Florida Law
Florida Immigration Law: Employment
Immigration Law: Employment
For centuries, people from around the world have been coming to the United States. They come to work, get an education, escape oppression, start a new life, do business, visit friends, or sightsee. Over the years, the United States has seen tremendous diversity in the countries immigrants come from and their reasons for coming here. In response to the incredible demand for permission to enter this country, the federal government has established a complex set of laws that determines who may enter this country and for what reasons. This chapter discusses legal immigration and travel to the United States.
United States Citizenship
United States citizens have a right to travel to and
live in the United States and enjoy the fullest protection
of United States laws. People who are not citizens
of the United States usually must have a visa to enter
and may not enjoy the protection of all United States
laws.
A person can become a United States citizen either through birth or through a process known as naturalization. A person can be a United States citizen from birth either by being born here, or by being born in a foreign country but having a parent who is a citizen of the United States. Anyone born in the United States has automatic citizenship, regardless of the parents' citizenship, and even if both parents are living in this country illegally at the time of the child's birth. The only exception is that children born to foreign diplomats in the United States do not get automatic citizenship. Anyone not born a citizen must be naturalized to become a citizen. Occasionally, a group of people is naturalized by treaty or by act of Congress. Usually, a person goes through the process individually.
Aliens, Immigrants, Nonimmigrants, and Residents
An alien is a citizen of any country other than the
United States. A person who comes here to stay permanently
is called an immigrant. Someone who intends to return
to his or her country of origin is called a nonimmigrant,
even if he or she intends to stay for a substantial
period of time. For example, a student might stay in
the United States for many years to complete an education
and still be considered a nonimmigrant. The distinction
between immigrant and nonimmigrant is crucial. Permission
to enter as a nonimmigrant often is easier to get than
permission to enter as an immigrant, so some people
are tempted to claim they intend to return to their
home country in order to enter this country. The Immigration
and Naturalization Service (INS) is aware of this temptation
and often will deny a nonimmigrant visa application
to anyone suspected of wanting to remain permanently.
Also, being granted a nonimmigrant visa sometimes can
make it more difficult to get an immigrant visa later.
A permanent resident is an alien who has been given
permission to live permanently in the United States.
In a dispute with the INS over an applicant's true intent, the applicant always bears the burden of proving intent to remain here temporarily. For some people, this burden is nearly impossible to meet. For example, the spouse of a permanent resident normally must wait over two years for available immigrant visas. If he or she claims to want to visit only temporarily, he or she must overcome the presumption that a married person would want to remain permanently with his or her spouse.
The Visa System
A visa is a stamp in a person's passport that gives
him or her conditional approval to enter the United
States. Most matters involving visas are handled by
the INS. Most aliens apply for visas from a consulate
or embassy of the United States in the alien's home
country.
Citizens of some countries, primarily European countries
and Japan, may enter the United States for up to 90
days without a visa. To be eligible, citizens of these
countries must show the INS that they have a return
ticket home and that they intend to engage in a type
of business or tourist activity that would be allowed
under a "B Visa," described below. Canadian
citizens generally do not need visas to enter temporarily.
In some instances, they must obtain INS approval in
advance if they are coming here to work.
Congress establishes a complex set of quotas that limits the number of most types of visas that can be granted. Whether an applicant receives a visa depends on the type of visa requested, the applicant's reason for traveling to the United States, and the applicant's country of origin. Probably the most important element in successfully obtaining a visa is knowing for which visa category to apply. For certain categories of visas and certain countries of origin, an applicant can wait many years before he or she even will be considered for a visa. Sometimes the wait would be much shorter if the applicant applied for a different type of visa. Unfortunately, once an applicant applies for one type of visa, it can be difficult to change the application to another class. For this reason, it is wise to consult an immigration attorney before applying for any kind of visa.
Nonimmigrant Visas
There are different kinds of nonimmigrant visas, identified
by the letters AR, available for persons who do not
intend to remain in the United States permanently.
All nonimmigrant visas are based on what the applicant
intends to do in this country. It is important that
employers be aware of the variety of visas that exist.
Following is a list of the categories of visas available.
A Visas:A visas are for diplomats and their families.
B Visas:B-1 visas are for aliens coming to this country
to do business but not for employment or labor for
hire, such as to do business research, engage in litigation,
or negotiate contracts; B-2 visas, the most common
nonimmigrant visas, allow aliens to enter the country
temporarily to engage in tourism, visit with friends
or relatives, or receive medical treatment.
C Visas:C visas allow persons to enter the United States
only for immediate and continuous transit through the
country to a third country.
D Visas:D visas are for crew members of foreign vessels
or airplanes.
E Visas:E visas are for traders and investors covered
by commercial treaties between the United States and
foreign countries, as well as spouses and children
of a E Visa holders.
F Visas:F visas are for students in full-time academic
programs, from the elementary school level up to the
post-graduate level, as well as spouses and children
of F Visa holders, and allowing employment for fewer
than 20 hours a week, mainly at certain on-campus jobs
typically done by students.
G Visas:G visas are for representatives, officers, and
employees of foreign countries to international organizations.
H Visas:H visas are for workers needed by United States
employers to fill temporary openings; H-1B visas are
commonly held by aliens with highly specialized knowledge
working in professional jobs.
I Visas:I visas are for media representatives and their
families.
J Visas:J visas are designed to bring foreigners here
to participate in exchange programs designated by the
United States Information Agency.
K Visas:K visas allow an alien engaged to a United States
citizen to enter to marry the citizen, as well as for
any minor children of the alien.
L Visas:L visas are for intracompany employee transfers
(e.g., for employees of multinational corporations).
M Visas:M visas are for students in vocational or nonacademic
study programs.
N Visas:N visas are for relatives of certain international
organization employees here on G visas.
O Visas:O visas are for artists, entertainers, athletes,
scientists, and certain business professionals with
extraordinary ability in their field, and persons needed
to accompany and assist them.
P Visas:P visas are for performing artists, entertainers
and athletes; similar to O visas, but easier to get
and intended more for group entertainers or athletes
who come here for a specific performance or tour.
Q Visas:Q visas are for participants in international
cultural exchanges.
R Visas:R visas are for religious workers and their
families.
Immigrant Visas
An applicant who intends to stay in this country permanently is generally admitted either on the basis of employment or family connections. The main exception is for political asylum seekers.
Employment-Based Immigration
An alien can receive permission to immigrate to this
country on the basis of his or her employment. There
are five categories of employment, known as preferences,
through which an alien can be permitted to immigrate.
First Preference:Individuals of extraordinary ability;
outstanding professors or researchers; and, multinational
executives.
Second Preference:Professionals with advanced degrees
and aliens with exceptional abilities in science, art,
or business. (Note: The terminology is confusing, but
"exceptional ability" is a different standard
from "extraordinary ability.")
Third Preference: Skilled workers, professionals, and
other workers for which there is a shortage of workers
in the United States.
Fourth Preference: Certain special workers, such as
religious workers.
Fifth Preference: Investors creating employment for
workers in the United States; the investment must be
substantial (i.e., between $500,000 and $1,000,000).
Family-Based Immigration
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An alien can get a visa as an immediate relative of
a United States citizen if he or she is a child, spouse,
or parent of the citizen. In addition, there are four
family-based immigrant visa categories:
First Preference:Unmarried children of United States
citizens.
Second Preference:Spouses and unmarried children of
lawful permanent residents.
Third Preference:Married children of United States citizens.
Fourth Preference:Siblings of adult United States citizens.
Each preference is allotted a total number of visas.
Generally speaking, the higher the applicant's preference,
the shorter the wait to get a visa.
Special Classes of Immigrants
Some groups of immigrants receive special treatment
and fall outside the preference system described above.
Diversity immigrants are immigrants from countries deemed under-represented in the pool of applicants for visas throughout the years. A new program implemented by the INS in 1995 provides a certain number of visas to be granted to applicants from low-admission countries. Applicants also must have a high school education or two years of training or experience in a particular occupation.
A person is a refugee if he or she is outside the United States, is fleeing or has fled his or her country, and has a well-founded fear that if returned to the home country, he or she will be persecuted because of race, religion, nationality, membership in a particular social group, or political opinion. An asylee is an alien already in the United States who, like a refugee, has a well-founded fear of persecution if returned to his or her home country. The President and Congress decide each year the total number of refugees and asylees to accept into the country. Occasionally, Congress grants immigrant visas allotted for individuals from specific countries according to political factors. Recent programs have included China, Hong Kong, and Tibet.
Entry and Exclusion
A visa only gives conditional approval to enter the
country. Once an alien arrives in the United States
with a visa, he or she must apply for entry from INS
officials at the point of entry. For most aliens, this
is a mere formality, but the INS can exclude persons
with valid visas for a variety of reasons, including
communicable diseases, physical or mental disorders
that pose a threat to others, drug addiction, or criminal
history. Involvement in espionage or terrorist activity
against the United States government or its people
is grounds for exclusion. The Secretary of State also
has broad discretion to bar entry of anyone whose presence
would have an adverse effect on the foreign policy
of the United States. Sometimes, waivers are available
for aliens who otherwise would be denied entry for
certain reasons. For example, the child of a United
States citizen may be granted a waiver to enter to
receive treatment for drug addiction.
Getting a Green Card and Becoming a Naturalized Citizen
Becoming a permanent resident is the first step that
an alien must take to become a naturalized American
citizen. People with permission to live in the United
States permanently are issued "green cards"
that allow them to work with few restrictions. A permanent
resident can apply to become a naturalized citizen
after five years, or three years if married to a United
States citizen.
The INS is diligent in investigating marriages between United States citizens and aliens to ensure that aliens do not become permanent residents through sham marriages. Immigration law specifies that an alien seeking permanent residence based on a marriage to a United States citizen of less than two years is first granted conditional permanent resident status. After two years, the husband and wife must apply to the INS to remove this conditional status.
Deportation
Deportation is the expulsion of an alien who entered
illegally, or entered legally but has done something
to become deportable. With few exceptions, any violation
of the conditions of a visa, no matter how minor, is
grounds for deportation to a person's country of origin.
Conviction for any crime but the most minor also is
grounds for deportation. Deportation can delay an alien
whose long-term goal is to live permanently in this
country. After being deported, aliens are forbidden
to re-enter the country for five years. Aliens deported
for aggravated felonies, such as drug smuggling, are
barred from re-entry for 20 years or may be barred
permanently. The delay in returning to the United States
may be even greater for aliens from countries with
long waiting lists. Returning home under a deportation
order may result in the embassy's refusal to entrust
the individual with another temporary visa.
There are a number of remedies to deportation, especially if the deportable person has lived in the United States for a long time, building a life that demonstrates good moral character. Even if the deportable individual has not been here long, there may be certain waivers or defenses to deportation. Among the most common is asking the court for "voluntary departure," which allows the individual to leave the United States on his or her own. In any case, anyone facing deportation should seek the advice of counsel well in advance of a deportation hearing.
Resources
Amnesty International, Refugee Office, 500 Sansome Street,
Suite 615, San Francisco, CA 94111, (415) 291-0601.
Florida Department of Health and Rehabilitative Services, Refugee Coordinator, 1317 Winewood Boulevard, Building B, Suite 400, Tallahassee, FL 32399-0700, (904) 488-2381.
Immigration and Naturalization Service, Miami District, 7880 Biscayne Boulevard, Miami, FL 33138; Southern Regional Office, P.O. Box 568808, 7701 Stemmons Freeway, Dallas, TX 75356-8808; call (800) 870-FORM (3676) for forms.
Contact the Lawyers Committee for Human Rights, 330 Seventh Avenue, Tenth Floor, New York, NY 10001, (212) 629-6170 for information on refugee protection.
National Center for Human Rights and Constitutional Law, 256 Occidental Boulevard South, Second Floor, Los Angeles, CA 90057, (213) 388-8693.