A visa is a stamp in your passport from a consulate or embassy that allows you to travel to another country. It acts like a travel permit and is issued by the country you plan to visit. For the U.S., visas are issued by U.S. embassies and consulates abroad, which are run by the Department of State.

A visa lets you travel to the U.S. border and ask to enter, much like knocking on a door. For example, if you're from China and want to visit the U.S. as a B-2 tourist, you must apply for a visa at a U.S. embassy or consulate in China. If approved, the visa is stamped in your passport, which you then present at your U.S. entry point.

Some travelers from “visa waiver” countries don’t need a visa. Instead, they must complete an online ESTA form before coming. If the ESTA is denied, they must apply for a visa. See the list of visa waiver countries for details.

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.

If you need a visa to enter the U.S., you will be interviewed or inspected at least twice. Once admitted, non-immigrants receive an I-94 form, which shows the entry and expiration dates for that visit. Before 2013, this was a paper card; now, the information is entered electronically. Be sure to download your I-94 from www.cbp.gov/I94 before you leave the U.S.

The I-94 is valid only for that specific entry and determines how long you can stay, unless you’re granted an extension or change of status. It’s crucial for proving lawful status, applying for permanent residency, and determining if you’ve been unlawfully present or out of status.

Important: The expiration date on your I-94 may be very different from the visa expiration date. For example, tourists often have 10-year visas but are only admitted for up to six months per visit. Visa waiver travelers (WT/WB) can stay only up to 90 days and cannot extend or change status, except in rare cases.

The I-94 date is what determines how long you can stay in the U.S., not the visa. If you are approved for an extension or change of status, you'll receive a new I-94 with an updated expiration date.

Visa and I-94 dates can also differ due to international agreements. Always check your I-94 to know when you must leave or apply to stay longer.

Note: U.S. citizens and green card holders do not receive I-94s but may have travel histories on the CBP website linked above. Canadians may not get I94s either. Tourists from Canada are generally allowed up to six months. F-1 and M-1 students and J-1 exchange visitors usually get an I-94 marked “D/S” (Duration of Status), which aligns with the length of their studies and can change over time.

Anyone coming to the U.S. is presumed to want to stay permanently—unless they prove they’re just visiting, are refugees, or are U.S. citizens. In other words, people coming for a temporary stay must prove their plans to return home and that they have not given up their ties to their home country.

Nonimmigrants are people coming for a short or temporary stay—from a few hours to several years. Most need to get a visa from a U.S. embassy or consulate before they arrive. Visas are labeled with letters (like B-2 for tourists, F-1 for students, or H-1B for workers with special skills). Each visa has different rules about how long you can stay, the requirements, and what you’re allowed to do.

Some people, like Canadians and tourists from certain countries, don’t need a visa for short visits. This is called the Visa Waiver Program and allows visits up to 90 days for tourism or business. See Q1 above. These travelers must apply online using a system called ESTA. ESTA is not a visa—it’s just permission to travel to the U.S. under the waiver program. If denied, you’ll need to apply for a regular visa. Always save a copy of your ESTA application.

Many people are denied visas or entry because they can’t prove they will return home. This is especially true for tourists, students, and exchange visitors. You must show you plan to stay temporarily and have a home outside the U.S. that you don’t plan to leave for good. A few visa categories, such as H-1b and L-1, for example, have “dual intent” meaning you have plans to be here temporarily and may eventually stay permanently if a green card is granted, but will return home if no green card is granted.

A green card is a common name for an official U.S. document called an “alien registration card” (Form I-551). It proves that someone is a lawful permanent resident (LPR), which means they can live and work in the U.S. permanently—but they are not a U.S. citizen. The green card is plastic and includes the person’s photo, fingerprint, signature, and other security info. If someone is approved as a permanent resident but hasn’t received the card yet, they may get a temporary stamp in their passport showing their legal status.

There are three places to apply for a green card: 1) in the USA in the process called “adjustment of status” from USCIS; 2) from an immigration judge if in removal proceedings seeking relief from removal; and 3) at a US consulate abroad, called an “immigrant visa.” Upon entry with the immigrant visa, the plastic green card will be mailed to the LPR.

LPR status is valid indefinitely except as described below. The card is issued in 10-year increments and is evidence of status. Green cards expire every 10 years, but permanent residence status lasts indefinitely as long as you follow the rules. You can renew the card with Form I-90. However, only a judge can take away LPR status away, although the Trump Administration is asserting the President can do this without a hearing.

If someone gets a green card through a marriage less than two years old, or through the EB-5 investor program, they get conditional permanent residence for two years. To stay permanently, they must file a form to remove those conditions before the two years are up (Form I-751 for marriage, Form I-829 for investors). Once approved, they get a regular 10-year green card.

LPRs keep their original citizenship, but they can apply for U.S. citizenship through naturalization after living in the U.S. for a certain time. Permanent residents can lose their status if they leave the U.S. for too long, commit certain crimes, or break immigration laws. They can also give up their green card voluntarily, but they should first talk to an immigration and tax expert.

When you apply for a visa requiring temporary intent such as to visit or study in the USA, you have to prove that you only plan to stay in the U.S. temporarily and that you have strong reasons to return home — like a job, family, or property. If you can’t prove your ties to your home country and your temporary intentions, your visa can be denied under section 214(b) of the Immigration and Nationality Act (“INA”).

Basically, the U.S. assumes everyone wants to stay permanently, and it’s up to you to prove otherwise. It’s especially hard for young, single, or poor people, because they may seem more likely to stay in the U.S. for good. A denial under 214(b) doesn’t mean you lied or did anything wrong — it just means you didn’t show enough proof this time. You can apply again later with stronger evidence.

How is this different from fraud?
Fraud is much more serious. That’s when someone lies to an immigration or consular officer, or gives false information or fake documents to get a visa or other status. If you lie, it could lead to a lifetime or long term ban from the U.S. That’s under a different law — section 212(a)(6)(C) of the INA. Unlike 214(b), fraud can have long-term consequences and may be harder or impossible to fix.

“INA 221(g)” is often noted on a piece of paper given to a visa applicant after interview when the officer determines 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” is the “black hole” of visa applications. It can mean all kinds of things the consular officer is not likely to tell you. It could be because your case is being investigated; they are doing more extensive background checks; or a previously approved underlying visa petition might be sent back to USCIS for revocation. It could also be because 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 undergoing more in-depth security checks that take a long time.

What they have in common:

• Both can live and work anywhere in the U.S. (with some exceptions for LPRs who immigrated through jobs/investment).

• Both require men between ages 18-26 to register for the Selective Service (draft)

• Both can voluntarily enlist into the military.

• Both can own property and must file U.S. tax returns.

Key differences:

• Voting: Only U.S. citizens can vote in federal elections; LPRs usually can't vote. (In the few rare local jurisdictions that allow non-citizens to vote, they can do so provided there are no federal candidates on the ballot.)

• Jobs: Some government and security jobs are only for U.S. citizens.

• Public office: Citizens can run for office; LPRs usually can't, but it depends on the jurisdiction.

• Citizenship: LPRs keep their original citizenship unless they choose to become U.S. citizens through naturalization.

Losing Status:

• LPRs can lose their green card for crimes, living outside the U.S. too long, or unlawfully receiving certain public benefits or if they received status through fraud.

• Citizens can lose citizenship only if it was obtained by fraud or if they choose to voluntarily give it up.

• NOTE: the Trump administration has deported US citizens and has revoked LPR status for some people, all of which is being challenged in the courts.

Sponsoring Family:

• LPRs can sponsor spouses and married/unmarried adult and minor children, but there’s a waiting list or quota backlog for most categories.

• U.S. citizens can sponsor spouses, parents, and single minor children under 21 without being subject to quotas. Although citizens can sponsor adult and married children and siblings, these categories are mostly stuck in the quotas.

Note: Giving up LPR or U.S. citizenship can have big legal and tax consequences. It’s important to get advice first.

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:

  1. Spouses and Children

  2. 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 year, there’s a limited number of green cards (visas) for each category of immigration above— like family, work, or the lottery. These limits are set by Congress and vary by country and type of visa. The limit is usually based on your country of birth, not your citizenship with a few exceptions. Because of these annual limits by country, if too many people from one country apply in the same category, a waiting list forms (the “quota backlog”). Right now, the countries with the longest backlogs are India, China, Mexico, and the Philippines. But even people from other countries face waits in some family and job-based categories. New visas become available every year on October 1. The wait time may speed up or slow down depending on how many people are in line.

Your “priority date” is your place in line — based on when your first paperwork in the process was filed. (e.g., I130, I140, I529, I360 or PERM labor certification). No one can skip ahead if they applied after you. For lottery winners, your place is based on the number assigned when you were selected.

….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.

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:

1. 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.);

2. Quota delays – demand for a particular visa category with a numerical limit exceeds supply. See Q&A #6 above.

3. 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;

4. 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.

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.

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.

The benefits of becoming a US citizen are many: the right to vote, the right to serve on a jury, the ability to get a security clearance of various types in government, ability to sponsor certain relatives, no longer having to worry about how long you can stay outside the USA, generally speaking, not subject to deportation, the right to pursue some jobs that require US citizenship; the right to run for offices that require citizenship; and eligibility for certain public benefits. Your rights and obligations include, as mentioned above, the right to vote, the obligation to serve on a jury of your peers, your obligation to support the constitution of the USA and to fulfill your oath of allegiance to the USA. There is no mandatory requirement to serve in the US military as we have an all-volunteer military in terms of enlistment. However, all men between the ages of 18 and 26 MUST register for the draft (in case there is a draft) regardless of immigration and citizenship status except in some situations involving certain nonimmigrants in legal status

A Notice to Appear or NTA is the document given to immigrants by the government, usually ICE, that charges or describes the reasons the government thinks a person is deportable or removable. Its like an information or indictment in criminal court but this is the document that starts the removal process in civil immigration court proceedings. Assuming the NTA is properly served on the immigrant and the Immigration Court, the court has jurisdiction over the immigrant. The judge will decide if the immigrant is eligible for any benefits of relief to stay in the USA or whether the immigrant must leave the country. The NTA is important to hold on to because it will have an “A” number or alien number to track the case.

Grounds of removal are the reasons, set in statute, why the government can remove or deport someone. They are listed in the Immigration and Nationality Act (INA) section 237(a) and elsewhere. Some grounds have exceptions and other grounds can be “waived” or require a separate application to overcome the ground of removal. Examples are certain smuggling, certain crimes, certain misrepresentations. However, some grounds have no exceptions and no waivers available such as certain drug offenses, false claims to citizenship and terrorism grounds. Grounds of removal apply to people who are already in the USA where the government is seeking to send them out of the country for bad behaviors.

Grounds of inadmissibility apply to people applying for visas abroad, seeking to enter the USA at the border or applying for green cards in the US and abroad. One must be “admissible” to qualify for visas and green cards. Similarly, the grounds of inadmissibility are listed in the INA under section 212(a) and elsewhere by statute. Like grounds of removal, some grounds of inadmissibility have exceptions or waivers available, and some grounds have no exceptions or waivers available. The grounds of inadmissibility are similar to although not always exactly the same as grounds of removal. The general categories for both are health grounds, national security grounds, certain criminal offenses, misrepresentation and false claims to citizenship, unlawful stay or presence, and many other grounds.