Immigration Crash Course, or, What Could Be More Complicated than Zoning

Not surprisingly, immigration has joined zoning among the areas in which state and local government lawyers must have at least some expertise. In recent years, immigration status has had increasingly significant implications for state and local governments as residents’ immigration status can determine eligibility for public benefits and public employment, outcomes in the criminal justice system, and, given the recent push and pull over so-called sanctuary cities, eligibility for federal funding for certain governmental activities.

Which is why for the next 2,800 words or so, I will seek to provide a quick and dirty guide to immigration for state and local government lawyers and leaders. I begin by explaining that when we use the word immigration we are speaking broadly about the basic pathways and legal structures through which foreign nationals travel to and then remain in the United States. The term can encompass tourists visiting for just a few hours all the way up to individuals waiting to take the oath to become U.S. citizens.

The Visa

To travel to and remain in the United States, a foreign national must have a visa, which is essentially permission from the U.S. government conveying eligibility to enter and remain in the United States—or be in one of several categories, defined in the first instance by the foreign national’s country of origin, where our laws dispense of the visa requirement. For purposes of this guide, I will describe three broad and admittedly imprecise categories of visas: (1) visitor, (2) non-immigrant, and (3) immigrant.

Visitors

Visitor visas are divided among those for business or tourist travel. They can be for short or long periods of time and can often authorize multiple entries over a defined period of time; however, no single period of entry can be for more than six months.

A number of countries are subject to a visa waiver, meaning that their nationals can enter the United States simply by presenting the passport of that country. Designation of countries for visa waivers is based on a determination that citizens of those countries are unlikely to attempt to remain unlawfully in the United States and that security screening procedures for nationals of those countries are adequate to ensure that the traveler does not pose a threat to public safety

Visas, those for travelers as well as other visitors, come in a variety of different types, which are primarily determined by the purpose for which an individual is seeking to remain in the United States. Visas are labelled with alphanumeric designations that correspond to the immigration code sections authorizing a particular category of entry in to the United States. Visitor visas are typically designated as either:

PurposeWeb InformationB-1Business Visitorshttps://travel.state.gov/content/visas/en/visit/visitor.htmlB-2Tourism and Visithttps://travel.state.gov/content/visas/en/visit/visitor.html

Critically, you may neither work for pay from a U.S. employer nor study while in the United States on a B-1 or B-2 visa.

Non-Immigrant Visas

Non-immigrant visas authorize individuals to live and engage in certain activities in the United States such as study or work on a nonpermanent basis. Non-immigrant visas require their holders to depart the United States or transfer to another immigration status on the occurrence of defined events (e.g., graduation) or after the expiration of a defined time period corresponding to the authorized duration of the specified visa category. Individuals who want to either engage in a course of study or work in the United States, but who do not intend to permanently immigrate to the United States may seek student or employment visas. Generally, spouses and minor children of a primary visa holder are eligible for derivative visas whose duration is concurrent with that of the primary visa holder. Examples of commonly used non-immigrant student and employment-based visas are listed below:

Visa TypePurposeWeb InformationF-1/M-1Studentshttps://travel.state.gov/content/visas/en/study-exchange.htmlE H-1B H-2A H-2B L O PTreaty Trader & Investor Specialty Occupation Temporary Agricultural Workers Temporary Non-Agricultural Workers Intracompany Transferees Individual with Extraordinary Ability or Achievement Athletes and Entertainershttps://travel.state.gov/content/visas/en/employment/treaty.html

Immigrant Visas

As opposed to non-immigrant visas, immigrant visas enable holders to immigrate permanently to the United States and receive a green card. A foreign citizen seeking to immigrate must generally be sponsored by a U.S. citizen or a lawful permanent resident immediate relative(s), or prospective U.S. employer, and have an approved petition before applying for an immigrant visa. Examples of commonly used immigrant visas are listed below:

Visa TypeDescriptionWeb InformationIR1/ CR1Immigrant Visa for Spouse of U.S. Citizenhttps://travel.state.gov/content/visas/en/immigrate/family/fiance.htmlIR-2Unmarried Child Under 21 of U.S. Citizenhttps://travel.state.gov/content/visas/en/immigrate/family/family-preference.htmlIR-5Parent of a U.S. Citizens Who is At Least 21 years oldhttps://travel.state.gov/content/visas/en/immigrate/family/family-preference.htmlEB-1Priority Workers: Person with extraordinary ability, outstanding professors and researchers; multinational managers and executiveshttps://travel.state.gov/content/visas/en/immigrate/employment.htmlEB-2Professionals Holding Advanced Degrees and Personal of Exceptional Abilityhttps://travel.state.gov/content/visas/en/immigrate/employment.htmlEB-3Skilled Workers, Professionals, and Unskilled Workershttps://travel.state.gov/content/visas/en/immigrate/employment.htmlEB-5Immigrant Investorshttps://travel.state.gov/content/visas/en/immigrate/employment.html

As to each category, a certain number of visas are made available annually based on the visa category and the country of origin. For some combinations of countries and visa categories, for example EB-3 immigrants from India, waits for visas can go on for many years. These allocations are titrated on a monthly basis by the State Department and announced in a visa bulletin. This month’s visa bulletin can be found at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-june-2017.html.

In addition to visas based on either employment or family relationships, individuals can enter a lottery system to obtain a diversity visa. The number of visas available in a given year for a given country is determined by the State Department based on the population of that country and the number of nationals of that country who come to the United States through other visa categories. Diversity visas are specifically intended for nationals of countries with low rates of immigration to the United States. Annually, 50,000 such visas are made available.

Refugees/Asylum

In addition to the categories above, individuals who believe they have experienced or fear persecution based on their race, religion, national origin, political opinion, or social group can request admission to the United States as refugees. The number of refugees admissible to the United States in any given fiscal year is determined by the President in consultation with Congress. Last year, nearly 85,000 refugees were admitted to the United States from a number of countries. Individuals are eligible to become permanent U.S. residents after one year as refugees.

Foreign nationals who are already in the United States, whether lawfully or unlawfully, who believe they have experienced or fear persecution based on their race, religion, national origin, political opinion, or social group can request to remain in the United States as asylees.

With minor exceptions mostly based on other humanitarian considerations, foreign nationals not in one of the above-described categories do not have an option to legally immigrate to the United States.

Citizenship

Absent certain barriers, holders of immigrant visas generally become eligible to become legal permanent residents of the United States, a status documented by what is commonly known as the “green card.” Green card holders in turn become eligible to apply for U.S. citizenship no later than five years after receiving their green card, with shorter periods available to U.S. service members and their spouses.

Foreign Nationals in the United States Without Authorization

A significant number of foreign nationals, estimated by various sources to be approximately 11 million, reside in the United States without authorization. Many originally entered the United State under tourist or non-immigrant visas and stayed past the period of authorization. Many others entered the United States without authorization and continued to remain in the United States unlawfully. Many such individuals are members of families whose other members are lawfully in the United States, including as U.S. citizens. Many have been in the United States for a number of years. Absent some sort of defense, the sole sanction for being in the United States without authorization is removal from the United States (also called deportation) following proceedings in the immigration courts. Under a variety of circumstances, the federal government can temporarily elect not to subject individuals determined to be unlawfully in the United States to removal.

Individuals determined to be without authority to enter the United States and apprehended at or near the border, whether by land, air, or sea, are subject to immediate deportation, known as expedited removal. Otherwise, individuals apprehended in the interior of the United States may contest their removal before the immigration courts, administrative tribunals within the Department of Justice.

Ordinarily such persons believed by immigration authorities to be in the United States without authorization are subject to arrest and deportation; however, there are several avenues of relief available to them.

First, should those individuals qualify for any of the non-immigrant or immigrant visa categories described above, they may apply for admission under one of those categories. There are, however, a number of barriers to such admission including prohibitions running as long as ten years for individuals who have resided in the United States without authorization.

Second, individuals who are nationals of particular countries may apply for Temporary Protected Status, which permits those individuals to stay and generally work in the United States for renewable periods running no longer than 18 months. After a consultation process involving the Department of Homeland Security and the Department of State, countries are designated for temporary protected status for their nationals in the United States on the occurrence of catastrophic events such as natural disasters and wars, and a determination by the U.S. government that that country is unable to effectively reabsorb its nationals who are in the United States. Among countries with significant numbers of nationals authorized to be in the United States under temporary protected status are El Salvador and Haiti.

Third, individuals unlawfully in the United States who came here as children may, subject to certain conditions, request deferral of deportation and grant of work authorization under the Deferred Action for Childhood Arrivals (DACA) policy. The grant of deferred deportation and work authorization under the DACA program is given for a period of two years under a policy established by President Barack Obama in 2012. There are approximately 750,000 current DACA recipients—colloquially known as “Dreamers.” Thus far, President Trump has not taken any action to terminate either the DACA policy as a whole or to begin systematically terminating individual DACA grants.

Finally, some foreign nationals in the United States without authorization may be able to assert asylum claims, as described above, as a defense to deportation as described above.

Responsible Agencies

Responsibility for administering the immigration scheme falls to a multitude of federal agencies:

• The Department of State, Bureau of Consular Affairs manages the process of travel to the United States.
• Department of Homeland Security, Customs and Border Protection administers the borders both at ports of entry such as airports, seaports, and land crossings, as well as along the entire land and sea border.
• Department of Homeland Security, U.S. Citizenship and Immigration Services administers non-immigrant and immigrant visas.
• Department of Homeland Security, Immigration and Customs Enforcement handles all interior immigration enforcement, including arrest and removal operations.
• The Department of Justice, Executive Office for Immigration Review contains the immigrations courts.