documents that establish both employment authorization and identity.24 While it is unlawful for an employer to knowingly hire an unauthorized noncitizen,25 it is also unlawful for an employer to discriminate against someone based both on national origin and on alienage.26 An employer also cannot ask for more or different documents or refuse to accept documents that are on their face genuine.27 An employer, however, can be charged with constructive knowledge for knowingly hiring an unauthorized worker.28 An employer is subject to civil and criminal penalties for violating the provisions relating to employer verification or knowingly hiring or continuing to hire unauthorized workers.
What are the consequences of remaining in the United States illegally?
Apart from being removable,29 a person who has been unlawfully present for 180 days or more and then departs the United States is barred from being admitted for three years.30 A person who has been unlawfully present for one year or more and then departs the United States is barred from being admitted for 10 years.31 A person who has been unlawfully present for one year, or who has been removed, and who leaves the United States and seeks to enter without being admitted is permanently barred.32
A person may be able to seek a waiver of the 3 – or 10-year bar by demonstrating hardship to a limited category of qualifying relatives, which include U.S. citizen or permanent resident spouses or U.S. citizen or permanent resident parents.33
When can a person eligible for permanent residence apply for such status in the United States?
Upon fulfilling conditions for permanent residency, a noncitizen can adjust status to permanent residence in the United States by demonstrating that he or she was inspected and admitted or paroled into the United States.34 Additionally, the individual must not have been in unlawful status or worked without authorization.35 There are exceptions, however. An immediate relative, such as the spouse, child, or parent of a U.S. citizen, is not required to maintain lawful status, for instance. Still, this person must have been inspected and admitted or paroled. Thus, an individual who entered without inspection would still not be able to adjust status to permanent residence in the United States. This is true even if such an individual is the spouse of a U.S. citizen. If this individual departs the United States to process the visa at a consular post overseas, he or she will be subject to the 3 – or 10-year bar and will need to apply for the waiver.
What is the difference between inadmissibility and removability?
Inadmissible and deportable noncitizens are two subcategories of removable noncitizens. Inadmissibility grounds36 apply to a noncitizen who has not been admitted.37 Deportability or removability grounds38 apply only after the noncitizen has been admitted. While many of the grounds of inadmissibility and deportability overlap, the inadmissibility grounds are broader than the deportability grounds. For example, the crime-related grounds of inadmissibility require only the admission to committing acts constituting the essential elements of a crime involving moral turpitude or a controlled substance offense.39 The deportability ground requires a conviction of a crime involving moral turpitude committed within five years from the date of admission for which a sentence of one or more years may be imposed.40 A noncitizen already admitted into the United States who is convicted for a controlled substances offense, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.41 Yet, when this same citizen departs the United States and seeks admission, he or she will be rendered inadmissible for the same marijuana conviction.42 Similarly, a conviction characterized as an aggravated felony43 is deportable,44 but it may not render the noncitizen inadmissible unless the offense is also a crime involving moral turpitude.
Who are lawful permanent residents?
A lawful permanent resident is one who has the status of being lawfully accorded the privilege of permanently residing in the United States as an immigrant.45 An LPR who returns to the United States is considered “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”46 The term “temporary visit abroad” has recently been subject to interpretation by the circuit courts. The Ninth Circuit’s interpretation is generally followed with some variation in other circuits:
A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.47
The Ninth Circuit has added:
Some of the factors that could be used to determine whether an alien harbored a continuous, uninterrupted intention to return in addition to the alien’s testimony include the alien’s family ties, property holdings, and business affiliations within the United States, the duration of the alien’s residence in the United States, and the alien’s family, property and business ties in the foreign country.48
LPRs are generally not regarded as seeking admission upon return from a trip abroad except under certain circumstances, such as if they have abandoned status or have committed certain offenses.49 They are accorded full constitutional rights to due process relating to their admission.50 Once the LPR has made a colorable claim to status, the burden is on the government to prove abandonment by clear, convincing, and unequivocal evidence.51 LPRs are, however, subject to the grounds of inadmissibility52 and deportability.53
When may a lawful permanent resident naturalize?
An LPR is eligible for naturalization after residing continuously for a period of five years since obtaining lawful permanent residence.54 The applicant must demonstrate that he or she has been physically present in the United States for at least half of the time and has resided in the state in which the application was filed for at least three months.55 The applicant also must reside continuously after filing the application up until the time of admission to citizenship.56 The applicant also must demonstrate good moral character during this five-year period.57 An LPR who is the spouse of a U.S. citizen can apply for citizenship after residing continuously for three years instead of five years, and then needs to demonstrate that he or she was physically present in the United States for half of the three years.58 Some applicants, such as spouses of U.S. citizens working overseas on behalf of a U.S. corporation or subsidiary, are exempted from the residency requirements altogether.59 After demonstrating knowledge of the English language, U.S. history, and government,60 the applicant must take the oath of allegiance to the United States as a final step to naturalization.61
The author thanks Sophia Genovese-Halvorson, a law student at Brooklyn Law School and legal intern at Cyrus D. Mehta & Partners PLLC, for her invaluable assistance in editing the article and providing many helpful suggestions.
1. Immigration and Nationality Act (INA) § 101(a)(3); 8 U.S.C. § 1101(a)(3). Although “alien” is used throughout the INA, many view “alien” as a pejorative term, and thus prefer to use the terms “foreign national” or “noncitizen.”
2. INA § 101(a)(15); 8 U.S.C. § 1101(a)(15).
3. See INA § 101(a)(15)(A)–(V). The alphabet within § 101(a)(15) represents the visa. For example, the A visa under § 101(a)(15)(A) is issued to diplomats and other officers and employees of foreign consulates in the United States.
4. INA § 204(a); 8 U.S.C. § 1154(a).
5. INA § 213A; 8 U.S.C. § 1183a.
6. INA § 213A(f)(2); 8 U.S.C. § 1183a(f)(2).
7. INA § 203(b); 8 U.S.C. § 1153(b).
8. INA § 101(a)(42); 8 U.S.C. § 1101(42).
9. Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) (to establish eligibility for refugee status, one must have a fear of persecution; the fear must be “well-founded”; the persecution feared must be on account of race, religion, nationality, membership in a particular social group, or political opinion; and the alien must be unable or unwilling to return to his country of nationality because of persecution or his well-founded fear of persecution); see also Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010) (to establish eligibility for asylum, one must show past persecution or a well-founded fear of future persecution); Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) (membership in a particular social group requires that the group have particular and well-defined boundaries that are socially visible).
10. INA § 208; 8 U.S.C. § 1158.
11. INA § 203(c); 8 U.S.C. § 1153(c).
12. INA § 201(c); 8 U.S.C. § 1151(c).
13. INA § 202; 8 U.S.C. § 1152.
14. INA § 201(d); 8 U.S.C. § 1151(d).
15. INA § 207; 8 U.S.C. § 1157.
16. INA § 201(e); 8 U.S.C. § 1151(e).
17. See generally INA § 221; 8 U.S.C. § 1201.
18. INA § 221(c)(2); 8 U.S.C. § 1201(c)(2); see also 8 C.F.R. § 214.1(c).
19. INA § 248; 8 U.S.C. § 1258; see also 8 C.F.R. § 248.
20. 8 U.S.C. § 1621(a), (d).
21. See generally Consideration of Deferred Action for Childhood Arrivals, USCIS.gov, available at https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca.
22. INA § 241(c)(2); 8 U.S.C. § 1231(c)(2).
23. INA § 241(a)(3); 8 U.S.C. § 1231(a)(3).
24. INA § 274A(b); 8 U.S.C. § 1324a(b); see also 8 C.F.R. § 274a.2(b)(1)(v)(A)–(C).
25. INA § 274A(a)(1)(A); 8 U.S.C. § 1324a(a)(1)(A).
26. INA § 274B(a); 8 U.S.C. § 1324b.
27. INA § 274B(a)(6); 8 U.S.C. § 1324b(6).
28. 8 C.F.R. § 274a.1(l)(1). See also, e.g., Mester Mfg. Co. v. INS, 879 F.2d 561 (9th Cir. 1989) (employer was found to have constructive knowledge when it failed to take action after being notified by former INS that certain employees were unauthorized); cf. Collins Foods Int’l, Inc. v. INS, 948 F.2d 549 (9th Cir. 1991) (when Social Security card reasonably appeared to be genuine on its face even when it was actually a fake card, employer did not possess constructive knowledge that employee was unauthorized).
29. INA § 237(a)(1)(B), (C); 8 U.S.C. § 1227(a)(1)(B), (C).
30. INA § 212(a)(9)(B)(i)(I); 8 U.S.C. § 1182(a)(9)(B)(i)(I); see also Donald Neufeld, Associate Director, Service Center Operations, et al., Memorandum, Consolidation of Guidance Concerning Unlawful Presence (May 6, 2009).
31. INA § 212(a)(9)(B)(i)(II); 8 U.S.C. § 1182(a)(9)(B)(i)(II).
32. INA § 212(a)(9)(C); 8 U.S.C. § 1182(a)(9)(C). A person implicated under this provision will have to wait outside the United States for 10 years before seeking permission to re-enter the United States.
33. See INA § 212(a)(9)(B)(v); 8 U.S.C. § 1182(a)(9)(B)(v). Under 8 C.F.R. § 212.7, it may be possible to apply for a waiver of the 3 – and 10-year bars in advance prior to departure.
34. INA § 245(a); 8 U.S.C. § 1255(a).
35. See generally INA § 245(c); 8 U.S.C. § 1255(c).
36. See generally INA § 212 for inadmissibility grounds; 8 U.S.C. § 1182.
37. INA § 101(a)(13)(A) defines an admission as a lawful entry “after inspection and authorization by an immigration officer.”
38. See generally INA § 237 for deportability grounds; 8 U.S.C. § 1227.
39. INA § 212(a)(2)(A)(i); 8 U.S.C. § 1182(a)(2)(A)(i).
40. INA § 237(a)(2)(A)(i); 8 U.S.C. § 1227(a)(2)(A)(i).
41. INA § 237(a)(2)(B)(i); 8 U.S.C. § 1127(a)(2)(B)(i).
42. INA § 212(a)(2)(A)(i)(II); 8 U.S.C. § 1182(a)(2)(i)(II).
43. INA § 101(a)(43); 8 U.S.C. § 1101(a)(43).
44. INA § 237(a)(2)(A)(iii); 8 U.S.C. § 1127(a)(2)(A)(iii).
45. INA § 101(a)(20); 8 U.S.C. § 1101(a)(20).
46. INA § 101(a)(27)(A); 8 U.S.C. § 1101(a)(27)(A).
47. Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also Chavez – Ramirez v. INS, 792 F.2d 932 (9th Cir. 1985); Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002); Hanna v. Gonzales, 335 F.3d 1003 (6th Cir. 2005); In re Huang, 19 I. & N. Dec. 749 (BIA 1988).
48. Chavez-Ramirez, 792 F.2d at 937.
49. INA § 101(a)(13)(C); 8 U.S.C. § 1101(a)(13)(C).
50. See Landon v. Plasencia, 459 U.S. 21 (1982).
51. See Woodby v. INS, 385 U.S. 276 (1966); Ward v. Holder, 733 F.3d 601 (6th Cir. 2013).
52. See, e.g., In re Collado-Munoz, 21 I. & N. Dec. 1061 (BIA 1998) (finding that an LPR who has committed an offense identified in INA § 212(a)(2), and then who departs the United States and returns, shall be regarded as seeking an admission into the United States despite his LPR status); but see also Vartelas v. Holder, 566 U.S. 257 (2012) (finding that an LPR with a pre-IIRIRA conviction was not seeking admission into the United States upon return from a brief departure).
53. See generally INA § 237 for deportability grounds.
54. INA § 316(a)(1); 8 U.S.C. § 1427(a)(1).
56. INA § 316(a)(2); 8 U.S.C. § 1427(a)(2).
57. INA § 316(a)(3); 8 U.S.C. § 1427(a)(3).
58. INA § 319(a); 8 U.S.C. § 1430(a).
59. INA § 319(b); 8 U.S.C. § 1430(b).
60.INA § 312(a); 8 U.S.C. § 1423(a). Applicants can qualify for exceptions to these requirements as set forth in INA § 312(b); 8 U.S.C. § 1423(b).
61. INA § 337; 8 U.S.C. § 1448.