Florida Law
Florida Immigration Law: Individual
- Immigration Law: Individual
Immigration Law: Individual
Give me your tired, your poor,Your huddled masses, yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless tempest-tossed to me . . .
Inscription on the Statue of Liberty from Emma Lazarus' poem, "The New Colossus."
For centuries, people from around the world have been coming to the United States. During the latter part of the nineteenth and early part of the twentieth century, over 23 million immigrants, primarily from Europe, arrived on U.S. shores. Since that time, immigrants have continued to come to the United States, but the names of their homelands have gradually changed. Instead of Germany, Ireland and Italy, the majority of today's immigrants originate from Central and South America, the Philippines, Vietnam and other Asian countries. Whatever their countries of origin, all immigrants face a gauntlet of regulations and procedures, known collectively as U.S. immigration law, before entering the country. This chapter provides an overview of immigration law. Given the complexity of immigration law and the importance of the issues involved, it is strongly recommended that consumers retain an experienced attorney for their immigration needs.
Historical Context
The U.S. Constitution gives Congress the power to regulate
immigration and naturalization, but says little else
on the issue. There are no statements of any immigration
principles or philosophy. Over the years, Congress
has had to write immigration law based on the sway
of public opinion and the issues of the day. During
the first 100 years of the United States, Congress
did little to restrict the flow of immigrants into
the country. Given the immensity of the American frontier,
there seemed little reason to police the country's
borders. However, the depression in the 1870s and a
rise in racial animosity led to the first restrictions
on immigration in 1882. In 1921, the first comprehensive
law limiting the annual number of immigrants and defining
the criteria for admission was passed. The criteria
emphasized country of origin and gave preference to
countries already heavily represented in the United
States Country of origin preference and ideological
preference continued until the last half of this century.
In 1952 and again in 1990, U.S. immigration law was
reformed, removing quotas favoring one country or another
and ideological exclusions. Congress instead sought
to attract persons possessing desirable work skills
or economic resources regardless of national or racial
origin, while still permitting entry to family members
and close relatives of U.S. citizens and to people
facing political persecution in their home country.
Currently, about 800,000 immigrants are permitted into
the United States each year, not including those who
enter illegally.
U.S. Citizenship
U.S. citizens enjoy the entitlements and full protection
of U.S. law, including the right to leave and re-enter
the United States unobstructed. Those who are not U.S.
citizens are not entitled to the same government benefits
as U.S. citizens, may not enjoy the protection of all
U.S. laws and in many cases, must have a visa to enter
the U.S.
A person can become a U.S. citizen either through birth or through a process known as naturalization. A person can be a U.S. citizen from birth either by being born in the U.S. or by being born in a foreign country to a U.S. citizen. Anyone born in the U.S. is an American citizen, regardless of the parents' citizenship. Even if both parents are living in this country illegally at the time of their child's birth, the child is a U.S. citizen if born on U.S. soil. The only exception is that children born to foreign diplomats in the U.S. do not receive 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 an 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 to the U.S. 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 in
the United States for a substantial period of time.
For example, a student might stay in the U.S. many
years to complete an education and still be considered
a nonimmigrant. The distinction between immigrant and
nonimmigrant is crucial. Permission to enter the United
States as a nonimmigrant is often much easier to obtain
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 get into the United States.
The Immigration and Naturalization Service (INS), which
is chiefly responsible for monitoring immigration,
is aware of this temptation and will often deny a nonimmigrant
visa application to anyone it suspects wants to remain
permanently. Also, being granted a nonimmigrant visa
can sometimes 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 temporary intent. For some people, this burden is nearly impossible to overcome. 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 naturally 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. For most aliens, the process of traveling
to the United States begins by applying for a visa
from a U.S. consulate or embassy 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 the United States temporarily. In some instances, they must obtain INS approval in advance if they are coming to the United States to work.
Congress establishes a complex set of quotas that limits the number that can be granted for most types of visas. Whether an applicant receives a visa turns 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 to 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 will even 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 has applied for one type of visa, it can be difficult to change one's application to another class of visa. For this reason, it is wise to consult an immigration attorney before applying for any kind of visa.
Nonimmigrant Visas
There are 18 different kinds of nonimmigrant visas,
identified by the letters AR, available for persons
who do not intend to remain in the U.S. 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.
A Visas: A visas are for diplomats and their families.
B Visas: B visas are for alien visitors coming to this
country either for business or pleasure. B-1 visas
are for business, but not employment or labor for hire,
and are commonly used by aliens coming 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 to 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.
E Visas: E visas are for traders and investors covered
by commercial treaties between the U.S. and foreign
countries. Spouses and children of E visa holders generally
also receive E visas.
F Visas: F visas are for students in full-time academic
programs. These visas are for students from the elementary
school level through the postgraduate level. Spouses
and children of F visa holders are usually also given
F visas. Unlike most nonimmigrant visa holders, students
with F visas may be employed for fewer than 20 hours
a week, mainly at certain on-campus jobs typically
held by students.
G Visas: G visas are for representatives of foreign
countries to international organizations.
H Visas: H visas are for workers needed by U.S. employers
to fill immediate and temporary openings. H-1A visas
are for professional nurses, H-1B visas are commonly
held by aliens working in professional-level jobs,
H-2A visas are for temporary agriculture workers and
H-2B visas are for all other temporary workers.
I Visas: I visas are for media representatives and their
families.
J Visas: J visas are designed to bring foreigners to
the United States to receive training in exchange programs
designated by the U.S. Information Agency.
K Visas: K visas allow an alien engaged to a U.S. citizen,
as well as any minor children of the alien, to enter
the United States to marry the citizen.
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 outstanding artists, entertainers,
athletes, scientists and certain business professionals.
O-1 visas are for aliens with extraordinary ability
in their field. The standards for getting an O-1 visa
are very high and must be shown through extensive documentation
of international acclaim. O-2 visas are for persons
who are needed to accompany and assist an O-1 alien.
P Visas: P visas are for performing artists, entertainers
and athletes. P visas are somewhat similar to O visas,
but are usually 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 (artists, scientists, business people, teachers or athletes); outstanding professors or researchers; and multinational executives. The standards for this category are very high.
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 in the U.S.
Fourth Preference:Certain special workers, usually religious workers, juvenile court dependents or employees of U.S. government or international organizations.
Fifth Preference:Employment creation aliens. These aliens can gain admission to the United States by virtue of their ability to create new jobs here through substantial investment of between $500,000 and $1,000,000.
Before entering the United States in an employment-based category, most aliens are required to complete a labor certification process which mandates, among other things, that an alien be sponsored by a U.S. employer willing to offer full-time, indefinite employment. In order to protect the U.S. labor market, the employer must already have tried to fill the position with a U.S. citizen.
Family-Based Immigration
An alien can get a visa as an immediate relative of
a U.S. citizen if he or she is a child, spouse or parent
of the citizen. In addition, there are five different
family-based immigrant visa categories:
1: Unmarried children of U.S. citizens
2a: The spouses and minor children of lawful permanent
residents
2b: Adult unmarried children of lawful permanent residents
3:Married children of U.S. citizens
4:Siblings of adult U.S. citizens
These five categories are grouped into preferences and each preference is allotted a total number of visas. Generally speaking, the lower an applicant's preference number, the shorter the wait to get a visa. For example, Preference One applicants face significantly shorter waiting periods for visas than Preference Four applicants.
Special Classes of Immigrants
Some groups of immigrants receive special treatment
and fall outside the preference system described above.
Diversity Immigrants: In 1986 Congress established a pilot lottery program for visa applicants from countries deemed under-represented in the applicant pool. The pilot program became permanent in 1995. Under this program, applicants from under-represented countries can enter a random lottery for a limited number of visas reserved specifically for those countries.
Refugees and Asylees: 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. Congress occasionally grants immigrant visas allotted for individuals from specific countries according to political factors. Recent programs have included Tibet, Hong Kong, China and Cuba.
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 U.S. government or its people is grounds
for exclusion. The secretary of state also has broad
discretion to bar entry for anyone whose presence would
adversely affect the foreign policy of the U.S. Waivers
are sometimes available for aliens who would otherwise
be denied entry for certain reasons. For example,
the child of a U.S. citizen may be granted a waiver
to enter to receive treatment for drug addiction.
Obtaining 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. Persons with permission to live permanently
in the United States are issued green cards that allow
them to work with few restrictions. A permanent resident
can apply to become a naturalized American citizen
after five years (three years if married to a U.S.
citizen).
The INS is diligent in investigating marriages between U.S. 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 U.S. citizen of less than two years is first granted conditional permanent resident status. This classification exists for two years and 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 either
entered the United States 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 anything
but the most minor crime is also grounds for deportation.
Deportation can severely delay an alien's long-term
goal to live permanently in this country. After being
deported, aliens are forbidden to re-enter the country
for 5 years. Aliens deported for aggravated felonies,
such as drug smuggling, are barred from re-entry for
20 years or may even be permanently barred. The delay
in returning to the United States may be even greater
for aliens from countries with long waiting lists,
as returning home under a deportation order may result
in the U.S. embassy's refusal to entrust the individual
with any more temporary visas.
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 here that includes proof of 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 depart the United States on his or her own without being deported. In any case, anyone facing deportation is strongly urged to seek the advice of legal counsel well in advance of a deportation hearing.
Special Concerns for Employers
Businesses often recruit foreign citizens with specialized
skills to come to the United States and work for their
companies. As discussed earlier in the description
of visa categories, whether an employee can obtain
a work visa depends, to a great extent, on his or her
skills. Some immigration lawyers specialize in helping
businesses meet the legal requirements for prospective
employees to work in the United States.
All employers must verify that all their employees are legally authorized to work in the United States, according to federal immigration laws. This verification is accomplished by having all employees complete an immigration document, Form I-9, at the time employees are hired. If employers fail to verify that employees are eligible to work in the United States, they may be subject to warnings, penalties, fines and even criminal prosecution. However, employers must also be careful that their procedure for verifying legal authorization does not discriminate on the basis of race, national origin, or citizenship status. Employers cannot hold a certain group of employees to tighter scrutiny than other employees, and they should not take national origin or citizenship status into account when making hiring decisions. There are a number of traps into which an employer might fall if procedures are not carefully established and implemented. For example, some employers have been fined for applying stricter application procedures to job applicants who did not speak English, were members of minority groups, or who had not lived in the United States for long. An experienced immigration attorney can advise on how to establish procedures that verify the legal status of all employees without illegally discriminating.
Resources
To request an INS form, call (800) 870-FORM or (800)
870-3676.
The INS maintains a toll-free number with recorded information concerning recent changes in immigration law and INS procedures as well as other information. The toll-free number is (800) 755-0777.
Immigration and Naturalization Offices in Florida:
1) Miami District Office
7880 Biscayne Boulevard
Room 100
Miami, FL 33138
(305) 536-5741
2) Jacksonville Sub-office
400 West Bay Street
Room G-18
Jacksonville, FL 32202
(904) 232-2624
3) Tampa Sub-office
5509 West Gray Street
Room 207
Tampa, FL 33609
(813) 288-1217