The following information is meant to be general information only. It is not intended to be legal advice for the reader’s particular fact situation nor to create an attorney-client relationship.
(c) 2014 Law Office of Bonnie Stern Wasser updated 2016.
General Immigration Concepts
- What is the difference between a “visa” and an “I-94”?
- What is a “nonimmigrant”?
- What is a “green card” and “lawful permanent residence”?
- What is INA “214(b)”, “221(g)” and “administrative processing”?
- What rights and obligations do permanent residents (LPR) have versus U.S. citizens?
- How does the quota system work?
- Why is my application taking so long to be decided?
- What are some of the reasons my visa, green card or citizenship application could be denied?
Q1. What is the difference between a “visa” and an “I-94”?A1. A “visa” is a stamp in a passport obtained from a consulate or embassy for a specific upcoming trip. The visa is like a permit allowing a person from one country to travel to another country. The visa is issued by a consulate or embassy of the host country where you will visit. In the case of visits to America, the U.S. Consulates and embassies abroad issue visas. The Consulates are run by the U.S. Department of State. Visas allow the holder to go to the door of the country to be visited. Presentation of the passport and visa to a border officer (at a land, sea or air port) is much like knocking on someone’s door and asking for permission to enter. For example, if you are from China and would like to visit the USA as a nonimmigrant B-2 tourist, you will need to go to a U.S. consulate or embassy in China and apply for the visa. If approved, the visa will be stamped into your Chinese passport. You may then board a plane or ship and present both the visa and passport to the border agent at your port of entry into the USA. As noted in Q2, there are some instances where a visa is not required. People from “visa waiver” countries, now complete an “ESTA” form online prior to coming to the USA. They do not need to visit a US consulate or embassy unless the ESTA is rejected. Please see the list of “visa waiver” countries.
Once at the “door” or land/sea/air port of entry of the USA, the immigration officer will “inspect” you to determine if you indeed qualify for the visa and plan to carry on the activity for which the visa is authorized without violating the terms of your visa category. For some flights to the USA, that inspection occurs in a foreign country at the airport before boarding the plane at “pre-flight” inspection, such as at Vancouver, B.C. airport.
Therefore, if you require a visa to come to the USA, you will be interviewed or inspected at least twice. Upon “admission,” non-immigrants will be issued a form “I-94” or “arrival card.” Until mid-2013, individuals received paper I-94 cards stapled into their passports. Since 2013, the border officer now enters the I-94 data from your passport directly into a computer. It is essential to download a copy of their I-94 before leaving the USA. The site is www.cbp.gov/I94. Whether the paper or online version, the I-94 will show your “entry date” and the “expiration date” for that particular entry type. It is valid for that particular entry only. It is very important to understand that the expiration date and category on the I-94 governs the time limits of that particular entry unless a subsequent extension of stay or change of status has been approved before departure from the US. The I-94 is also very important proof of lawful status and admission or parole required for future applications for “adjustment of status” to lawful permanent resident status. I-94s are also important for determining whether one is later subject to rules on “unlawful presence” or “unauthorized status.”
Note that the expiration date on the I-94 may be much earlier or much later than the expiration date of the visa. This is common for tourists who may have 10-year visas or indefinitely issued visas. The I-94 entry stamp may be limited for six months. This is because that is the maximum time allowed for each entry as a tourist, unless admitted in visa waiver status (WT or WB), which is limited to 90 days. Although extensions are permissible, the I-94 date controls the amount of permissible stay and status type. When extensions or change of status are approved, you will receive a new I-94 expiration date. Note: Visa waiver admittees (WT/WB) are NOT entitled to extensions or change of status except in limited circumstances. Note also, that visa dates and I-94 expiration dates can differ for other reasons, usually having to do with “reciprocity agreements” between the USA and other countries. Again, the I94 date controls the length of stay for that particular entry. Always look at the I-94 date to determine when to leave the USA or file for an extension of stay or change of status. Green card holders (permanent residents) and U.S. citizens do not receive I-94s. Canadians are not always given I-94s. Their tourist-based admission is limited to six months or “duration of status.” Similarly, F-1 students are often given “D/S” or duration of status annotations on their I-94s, which correlates to the length of their school programs, which can change over time.
Q2. What is a “nonimmigrant”?
A2. All people coming to the U.S. are presumed to be “immigrants” coming to stay in the U.S. indefinitely or permanently unless they prove they are nonimmigrants, refugees or US citizens. A nonimmigrant is someone planning to come to the U.S. for a temporary period, which could be as short as a few hours or as long as many years. Most nonimmigrants need to first get visas at U.S. consulates or embassies abroad. Nonimmigrant visas are lettered “A” through “V” (e.g., B-2 for tourist, F-1 for foreign student, H-1B for temporary specialty occupation worker, etc.) Each has a different purpose, maximum length of stay and minimum requirements. Some Canadians do not need visas (tourists, some business categories). The U.S. has agreements with certain countries that do not require visas for bona fide tourists coming for 90 days, called “visa waiver” or “WT” or “WB.”
The most common reason B-2 tourists, F-1 foreign students, M-1 vocational students, J-1 Exchange visitors visas, TN workers, and visa waiver applicants are denied admission or visas is because they cannot overcome the presumption that they will stay permanently. These visa categories in particular (and there are others) require a truly temporary intent, and proof of a permanent home in the applicant’s country that has not been abandoned. Often this is hard to show.
Q3. What is a “green card” or “lawful permanent residence”?
A3. A green card is a street term for an “alien registration card” (or form I-551). The alien registration card is a plastic card that evidences “lawful permanent residence” (LPR). It authorizes the person named on the card to live and work in the U.S. indefinitely or permanently. It is NOT evidence of U.S. citizenship. The card contains various security features including a photo, fingerprint and signature, and file or case number, and other data.
A person who has been granted LPR status but who has not yet received the plastic card may have or be entitled to a temporary stamp in his or her passport stating “temporary evidence of lawful permanent residence” (“I-551 stamp”). Another term for LPR status is “immigrant visa. ” The immigrant visa is obtained at a U.S. Consulate abroad rather than in the U.S. LPR status is triggered upon entry into the U.S. with an immigrant visa. The actual plastic green card arrives a few weeks later.
People who immigrate through a marriage that is less than two years old or through the first stage of the EB-5 investor program will have “conditional permanent residence” for two years. Their conditional status will convert to permanent status when a “petition to remove conditions” is approved. Form I-751 in marriage cases and Form I-829 in EB-5 cases must be filed within the 90-day period before the two-year conditional residence period expires. Upon approval, applicants will receive the standard 10-year green cards.
Note: Although the cards are issued in 10-year increments, status remains indefinite so long as the holder continues to maintain LPR status or until becoming a US citizen. File Form I-90 to renew your card. See www.uscis.gov.
An LPR continues to have the citizenship of his or her country of origin. After a period of time, an LPR can apply for US citizenship through the “naturalization” process. An LPR can lose permanent residence if he or she fails to keep the U.S. as the primary place of abode, commits certain crimes or other immigration violations. LPRs can also voluntarily give up their status but should check with their accountant about tax liability first.
LPRs can sponsor spouses and children (minors and adults, single or married) for immigration.
Q4. What is “214(b),” “222(g),” and “administrative processing”?
A4. “214(b)” refers to a section of the Immigration and Nationality Act (INA) that basically, in laymen’s terms, means that the applicant failed to meet his/her burden of proving temporary intent and enough ties to the home country. This is also known as “preconceived intent.” The government is suspicious that you are not really going to return home. As stated above in Q2, everyone not a US citizen coming to the US is presumed to be coming permanently. Therefore, to come as a bona fide tourist or student or in one of the other visa categories requiring temporary intent and proof of an un-abandoned home in your country, you have to rebut that presumption of permanent intent. Many, many applicants have their visa applications denied for this reason. The officer wants to see proof of family, work, and asset ties abroad – something to lure you back home after the purpose of your trip is complete. Unfortunately, this is difficult for poor or single people to show, as it is for young, single, well- educated people who are likely to find work in the US, or can find spouses, marry and never return home. However, a 214(b) denial does not mean that you cannot try again when circumstances or evidence is better the next time.
INA 214(b) is not the same as fraud or misrepresentation, however. INA 214(b) means the applicant hasn’t met their burden or proof. They can try to reapply again later with better evidence. Fraud or misrepresentation, on the other hand, means the person lied, or made a material misstatement in writing on the visa application or orally to an officer that affects the officer’s decision. Had the officer known the true fact, he might have ruled otherwise. Fraud or misrepresentation is a ground of inadmissibility under “212(a)(6)(c)” to deny a visa or green card as well as a ground of removal. Depending upon the type, there may or may not be a waiver available. The issue can come up in numerous ways over the course of a person’s immigration history (visa applications, border encounters, green card and naturalization applications). Fraud findings have long term consequences to applicants.
“INA 221(g)” is often noted on a piece of paper given to a visa applicant after interview. This usually means the applicant didn’t present enough information and more evidence is needed. If the applicant can provide it, he or she can usually overcome this ground of denial and get the visa issued. You must present the new evidence within a year or else you will need to re-file and pay new fees. INA 221(g) might also involve “administrative processing.”
“Administrative processing” can be the “black hole” of visa applications. It’s a loose term that can mean all kinds of things the consular officer is not likely to tell you. The case is being investigated; more extensive background checks are being done; the previously approved visa petition might be sent back to USCIS and revoked; birth/marriage/divorce documents from some countries that are known to be unreliable are being authenticated. Administrative processing is pretty common for people from Middle Eastern, East African, Southeast Asian, and Eastern European countries.
Q5. What rights and obligations do permanent residents (LPR) have versus U.S. citizens?
A5. Both can seek work anywhere in the U.S. (depending upon the category of permanent immigration); both can live anywhere in the U.S.; both must register with the Selective Service if between 18 and 26 years old; both can voluntarily enlist or can be drafted in the military; both can own real and personal property in the U.S.; both must file U.S. tax returns. LPRs continue to hold the citizenship of their country of birth and/or country of last citizenship depending upon the laws of those countries. Naturalization is the process by which LPRs become US citizens.
A U.S. citizen may vote; an LPR may not unless allowed in local jurisdictions. A U.S. citizen may hold public office; an LPR usually may not, depending upon the jurisdiction. Some jobs requiring security clearances and some government jobs require U.S. citizenship.
LPRs can lose their status by committing certain crimes, abandoning U.S. residence, receiving certain kinds of welfare, and committing some other deportable/removable offences. Some naturalized citizens may lose citizenship if it was obtained by fraud. LPR status can be voluntarily and intentionally relinquished. Similarly, US citizens may voluntarily expatriate or give up U.S. citizenship. However, both may have significant tax and future immigration consequences. Getting tax and legal advice is highly recommended before voluntarily abandoning LPR or US citizenship status.
As noted above, LPRs can sponsor spouses and children (married, unmarried, over or under 21). However, in all cases, the sponsored relatives will be stuck in the quota that varies by country of birth. We call these “preference” categories. US citizens, on the other hand, can sponsor parents, spouses and minor children unmarried and under 21, who are “immediate relatives” NOT subject to the quota. US citizens can also sponsor siblings and children over 21 including those who are married. This latter group will be subject to the quota in most cases as they are also preference categories.
Q. 6. How do the Quotas Work?
A. 6. The quota system for lawful permanent residence is extremely complex. The following is a very general description. There are two main categories of permanent immigration: family based (FB) and employment based (EB). Within each broad category there are four to five additional sub-categories that are prioritized according to the “preference” which Congress has given to the category in terms of the priority of immigrants needed first. Each sub-category is referred to as a “first preference”, “second preference,” etc.The only category NOT subject to a preference, and therefore, no quota, is “immediate relative,” or the parents, spouses and minor children (single, under 21 years old) of U.S. citizens. The preferences are as follows:
FAMILY-SPONSORED PREFERENCES (“FB”)
- First: Unmarried Sons and Daughters of Citizens
- Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:
- Spouses and Children
- Unmarried Sons and Daughters (21 years of age or older)
- Third: Married Sons and Daughters of Citizens
- Fourth: Brothers and Sisters of Adult Citizens
EMPLOYMENT-BASED PREFERENCES (“EB”)
- First: Priority Workers: Multi-national executives and managers, Outstanding researchers and professors, and Aliens of Extraordinary ability
- Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability (includes those requiring labor certifications and those with national interest waivers)
- Third: Skilled Workers, Professionals, and Other Workers
- Fourth: Certain Special Immigrants
- Fifth: Employment Creation ($1million/$500k investors)
Each preference category, as well as the lottery (diversity program), and family unity program are subject to numerical limitation. That is, a finite number of visas are available in each category every year. Congress long ago set the numerical limitations by country and category. Only Congress can change immigration categories and numbers. Each country of origin is further assigned a “foreign state chargeability,” or a maximum number of visas for that preference category. The appropriate country is usually your country of birth, not citizenship. When the visas in some categories do not get used up, sometimes the unused visas in that category “spill over” into another category. Again, there is a complex formula devised by the U.S. Congress.
If demand for nationals of a particular country exceeds supply, a waiting list or a backlog forms. Over the last 8-10 years, the only countries with some employment-based backlogs are India, China, Mexico, and the Philippines. This is consistent with current and historical migration patterns due to socio-economic, political, cultural education pressures, and geographic conditions in those countries and the resulting pressures on US immigration caused by those conditions. However, even in the “worldwide” category, which includes every country except the ones just mentioned, there are quota backlogs in all family based (FB) preference categories, and in some employment based preferences (EB), usually EB-3 or jobs requiring a bachelors degree or less.
A new “batch” of visas becomes available on October 1 of every year, the start of the government’s fiscal year. Generally, the quota tends to move along more quickly (a few weeks to a few months at a time) between October and the following June. From June to the next October, things tend to slow down again. A person’s place in line in the quota is established in chronological order of receipt of a visa petition or labor certification application (PERM). In other words, people from the same country in the same category cannot jump in line ahead of you if their petitions were filed later than yours.
Your place in line in the quota or backlog is called the “priority date.” For FB and EB cases (EB cases that do not require a labor certificate), the priority date is established on the date a “visa petition” is “filed” (received by the USCIS). For EB cases requiring a labor certification, the priority date is the date the labor certificate application (PERM) is “filed” or received by DOL. For lottery winners, the place in line is established by the number given to the winner at the time of selection.
Prior to October 1, 2015, you could not file for the final phase of immigration, called “adjustment of status” in the U.S., or “immigrant visa processing” at a U.S. Consulate abroad, until your priority date was “current,” or you reached the front of the line in the quota. However, beginning October 1, 2016, the State Department started posting both final adjudication dates (the date when an adjustment or immigrant visa case can be decided) as well as filing dates, which can be earlier than the final adjudication dates. This is especially important for people in the US seeking to file adjustment of status because they can file for work permits at the same time as adjustment of status while the adjustment case is pending for the quota to become current.
You can monitor the progress of the quota and early filing dates every month by watching the State Department’s “Visa Bulletin.” When you look at it, you will see a table of the FB/EB categories down the left side and countries across the top. Where each preference and country intersects, there may be a “C” which means the quota is “current,” open, or there is no line. If you see a date, that means visas are available to applicants with that priority date or earlier. If you see a “U”, that means visas are unavailable to everyone in that category from that country. When that category opens up again, priority dates will be preserved.
There are complicated rules for “cross-charging” priority dates, preserving and capturing dates, etc. These should be discussed on an individual basis with your attorney. Cross-charging has to do with taking advantage of a dependent’s country of birth. Other issues deal with preserving priority dates when changing categories, or issues dealing with children who want to preserve their status as minors under 21, but where quota delays cause them to turn 21 or older before the case can be completed. (e.g., Child Status Protection Act).
There are some other visa categories that have annual caps or allotments. And, each has different rules as to whether those who did not get visas in a given year have to start again the following year or get to remain in line for the following year. The H-1B and H-2B annual caps, for instance, require a new application every year if the applicant was not selected in years of high demand. On the other hand U visa applicants and those people granted cancellation of removal in front of an immigration judge, get to stay in line for the following year without having to reapply.
Q 7. Why is my application taking so long to be decided?
A 7. The government posts average processing times, or, if you retain our firm, we will let you know estimated processing times for your particular case. The main reasons the government can delay a decision in a case include:
- Bureaucratic problems (agency limited resources, shifting priorities of the particular office that has your case, lost or misplaced files, fingerprint/clearance problems and background checks, etc.);
- Quota delays – demand for a particular visa category with a numerical limit exceeds supply. See Q&A #6 above.
- Political, environmental, or security problems abroad forcing U.S. consulates to close or reduce services; or weather or political conditions in the US forcing government shutdowns;
- Your case is incomplete, is not a good case on the facts or law, is being investigated, or is going to be denied and a written opinion has to be prepared. Many cases also receive “requests for evidence” or “notices of intent to deny” that allow additional time to respond before a decision will be made. The time you take to respond to such a notice also has to be factored in to the timeline.
Q 8. What are some of the reasons my visa, green card or citizenship application could be denied?
A 8. Visas, green cards or citizenship applications can be denied for many reasons. Failure to meet the requirements of the underlying category is one reason for potential denial. Our system of immigration has two main counterparts: first, grounds of “inadmissibility” apply to people seeking to enter the U.S., and which include seeking to adjust to permanent residence. A person can be denied a visa at a U.S. consulate, or can be denied admission into the U.S. at a border, or can be denied a green card or citizenship based upon grounds of inadmissibility. There are about 30 grounds of inadmissibility. A person not appearing to be admissible at the border may be turned around and sent home with an order of “expedited removal,” or may be permitted to “withdraw the application for admission.” Asylum seekers may be given “credibility hearings” or “credible fear interviews” to determine if they have bona fide claims for asylum. They may be detained until a decision on an asylum application is made.
Grounds of “deportation” or “removal” are generally for things that have occurred after having been admitted into the US, when someone is found in the U.S. who entered illegally, who was not originally admissible, or was admitted properly but committed a deportable offense subsequently. If caught, the person is usually brought into removal proceedings before an Immigration Judge. The person may or may not be detained or incarcerated during this time. There are about 30 grounds of removal; most, but not all of them correspond to the grounds of inadmissibility. There are a few grounds of removal where a person is not even entitled to see a judge, or a person could waive a court hearing. In fact ICE, the enforcement agency, is increasingly deporting people without immigration court hearings at all!
Immigration Court hearings are civil in nature. There is no Constitutional right to government appointed counsel in Immigration Court. There are some crimes involving immigration that are brought in federal court such as smuggling, reentry after deportation and other crimes. In criminal cases, there is a Constitutional right to government appointed counsel.
Although the grounds of inadmissibility and removal are fairly similar, they are not always exactly alike. Very generally, they include such things as violations of status (e.g., working when not allowed to on a tourist or student visa); certain criminal and terrorism activities, having certain contagious diseases, mental health issues, or substance or alcohol abuse, having received certain types of welfare in the US, having previously entered illegally, having been previously deported or excluded, having made misrepresentations or false statements in an application for an immigration benefit, failing to have labor certification when required, overstaying a visa, and various other reasons. Some of the grounds of removal and inadmissibility have exceptions (i.e., the ground does not apply); others have ways to overcome the ground of inadmissibility, called “waivers” (i.e., an additional application usually requiring a qualifying U.S. citizen or LPR relative, and a positive exercise of discretion). Still other grounds are strict liability – there are no exceptions or waivers available and the person will be deemed permanently inadmissible or removable. An example is making a false claim to U.S. citizenship. If a case is in Immigration Court, there may be specific applications for relief from removal such as asylum, waivers, cancellation of removal, adjustment of status and voluntary departure, to name a few.
Criminal activity in the U.S. or abroad presents one of the most challenging areas of inadmissibility and removability, lately referred to among immigration lawyers as “crimmigration.” Over the years, Congress has expanded the range of crimes affecting immigration status, making them retroactive to many years ago. It is essential to get legal advice if you have a criminal history no matter how long ago it occurred, or how innocuous or “minor” it was, and even if you think it was “dismissed.” What happens in criminal court does not necessarily have the same meaning in immigration law. In fact, crimmigration can be Kafka-like. You can help your attorney enormously (and maybe save some money) if you obtain certified copies of the file from the court where the offense was tried or plead to, whether in the U.S. or abroad. Be aware that this is a very complicated area of the law and it changes frequently. In addition, some criminal grounds of removal or inadmissibility do not even require a conviction. For example, the government only needs to “reasonably believe” that a person is engaged in drug trafficking. Or, for some crimes, one need only admit the essential elements of the crime without ever having been convicted of the crime.
Other common grounds of removal or inadmissibility involve misrepresentation or fraud, repeat violations of the immigration laws (e.g., entry without inspection after a prior removal/deportation), and unlawful presence. These present complex issues that we suggest require legal advice from a competent immigration lawyer.