New York Law
New York Immigration Law
- Immigration Law
Immigration Law
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 and the responsibilities of employers under these laws.
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 visas 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 in the United States 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 an available immigrant visa. 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 visas. To be eligible, a citizen of one of these countries must show the INS that he or she has a return ticket home and intends 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 A-R, 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: 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: to enter the United States only for immediate and continuous transit through the country to a third country.
D Visas: for crew members of foreign vessels or airplanes.
E Visas: for traders and investors covered by commercial treaties between the United States and foreign countries, as well as spouses and children of E Visa holders.
F Visas: 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: for representatives, officers, and employees of foreign countries to international organizations.
H Visas: for workers needed by United States employers to fill temporary openings; H-1B Visas commonly are held by aliens with highly specialized knowledge working in professional jobs.
I Visas: for media representatives and their families.
J Visas: designed to bring foreigners here to participate in exchange programs designated by the United States Information Agency.
K Visas: to 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: for intracompany employee transfers (e.g., for employees of multinational corporations).
M Visas: for students in vocational or nonacademic study programs.
N Visas: for relatives of certain international organization employees here on G Visas.
O Visas: for artists, entertainers, athletes, scientists, and certain business professionals with extraordinary abilities in their fields, and persons needed to accompany and assist them.
P Visas: 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 specific performances or tours.
Q Visas: for participants in international cultural exchanges.
R Visas: for religious workers and their families.
Immigrant Visas
An applicant who intends to stay in this country permanently generally is 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 aliens 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: "exceptional ability" is a different standard than "extraordinary ability" required for a first preference.)
Third Preference: Skilled workers, professionals, and other workers of which there is a shortage 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
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 applicants from low-admission countries. An applicant also must have a high school education or two years of training or experience in a particular occupation.
Refugess and asylees also receive special treatment. 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 the 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 after 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 and has built 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 depart the United States on his or her own.
Business Concerns with Immigration Law
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 get 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 their employees are legally authorized to work in the United States, according to federal immigration laws. This verification is accomplished by having an employee complete an immigration document known as Form I-9 at the time of hiring. 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 also must be careful that their procedures for verifying legal authorization do not discriminate on the basis of race, national origin, or citizenship status. Employers cannot subject a certain group of employees to closer 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 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
Several governmental and non-governmental organizations may provide further information on immigration law, including:
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 & Constitutional Law, 256 Occidental Boulevard South, Second Floor, Los Angeles, CA 90057, (213) 388-8693.