Term Definition

Beneficiary A foreign resident for whom immigration benefits have been requested.

Citizen A legally recognized person for whom the state acknowledges responsibility and
affords the highest privileges.

Deportation The forced removal of an individual, occurring as a result of the individual

violating the laws of the United States.

Illegal Immigrant Any individual that does not have the proper documentation to reside in the
United States. This includes both individuals who once had permission to reside
in the United States that has since expired, and individuals who never had
permission.

Immigrant Any individual, not native to the United States, that permanently relocate to the
United States from another country.

Noncitizen Any individual that is NOT a United States Citizen.

Nonimmigrants Individuals that are permitted to enter the United States but cannot reside in the
country indefinitely.

Permanent Resident (or An immigrant that has been provided the right to work and reside in the United
Lawful Permanent States indefinitely. Permanent Residents enjoy almost all the rights that citizens
Resident, Green Card do, barring a few including voting. Permanent Residents must also have their
Holder) residency renewed every ten years.

Port of Entry Secured zones that the United States government has dedicated for entry and
exit.

Petitioner A person making a formal request to an authority. In immigration law, a petitioner

is usually a United States Citizen or Permanent Resident who is requesting
permission for a family member to immigrate to the United States.
Removal Proceedings Administrative proceedings issued by the government to determine whether an
immigrant can reside in the United States.

Visa A document providing a non-citizen with permission to enter the United States.

The Implementation of the Immigration and Naturalization Act

The Immigration and Naturalization Act, also known as the “INA,” was first
enacted into law in 1952, after the end of the Second World War. Congress
recognized that floods of former European citizens were fleeing war-torn
countries and immigrating to the United States. Because the Cold War was
taking place, Congress feared the infiltration of communists above all else.
The Second Red Scare propagated the highly restrictive INA of 1952, which
placed a cap on the number of immigrants that could come to the United
States from any foreign country. Pathways to permanent residency and
eventual citizenship were tied to an immigrant’s good moral character, highly
reflective of Congress’s belief that all Americans should be virtuous people.
An immigrant’s petition for residency or citizenship could be denied for
several reasons, including alcoholism, adultery, or habitual gambling.

Although the INA of 1952 seemed to solve most of Congress’ qualms about
undesirable immigrants, it was highly discriminatory. Congress had
essentially declared which foreign nationals it desired and which it wished to
keep away. Congress also realized that the INA of 1952 precluded foreign
talent from emigrating to the United States, which contradicted the country’s
Cold War ambitions. To remedy this, Congress introduced the new and
improved Immigration and Naturalization Act in 1965. Most notably, the
national origin immigration cap was removed. Furthermore, because there was
a strong emphasis on family reunification, Congress also removed the cap on
the number of foreign family members that could immigrate to the United
States. Instead, Congress introduced a preference system, in which petitions
for immediate family members of US Citizens would be given top priority,
followed by petitions for immediate family members of Permanent Residents.
Congress also created pathways to entry for persons with special talents,
giving rise to immigrant worker visas. Although there are numerous worker
visa categories today, the professions most desirable at the time were
agricultural workers, crewmembers, and scientists. The INA of 1965 also
provided immigrant workers with the same wages as their American
counterparts. These provisions were highly reflective of President Johnson’s
values, who believed that everyone should be judged based on his merit and
not his place of birth.

The INA of 1965 caused a fair amount of public uproar. Americans of

European origin were concerned that allowing persons from Asia and Africa
to emigrate would destroy American society. Until 1965, the United States
had structured its immigration policy so that the only people who could freely
immigrate to the United States were nationals from Western Europe. This was
because they were most likely to be Protestant Christians who most closely
resembled the majority of the American population at the time. Prior to the
1960s, Congress and the American public were incredibly concerned about
maintaining the homogeneity of American society, which resulted in heavy
sanctions against persons from Asia, Africa, and Eastern Europe. By the
1960s, however, Congress realized that discrimination and racial tension
within the United States had reached a critical point: persons of foreign origin
residing in the United States were the unfortunate victims of hate crimes and
segregation. The persons most affected were individuals whose families had
immigrated from Asia. The INA of 1965 was passed, in part, to increase
tolerance and acceptance of others within American society.
As a result of the INA of 1965, the immigrant population increased
dramatically. According to the Department of State, approximately 60 million
people immigrated to the United States.

The Homeland Security Act of 2002

The events of 9/11 highlighted a profound flaw in critical American
infrastructure. When Congress re-evaluated the US' security structures,
lawmakers were forced to confront the fact that the nation lacked an
organization responsible for public safety. As a result, the Homeland Security
Act of 2002 was proposed. The Act, in large part, called for the establishment
of a federal law enforcement organization dedicated solely to the nation's
security- the Department of Homeland Security, or "DHS."

The formation of DHS was revolutionary: for the first time in United States
history, a singular organization had been tasked with securing the nation.
Before the formation of DHS, national security and immigration-related
matters were addressed by either the FBI or INS. Neither organization was
capable of handling immigration-related matters, especially considering the
rapid immigrant population increase over the last few decades.

As the name implies, DHS' primary responsibility is national security, which

includes maintaining border security, overseeing immigration and customs,
operating an anti-terrorism task force, and disaster prevention and
management. DHS, in turn, commissioned several sub-organizations tasked
with enforcing and upholding immigration law: Customs and Border
Protection, Immigration and Customs Enforcement, and Citizenship and
Immigration Services.

As a result of this new initiative, immigration law and policy started to, once
again, become highly regulated. As part of their vision, DHS strived to
increase its presence in the community and took a "no exceptions" approach to
enforcement. Individuals unlawfully present in the United States were placed
into custody and subject to deportation. Immigrants with a criminal history
were denied adjustments of status, and persons looking to enter the United
States were subject to extreme scrutiny and thorough background checks.
Agencies Responsible for Enforcing Immigration Policy
Below is a list of the major agencies responsible for enforcing and upholding
immigration law and policy. It is important to remember that although many
of these organizations have a central focus or mission, their roles frequently
coincide with one another, depending on what stage of the immigration
process an immigrant is in. In some cases, immigrants may encounter ALL
these organizations on their pathway to citizenship.

Customs and Border Protection

Customs and Border Protection, also known as "CBP," is the primary
immigration enforcement agency responsible for protecting America's
borders. CBP agents have the authority to execute immigration law within 100
miles of any external boundary, meaning any land border, of the United
States. However, they are mostly seen at land border crossings. Although most
CBP agents are tasked with patrolling land borders, there are two other types
of agents less commonly known to the public: marine interdiction agents and
air interdiction agents. Marine interdiction agents are tasked with securing
marine boundaries. Their counterparts, air interdiction agents, are trained
pilots responsible for securing the nation's air traffic routes.

CBP almost exclusively operates the ports of entry into the United States.
Agents are permitted to inspect, arrest, seize, and detain any individual or
object that appears to violate immigration law and policy. Although the Fourth
Amendment generally protects individuals from unlawful search and seizure,
this rule does not apply at ports of entry. This exception is permitted because
the United States government has deemed that the threat to public safety far
outweighs any individual's right to privacy. As a result, CBP officers are
permitted to execute routine traffic stops, search vehicles, and detain
individuals within 100 miles of any major land border. This does not mean
that agents may exercise their power without oversight. Rather, it speaks to
the nation's overwhelming interest in securing its borders.

Immigration and Customs Enforcement

Immigration and Customs Enforcement, also known as "ICE," is tasked with
many of the same responsibilities as CBP. However, unlike CBP, ICE has the
authority to operate within the United States because they are not subject to
the same 100-mile geographical limits. Where CBP agents are mainly present
at ports of entry, ICE agents mainly operate with cities and densely populated
areas. ICE agents routinely conduct investigations and inquiries into local
businesses and organizations that may be exploiting or harboring illegal
immigrants.

An important distinction to note is that CBP does not have the authority to
detain a noncitizen long-term. They must surrender the noncitizen to ICE,
who then assumes custody of them. ICE is also responsible for detaining and
deporting noncitizens. From the time that a noncitizen is placed into custody,
ICE is responsible for wellbeing and safety until they are either released or
returned to their country of origin.

Citizenship and Immigration Services

The United States Citizenship and Immigration Services, more commonly
known as "USCIS," is an administrative agency embedded within the
Department of Homeland Security. USCIS' primary function is to process
immigration paperwork. This includes adjudicating employment
authorization, residency permits, and naturalization applications. Two main
groups of people utilize USCIS' services: noncitizens who have already
entered the United States and are looking to adjust status, or individuals
outside of the United States looking to immigrate into the country.
USCIS is purely an administrative agency, it cannot enforce immigration law.
Rather, it reviews the materials submitted to the agency for compliance. If
USCIS encounters fraud or deception on an application, the extent of the
negative action that it can take would be to simply deny the application. It
cannot order the arrest or detention of a noncitizen, regardless of their status in
the United States.

Executive Office for Immigration Review

If, while present in the United States, an individual does not have the requisite
documentation and is arrested, they will be placed into removal proceedings
and be ordered to appear before the Immigration Court. If an individual is
ordered to appear before the Immigration Court, the Immigration Judge has
the ultimate authority to decide whether the individual will be allowed to
remain in the United States or removed to their country of origin. The
immigration judge's authority is not absolute. In fact, immigration judges are
closely monitored by the DHS to ensure that they comply with prevailing
immigration law and policy.

Individuals ordered to appear before an immigration court are called

respondents. Immigration Court proceedings are quite informal compared to
their civilian counterparts. Most proceedings consist of the following parties:
the immigration judge, the prosecuting attorney, the respondent and counsel
(if applicable), and a security guard. And unlike civil or criminal defendants,
immigration court proceedings do not require the respondent to appear in
court numerous times. Most proceedings are resolved in two to three
appearances.

There are three main types of immigration court hearings: bond hearings,
master calendar hearings, and individual hearings. A detained respondent has
the right to request to be released on bond while their immigration case is
pending. In determining if a respondent is a suitable candidate to be released
on a bond, immigration judges evaluate the following criteria: the length of
time the respondent has been present in the United States, whether or not they
have stable housing, whether or not they possess employment, the number of
United States citizen family members (if any), and their criminal history (if
any). Suppose a respondent has satisfied the inquiry of the immigration judge.
In that case, they may post bond and be permitted to leave the detention
facility, provided that they appear at all future appearances. If the respondent
fails to satisfy requirements for release, they remain in custody until their case
has been adjudicated.

Master Calendar hearings are, essentially, preliminary hearings. The

immigration judge confirms the respondent's details and method of relief
being sought. The court then issues the individual to appear at an individual
hearing. An individual hearing is usually set several months or years after the
master calendar hearing. During the period between the master calendar and
individual hearings, a respondent prepares their entire case to be heard at the
individual hearing. At this point, the immigration judge renders their final
decision. If a respondent is dissatisfied with the immigration judge's decision,
they may submit a request for an appeal within 30 days.

Board of Immigration Appeals

If a respondent wishes to appeal the decision of an immigration judge, all
appeals must be submitted to the Board of Immigration Appeals. Whereas the
individual immigration courts are scattered throughout the country, the Board
of Immigration Appeals is a singular entity housed in Falls Church, Virginia.
The Board can either reinforce the decision of the immigration judge or
reverse it.

Because the Board reviews all the nation's appeals, the adjudication time for
an appeal can range between three months to two years, depending on the
Board's backlog of cases. However, respondents may request for cases to be
expedited if an emergency arises.

Privatized Prison Companies

When ICE encounters a noncitizen individual that does not have valid status
in the United States, they are issued an immigration detainer. In accordance
with this detainer, ICE must either release the noncitizen individual, either on
their own recognizance or returned to their country of origin, or they must be
placed into custody. A noncitizen upon whom ICE has issued an immigration
detainer is typically detained at a holding facility, much like a police station
jail cell. Although not readily apparent to the eye, these temporary holding
facilities exist at almost all ports of entry to the United States.

If, after 48 hours, no other solution arises, noncitizens are transferred to long-
term detention facilities. These detention facilities most closely resemble
minimum-security prisons. Detainees are permitted to interact with one
another, engage in outdoor activities, and receive visitors multiple days of the
week.

There are approximately 200 ICE detention centers across the United States.
Many of these facilities are concentrated in California and Texas, coinciding
with the fact that most aliens are apprehended in these two states. While these
facilities were once entirely owned by the Department of Homeland Security
and its predecessor, the INS, the rapid influx of illegal immigrants in the
1990s-2000s has resulted in the mass privatization of immigration detention
facilities. Today, the majority are owned by private organizations that have
contracts with DHS. CoreCivic and Geo Group are the leading contractors in
the immigration detention arena.

Inter-Agency Communication with Local Law Enforcement

As a preliminary matter, it should be noted that any individual that is not a
naturalized United States citizen MAY have their residency revoked if they
commit any of the crimes below:

 Domestic violence
 Stalking
 Violation of a protective order
 Child abuse
 Child neglect
 Child abandonment
 Trafficking (both human and drug)
 Failure to register as a sex offender
 Falsification of documents
 Fraud
 Terrorist activities
 Drug trafficking
 Crimes in moral turpitude, also known as "CIMT." The definition
of CIMT varies in parts of the country, but the general
understanding is an act or behavior that "gravely violates the
sentiment or accepted standard of the community." CIMT need
not necessarily be punished by criminal law.

Please note that this list is not exhaustive. In some aggravated instances, a
naturalized citizen may have their citizenship revoked and may be returned to
their country of origin. In even rarer cases, a US-born individual may have
their citizenship revoked. This most recently occurred in the case of Hoda
Muthana, a New Jersey native that left the United States and joined ISIS. In
accordance with a US District Court ruling, Ms. Muthana's citizenship was
revoked, and she was denied entry to the United States.

Although arresting and detaining immigrants is solely within the purview of

DHS, ICE agents will sometimes seek assistance from local law enforcement
to identify undocumented individuals in the area. This assistance usually takes
the form of sharing license plate data or driver's license data, which ICE will
then cross-reference when they encounter potential undocumented individuals.
Local law enforcement agents may also share arrest data. Once an individual
is arrested on a charge, police officers will contact ICE to ascertain whether
the person has lawful status in the United States. If not, ICE agents will
present themselves to local law enforcement and request that the immigrant be
transferred into their custody so that they may initiate removal proceedings.
ICE will also perform routine rosters checks in nearby prisons to see if any are
housing immigrants. If so, ICE will request that the immigrant be transferred
into their custody to initiate removal proceedings.

While there are a handful of jurisdictions that will not share identifying data
with ICE, most jurisdictions across the nation will do so willingly.

2.1 Looking at Visas

What is a visa?
A visa is a document that gives a foreign person permission to enter the
United States. As you may remember from the last chapter, USCIS is the
agency in charge of issuing visas.

Visa applications are lengthy and often require the applicant to complete a background
check of sorts, where the Department of State will cross-reference the applicant's
biographical information with partner agencies in other countries to determine if the
person poses a threat to the United States.

Non-immigrant visitors are required to obtain visas that correlate to their purpose of
visiting the United States. If, while in the United States, a visitor's needs change, they
may need to obtain a new visa. Similarly, suppose a non-immigrant leaves the United
States and wishes to return for a purpose not permitted by their present visa. In that
case, they will need to apply for a new visa that reflects the purpose of their upcoming
visit.
How Does USCIS Determine if I am Eligible to Receive a Visa?
Before determining eligibility, visa applicants are first required to complete a questionnaire that,

more or less, takes the form of a background investigation. Applicants must list their

biographical information, including their addresses and occupation and the purpose of their

visit. In addition, applicants are questioned about their affiliations to any governmental

organizations, military groups, and terrorist organizations. Furthermore, applicants are required

to list whether they have visited countries other than their country of origin and if they have

been denied entry or denied a visa to any country.

After completing this questionnaire, USCIS' electronic database compares the applicant's

biographical information against all internally-held information. Then, it compares the

applicant's biographical information with information databases in partner countries to see if the

applicant has been encountered elsewhere in the world by partner agencies.

Visa applications are then reviewed by the Department of State consular agents to
ensure completeness. Visa applications may be rejected if the applicant fails to include a
required piece of information. In fact, failure to complete a visa application in its
entirety is one of the leading causes of application denial. After the visa applications
have been reviewed, applicants will be scheduled for interviews and ordered to appear
at their nearest consulate or embassy. The majority of visa applicants will be ordered to
appear for interviews. The exceptions are typically seniors over the age of 70, minors
under the age of 15, and persons who are looking to review their previous visas.

At their interviews, applicants are questioned about their upcoming trip. In meeting with
applicants, consular officers seek to ascertain two main pieces of information: 1) is the
applicant truthful about their intentions in visiting the United States? 2) has the
applicant misrepresented or omitted any material fact that would affect their eligibility
to be granted the visa they applied for?

While most visa applications are granted, there are three main reasons why visa
applications are denied:

1. The applicant is not eligible for the visa for which they submitted their
application and needs to reapply for the correct visa;
 2. The applicant did not submit a complete application and therefore the consular
official did not have all of the information necessary to determine if the
applicant was eligible for a visa;

3. The applicant made fraudulent statements to the consular official.

4. Commonly Issued Non-Immigrant Visas

According to the US Department of State, over 8.8 million non-
immigrant visas were issued in the 2019 fiscal year. Although there are
over 180 different types of visas that USCIS can issue, below is a chart of
the United States' most frequently issued visas.

Purpose of Category Who is Eligible? Processing Duration of Stay

Visa Time

Business B-1 Any foreign Two weeks to Six months

persons who two months
Tourism/ B-2 wish to visit the Six months
Medical United States
Treatment

Student F Any foreign Varies Five years, but

M persons who visa status is
have been dependent on
granted status in
admission to an educational
accredited high institution
school or higher
academic
institution in the
United States
Temporary H-1B Foreign persons Three to six H-1B workers
Workers H-2A who have been months can be admitted
H-2B offered for a period up
employment in to two years. H-
the United 2A and H-2B
States. workers are
admitted for the
period of time
they are
authorized to
work, as
indicated by
their
employment
contract

Exchange J Foreign persons Six to eight Depends on

Visitors wishing to weeks program. Can
participate in range from four
Department of months to three
State-approved years
exchange
programs

Fiance of a US K-1 Any foreign Six months to 90 days

Citizen or K-3 persons who are one year. Two years
Spouse of a fiances or
US Citizen spouses of US
Citizens or
Lawful
Permanent
Residents

Religious R Religious One to four 30 months

workers workers months
affiliated with a
 faith-based
organization
who wish to be
temporarily
employed in the
United States in
a religious
capacity.

2.2 Commonly Issued Non-Immigrant

Visas

General Tourism in the United States

Two main visas allow foreign individuals to enter the United States for
temporary or pleasure purposes: the B-1 and B-2 visas. These are USCIS'
most commonly-issued visas and usually involve the least amount of
paperwork.

B-1 visas are issued to individuals who wish to enter the United States for
temporary business purposes. This includes consulting with business
associates, settling estates, negotiating contracts, or attending business
conferences. Note that although persons entering the United States on B-1
visas may have business-related interactions, they are not permitted to be
employed for the duration of their stay.

B-2 visas are issued to persons who wish to enter the United States
specifically for the purposes of tourism, visiting with friends or family, or for
seeking medical treatment. Typically, B-2 visa applicants are required to
provide documentation about upcoming trips to the United States, including
where they plan to travel, where they plan to stay while in the United States,
and information about the method by which they intend to finance their trip.
If the applicant has family in the United States, they may be required to list
the contact information of family members

Studying in the United States

Before applying for a student visa, a prospective international student must
apply and be accepted to an accredited high school or higher education
institution. The prospective international student must then apply for a student
visa. There are two main categories of student visas: the F visa and the M
visa. The type of visa a student is issued is, again, dependent upon the
institution they wish to attend. F visas are typically issued to students who
want to attend high school, university, seminary, or conservatory in the United
States. M visas are issued to students who want to attend vocational or trade
schools.

Alongside their acceptance letter, prospective international students must

also submit documentation about how they plan on paying for their
education, whether it be in the form of scholarships, loans, or personal
savings. It is important to note that non-immigrants admitted to the United
States as students are not permitted to work while attending school in the
US. However, there are some exceptions to this rule. Most students are
permitted for an on-campus employer up to 20 hours a week.

Temporary Worker Visas

The American workforce is composed of millions of non-citizens who have
been admitted into the United States on H visas. H visas are awarded to
persons who want to enter the United States for employment lasting a fixed
time. These are not permanent employees. Instead, they must return to their
country of origin after their visa expires or their employment terminates.
According to the Department of State's Annual Report, over 619,000 H visas
were issued in 2019. The countries with the highest H visa recipient count
were India and China.
Unlike the other visas listed above, H visas require a two-step process.
The employer must first file a petition on behalf of the prospective
employee with USCIS. After the petition is approved, the employee may
then apply for their H visa.

There are three main subcategories of visas within the H visa: the H-1B, the
H-2A, and the H-2B.

H-1B visas are awarded to persons who work in a specialized field that
requires a higher education or its equivalent. This commonly includes
individuals such as software/hardware engineers, chemists, biologists, and
architects. H-1B visas are valid for one year, after which they must be
renewed on an annual basis. Most large organizations maintain in-house
immigration counsel, who monitor their employee's immigration status and
ensure that visas are always current.

H-2A visas are awarded to individuals who wish to enter the United States
to seek temporary employment in agriculture. When a US employer
anticipates a shortage of labor for an upcoming harvest or other need, it can
recruit foreign workers as temporary employees. These workers are awarded
H-2A visas and can remain in the United States for the duration of their
employment contract. However, there are certain restrictions to which
foreign nationals may be awarded H-2A visas. A list of H-2A-eligible
countries may be found below.

H-2B visas are less frequent and are only awarded when there is a shortage
of US Citizen workers to complete a particular task. In order to petition for
a foreign citizen to receive H-2B visas, an employer must generally establish
three facts:

 There is a shortage of workers in the United States who are willing,

qualified, and available to work;
  Employing a temporary H-2B will not adversely affect the wages and
working conditions of United States Citizen workers; and

 The need for the temporary H-2B worker is, indeed, temporary.

To establish that their need is indeed temporary, an employer generally has to

show that the particular project is a one-time occurrence, meaning that it has a
foreseeable end, or that the work is seasonal in nature.

Exchange Visitors – J1

After experiencing globalization over the last several decades, American

society began to recognize the benefits afforded as a result of cross-cultural
exchange. In an effort to encourage foreign nationals to come to the United
States and engage in an immersive experience, the J visa was introduced. J
visas are awarded to individuals who wish to enter the United States to
participate in programs designed to facilitate the exchange of persons,
knowledge, and skills. It is important to note that foreign persons cannot
obtain a J visa simply to participate in any given program. Instead, they must
apply to programs already approved by the Department of State.

Reuniting with Significant Others of Foreign Origin

In most developed societies, marriage is recognized as a fundamental human
right. USCIS brought forth K visas to reunify fiances and spouses previously
separated by geographical differences with this concept in mind. There are
two main categories of K visas: the K-1 visa, intended for the foreign citizen
fiance of a United States citizen, and the K-3 visa, intended for the foreign
citizen spouse of a United States citizen.

K-1 visas allow a foreign citizen fiance to travel to the United States and
marry their US citizen fiance within 90 days of arrival. Contrary to visitor
visas, the foreign fiance may not file the K-1 visa on his or her own accord.
Rather, the US citizen fiance must file on their behalf. To be approved for
the K-1 visa, the foreign fiance and the US citizen fiance must have met in
person within the past two years. In addition, the US citizen's fiance must
meet a prescribed income threshold. Since the foreign citizen's fiance is not
authorized to work, the US citizen's fiance must have sufficient income to
provide for their basic needs such as clothes, food, and housing. If the couple
does not marry within the prescribed 90 days, the foreign fiance must return to
their country of origin.

The second category of K visa, the K-3 visa, is provided to foreign-citizen

spouses of US citizens. While they do not allow the foreign fiance to remain
in the United States indefinitely, they are meant to allow a couple to remain
together while USCIS adjudicates the foreign spouse's residency
application. A K-3 visa holder is permitted to remain in the United States for
up to two years. In the vast majority of cases, the foreign citizen spouse's
residency paperwork will be approved before the end of the two-year time
limit.

It is worth noting that same-sex fiances and spouses may apply for K visas
without discrimination. However, the application process may be nuanced.
For instance, if the foreign spouse's country of origin does not recognize
same-sex marriage, the couple must travel to a third country that DOES
recognize same-sex marriage and THEN apply for the K-3 visa.

Faith-Based Employment in the United States

The United States maintains a fairly large population of temporary religious
workers. These individuals are often sent to the United States by their
respective religious organizations as employees to fulfill a vacancy at a
particular place of worship. Much like the H visas, religious workers cannot
apply for the R-1 Temporary Religious Worker visa on their own accord.
Rather, a religious organization must sponsor their trip to the United States. In
order to be granted an R-1 visa, the applicant must be a member of the same
 religious denomination as the organization they plan to work for in the United
States. Their employment must be religious in nature (such as a minister or
preacher), and they must work an average of at least 20 hours per week.

Infrequently Issued Non-Immigrant Visas

While these visas are not as frequently issued, they merit mentioning as they
are issued in unique circumstances.

Purpose of Visa Category Who is Eligible? Processing Duration of

Time Stay

Diplomacy A Diplomats and Immediately Varies. Visa

G foreign upon receipt of status is
N government application dependent
officials upon
engaging in diplomatic
official duties on status in their
behalf of their country of
government origin.
Investors E Foreign Four to six Two Years
nationals months
seeking to
engage in trade
with or invest in
a United States
business.
Investors and
tradesmen must
originate from a
country with
whom the United
States has
established a
trade agreement

Persons with O Persons with Two to three Three years

extraordinary P distinguished months One year
abilities talent wishing to
enter the United
States to engage
in competition or
to further their
skill

Family V Family members Varies Varies

unification with pending
petitions who
wish to remain in
the United States
while their
applications are
reviewed
Foreign Officials Visiting the United States
Although they may appear to receive preferential treatment, foreign diplomats
are subject to the same requirements as any other visa holder: their visa must
permit the purpose of their visit.

Diplomats and other foreign government officials traveling to the United

States must obtain an A-1 or A-2 visa before entering the country. The type of
visa an individual is afforded depends entirely on the recipient's position
within their country's government and the purpose of their intended travel.
Regardless of which visa the individual is issued, one commonality between
the two remains: the recipient must be traveling to the United States on behalf
of their national government to engage solely in official activities for that
government. A-1 visas are typically issued to ministers, cabinet members,
delegation representatives, or officials serving at foreign embassies or
consulates in the United States. A-2 visas are issued to other governmental
employees, such as foreign military members or foreign consular employees.

Although the intended purpose of a foreign national's visit almost always

dictates the type of visa they are issued, there is one exception to this rule:
heads of state or government are issued A-1 visas regardless of their
purpose of travel.

The second category of diplomatic visas, G visas, are usually issued to

representatives of governments traveling to the United States to attend
meetings or work at a designated international organization. G visa recipients
include members of certain foreign committees visiting the United States to
meet with an international organization, such as the United Nations. G visa
recipients are, in large part, foreign individuals traveling to the United States
to attend a United Nations meeting.
Lastly, there are N visas. N visas, otherwise known as NATO visas, are issued
to individuals who are qualifying NATO staff members, member state
representatives, and attaches. N visas permit holders to conduct business at
NATO facilities within the United States and travel freely around the country
to fulfill their duties.

Investing in American Corporations

Although far and few in between, occasionally individuals will travel to the
United States to pursue a trade. These persons are referred to as treaty traders
and are issued E visas. Treaty traders pursue substantial trade in goods,
services, and technology, usually between the US and their country of
nationality. Qualifying areas of substantial trade include international banking,
insurance, transportation, tourism, and communications.

Treaty investors direct the operations of an enterprise in which they have

invested, or are actively investing, a substantial amount of money. Certain
employees of treaty traders and treaty investors (that is, those coming to
engage in duties of an executive or supervisory character, or, if employed in a
lesser position, having special qualifications that make their services essential
to the operation of the enterprise) receive the same classification as their
employer.

There are two main categories of E visa: the E-1 and E-2 visas. While they
differ slightly, they both have the same underlying premise. The E-2
nonimmigrant must be traveling to the United States to 1) engage in
substantial trade and 2) develop or direct the operations of an enterprise in
which they have invested a substantial amount of capital. However, the E-1
visa is issued to the trader of an organization, an essential employee
responsible for developing the enterprise. The E-1 recipient must be an
essential employee, employed in a supervisory or executive capacity, or one
that possesses highly specialized skills essential to the efficient operation of
the firm. Ordinary skilled or unskilled workers do not qualify for the E-1 visa.
By contrast, the E-2 visa is issued to the person who has control over the
capital and assets themselves: the principal investor. The investor must have
the investment funds committed and secured prior to applying for the E-2
visa. Otherwise, the investment remains uncommitted. Furthermore, the
investment must be a real operating enterprise, an active commercial or
entrepreneurial undertaking. It cannot be a mere idea or business plan.

Persons of Extraordinary Abilities

Every year, the United States seeks to attract talented individuals to travel to
the United States. These extraordinary individuals are issued O visas. In order
to qualify for an O visa, the foreign applicant must possess extraordinary
ability in the sciences, arts, education, business, or athletics. Qualifying
individuals must be highly distinguished and must provide documentation of
their success to USCIS. Often, O visa recipients are highly-ranked athletes,
musicians, or scientists.

Similarly, P visas are issued to performers. P-1A visas are usually provided to
professional (or amateur) athletes who wish to enter the United States solely
for the purpose of performing at a specific athletic competition as either an
individual, part of a team, or in an advisory capacity, such as a coach. P-1B
visas, in contrast, are issued to members of internationally recognized
entertainment groups who wish to enter the United States for a performance.
In both instances, at least 75 percent of the group members must have had a
substantial and sustained relationship with the group for at least one year. The
entertainers must be internationally recognized, having a high level of
achievement in a field evidenced by a degree of skill and recognition
substantially above that ordinarily encountered, to the extent that such
achievement is renowned, leading, or well-known in more than one country.
The reputation of the group is vital.

Family Unification
Perhaps one of the lesser-known visas, the V visa allows persons with pending
family-based applications to remain in the United States with their families
while USCIS reviews their applications. Although V visa recipients may
ultimately be awarded permanent residency in the United States, the V visa,
which allows holders to remain in the United States until such a time arises, is
a form of nonimmigrant status as it is temporary.

The qualifications to be awarded a V visa are relatively simple: one must have
a pending family-based petition on file with USCIS that has yet to be decided,
AND the application needs to have been pending for three years.

Defining Temporary Status

As mentioned earlier in this chapter, nonimmigrants are only permitted to
temporarily remain in the United States. But what does this mean? It means
that nonimmigrants are permitted to remain in the United States for some
time, after which they must leave the United States. The length of time for
which the nonimmigrant may remain in the United States is entirely
dependent upon the type of visa they are issued. Some visas permit the holder
to renew the visa and extend their time to remain in the United States, but this
is not the case for all visas.

The Consequences of Remaining in the United States Longer

Than Permitted
Although seemingly harmless, the consequences of remaining in the United
States after a visa has expired can be quite severe. After a nonimmigrant visa
expires, the visa holder is no longer in status, meaning that the individual no
longer has a valid presence in the United States and is present in the United
States unlawfully.
If a nonimmigrant out of status is encountered by ICE, they are deported.
Contrary to public belief, individuals present in the United States out of status
are not merely asked to go home. Rather, they are arrested and placed into
ICE custody, at which point travel documents and a flight to the individual's
country of origin are secured. If a flight cannot be secured within 24 hours, the
individual is placed into immigration detention while awaiting the next
available flight. Once nonimmigrants are arrested by ICE, they are not
permitted to leave ICE custody until they are returned to their country of
origin. Individuals cannot leave to gather their belongings or settle their
affairs.

Additionally, individuals who failed to depart the United States before the
expiration of their visa may encounter difficulties in obtaining subsequent
visas to enter the United States. According to USCIS, by failing to depart the
country promptly, the offending individual has displayed a disregard for the
law and may be likely to overstay the terms of their visa a second time, should
a subsequent visa be issued. In fact, if an individual has accrued any unlawful
presence in the United States, they may even be prohibited from applying for
certain types of visas in the future.

3.1
About Family-Based Petition
It is important to note that unlike the non-immigrant visas discussed in the
previous chapter, family-based petitions allow foreign persons to immigrate
to the United States permanently. As such, family-based petitions are usually
classified as immigrant visas. Although it may not seem like it, family-based
petitions account for the vast majority of immigrant visas issued to foreign
individuals.

What are family-based petitions?

Family-based petitions were introduced as part of the INA of 1965.
Lawmakers recognized that immigrants often sacrificed familial ties after
leaving their home countries. As such, the family-based immigration process
was introduced with one particular goal in mind: family reunification. The
process requires the participation of at least two family members, a petitioner,
and a beneficiary. The petitioner must be a US citizen or lawful permanent
resident that wants to sponsor a foreign family member for a green card. The
beneficiary is the foreign family member that wants to obtain a permanent
residency in the United States and the benefits that accompany such a status:
the right to live and work in the United States.

The family-based immigration process generally begins with the petitioner

requesting USCIS to allow a family member to permanently immigrate to the
United States. A foreign citizen seeking to live permanently in the United
States requires an immigrant visa. To be eligible to apply for a visa, a foreign
citizen must be sponsored by an immediate relative who is at least 21 years of
age and is either a United States citizen or a Lawful Permanent Resident. The
petitioner files Form I-130, Petition for Alien Relative, with USCIS. The I-
130 petition establishes the existence of a qualifying family relationship
within the immediate relative or family preference categories. Alongside the
petition, the petitioner must provide documentation that such a family-based
relationship exists. The petitioner must include birth certificates of common
parents, copies of passports, possible school records with the common parents'
names listed. This can be particularly challenging for those who originate
from remote regions, as many do not maintain a central record-keeping
system. In those instances, DNA tests may become necessary to determine if a
beneficiary originated from the country they are claiming to be citizens of.

Two facts must be established to support an I-130 visa petition: the petitioner
and the beneficiary have a qualifying family relationship. The petitioner has
the immigration status required for the petition, meaning they are either US
citizenship or lawful permanent residence. If the petitioner can prove these
two elements, USCIS must approve the visa petition. It is not discretionary.
Once the I-130 is approved, the first step in a family-based immigration case
is complete.

Which Family Members Can be Designated Beneficiaries of the I-

130 Petition?
As stated above, United States Citizens and Permanent Residents may petition
the government to allow family members to obtain lawful status in the United
States. Eligible family members have currently split into two groups:
immediate relatives of United States Citizens and preference category-based
relatives of United States Citizens Citizens and Permanent Residents.

The immediate relative classification is based on a close family relationship

with a United States Citizen, such as a spouse, child, or parent. The number of
immigrants in these categories is not limited to each fiscal year, meaning these
beneficiaries do not need to compete with others in their category for a visa.
You will see why this matters later on.

For the purposes of immigration law, a "child" is any unmarried individual

under the age of 21. This differs from the common law age of the majority,
which is usually 16-18 years of age. If an immediate relative child under age
21 gets married, he or she can no longer be classified as an immediate relative.
Since the goal of the "immediate relative" category is to promote family
reunification, the married child beneficiary is no longer facing hardship as a
result of separation from their family and will become a "third preference"
category, assigned to married sons or daughters of United States Citizens.
Consequently, a visa would no longer be immediately available to them.

The family preference category refers to more distant family relationships

between a United States Citizen and a foreign family member and some
specified relationships with a Lawful Permanent Resident (LPR). These
distant family members are placed into "preference categories." The starkest
contrast between the two categories of family members is that the number of
immigrants in these categories is limited each year. Beneficiaries in each
category compete for visas with other immigrants in the same category. A
breakdown of the various preference categories may be found below.

Other family members eligible to apply for a Green Card are

described in the following family “preference immigrant” categories:

 First preference (F1) - unmarried sons and daughters (21 years of age and
older) of U.S. citizens;
 Second preference (F2A) - spouses and children (unmarried and under 21
years of age) of lawful permanent residents;
 Second preference (F2B) - unmarried sons and daughters (21 years of age
and older) of lawful permanent residents;
 Third preference (F3) - married sons and daughters of U.S. citizens; and
 Fourth preference (F4) - brothers and sisters of U.S. citizens (if the U.S.
citizen is 21 years of age and older).

Source: USCIS

It is also worth noting that although a Permanent Resident can petition for
their family members to reside in the United States, they can only file a visa
petition for their spouse or unmarried son or daughter. And unlike a United
States Citizen, the spouses and unmarried children of Permanent Residents
are not considered immediate family and are subject to a limited number of
visas.

3.2
The Family Based Petition
Process

Reviewing the Process by Which Family-Based Status Can be

Obtained
The first step in the family-based immigration process is for a United States
citizen or lawful permanent resident to petition for a visa for a close family
member by filing for I-130. After the I-130 is approved, there are two main
pathways to obtaining permanent residency to live in the United States:
Consular processing or adjustment of status.

Source: USCIS
The requirements for adjustment of status significantly limit the number of
people that may be eligible. Generally, the applicant must be in the United
States through a lawful entry, and a visa must be immediately available. But
as you may remember from earlier in this chapter, only immediate relatives
always have a visa available. For this reason, family preference categories
generally end up going through the consular process.

Adjustment of Status
Adjustment of status is the process of changing from a nonimmigrant
immigration status such as student or tourist to permanent resident. US
immigration law allows a temporary visitor to change status to a permanent
resident if the individual lawfully entered the United States and meets specific
requirements. If the applicant is not eligible for adjustment, he or she must use
consular processing. Both consular processing and adjustment of status may
be available options if the applicant is already in the U.S.

To file an adjustment of status application, the intended immigrant must meet

three requirements:

1. They must be physically present inside the United States when the
adjustment of status application is filed.
2. They need to have made a lawful entry into the United States.
3. They need to have an immigrant visa immediately available to them.

To clarify, a lawful entry is completed when an individual presents themselves

before a customs officer at a port of entry such as an airport, land border, or
seaport. If an immigrant entered with a valid visa but that visa has since
expired, they are eligible to pursue permanent residency through adjustment
of status.

Consular Processing
Consular processing is the procedure of applying for a green card through a
US embassy or consulate in a foreign country. If the applicant is outside the
United States, the only path for immigrating to the United States is to use

consular processing.

Consular processing takes approximately six to 14 months for immediate

relatives. Due to the wait for a visa to become available, the process will
likely take much longer for family-preference immigrants. Because consular
processing generally has a shorter processing time, it is preferred by some
applicants over adjustment of status. Consular processing has a lower risk of
refusal as, unlike USCIS officers, consular officers cannot refuse to issue a
visa based on discretion. However, cases that are denied are generally non-
reviewable.

USCIS will notify the petitioner of a decision. If USCIS denies the petition,
the notice will include the reasons for denying the petition and any rights to
appeal the decision. If the petition is approved, USCIS will send the approved
petition to the National Visa Center ("NVC").

Source: USCIS

The NVC, responsible for collecting visa application fees and supporting
documentation, will notify the petitioner and beneficiary when the visa
petition is received and again when an immigrant visa is about to become
available. Once a visa is available, and the NVC has received all the necessary
supporting documents, the consular office will schedule the beneficiary for an
interview. The consular officer will complete the applicant's case processing
and decide if the beneficiary is eligible for an immigrant visa. If the
beneficiary is deemed eligible, they will be handed an immigration packet at
the conclusion of the interview.
Upon arrival to the United States, the beneficiary will give the Visa Packet to
the CBP officer at the port of entry. A CBP officer will inspect the
beneficiary, and if found admissible, the new immigrant will be admitted as a
permanent resident of the United States. This status gives him or her the
authorization to live and work in the United States permanently.

Consular processing takes approximately 6 to 14 months for

immediate relatives. This timeline includes I-130 processing through
the consular interview. Due to the wait for a visa to become available,
the process will likely take much longer for family-preference
immigrants. Because consular processing generally has a shorter
processing time, it is preferred by some applicants over adjustment of
status. What's more, consular processing has a lower risk of refusal.
Unlike USCIS officers, consular officers cannot refuse to issue a visa
based on discretion. This means that the consular officer must have
specific, factual evidence for denying an application. However, cases
that are denied are generally non-reviewable. In other words, it is a final
decision. At the end of the day, the path that an immigrant pursues is
often determined by the total cost and time involved. See the chart
below for more details.

Source: CitizenPath.com

3.3
Pros and Cons of the Petition
Process

Does the beneficiary need to remain outside the United States

while their petition is pending?
After a family-based visa petition is approved, many beneficiaries face multi-
year backlogs based on numerical caps by nationality and by visa preference
category. During this time, many opt to live unlawfully in the United States
with their sponsoring family members. However, once a visa becomes
available, most family members must leave the country to secure it. Such
departures can trigger three-year and 10-year bars to admissibility (i.e.,
readmission) based on living without status in the United States. Although
waivers may be requested, most applicants must submit waiver applications
outside the United States and meet a strict "extreme hardship" standard. The
uncertainty of the outcome of a waiver application and the often significant
time that even persons whose waivers are ultimately approved must spend
abroad dissuades many families from initiating this process at all and
discourages others from traveling abroad to secure their visas.

However, in 2012, USCIS published a rule that allowed certain persons with
approved family-based immigrant visa petitions to seek waivers in the United
States for the time they have spent in unlawful status, rather than having to
apply for waivers overseas. This significant change allowed individuals to
remain with their families in the United States instead of forcing separation
for uncertain periods. It also encouraged more individuals to avail themselves
of family-based petitions. Since immigrant filing fees fund the majority of
USCIS' operational costs, it is both in the interest of USCIS and potential
beneficiaries to encourage more people to apply for family-based petitions.

However, there are certain circumstances in which unlawful presence is not

waivable. When the United States grants a foreign national a visitor visa (B-2)
or most other non-immigrant visas, it does so with your promise that you
intend to depart by the time it expires. If, however, an individual uses a non-
immigrant visa to gain entry with the actual goal of adjusting status, the US
government considers this visa fraud. In this circumstance, the government is
likely to deny a green card application based on the misuse of the non-
immigrant visa. It can also lead to long-term immigration problems.

Why do cases take so long to be reviewed?

Immediate relatives undergo an expedited adjudication process, whereas all
other preference category-based relatives are issued a "priority date" upon the
filing of the family-based petition. Immediate relatives can expect their
petitions to be approved in a matter of months, depending on which office the
petition was routed to. Beneficiaries that are ranked by family preference
category are assigned a priority date. A priority date determines a person's
turn to apply for an immigrant visa. In family immigration, the priority date is
the date when the petition was filed with USCIS. The waiting time before
receiving an immigrant visa or adjusting status depends on the demand for and
supply of immigrant visas, per-country visa limitations, and the number of
visas allocated for an individual's preference category.

While the vast majority of applications are approved, the reasons for the delay
are rooted in the backlog and applications that are missing information or are
improperly filed, meaning the beneficiary has been miscategorized.
Applicants who are missing information in their initial submissions are issued
Requests for Evidence or RFEs. The RFE notice will have specific examples
of the kind of evidence the applicant needs to provide to USCIS. Since most
applicants are provided three months to respond to RFEs, applications may be
further delayed. It is also important to note that the United States receives
more immigration applications than any other nation in the world.

Many applications require a biometrics screening. Immigration officials will

collect fingerprints and use them to run a background check through the
Federal Bureau of Investigation (FBI). Suppose the beneficiary has anything
on their record, like a previous conviction or arrest. In that case, their security
check will take longer, while the FBI checks their record with local authorities
in their country.

Differences in Petitioning as a United States Citizen as Opposed

to a Legal Permanent Resident
As you may have noticed from the preference categories above, spouses and
children of United States Citizens are classified as immediate family
members. In contrast, the spouses and minor children of permanent residents
are assigned to category F2A. While this may seem discriminatory in nature, it
is one of the few benefits that is reserved for United States Citizens.

Can petitions be expedited when the sponsor becomes a US

citizen?
A permanent resident can sometimes upgrade the I-130 petition and expedite
the process by becoming a United States citizen. Once the petitioner becomes
a United States citizen, the priority will improve. For example, a spouse's
category will improve when the permanent resident becomes a US citizen. A
green card is immediately available for an IR-1 spouse.

3.4
Sponsors and Beneficiaries
Sponsor Obligations
In addition to the I-130, the petitioner must prepare Form I-864, Affidavit of
Support, on behalf of the intending immigrant. USCIS generally requires the
Affidavit of Support from family-based immigrants to show that they have
adequate means of financial support and are not likely to rely on the US
government for financial support. If the immigrant family member cannot
support himself or herself financially, the sponsor promises to provide
financial support. To do this, the sponsor must generally have an income that
is at least 125% of the Federal poverty level. If the sponsor's income does not
meet the requirement, additional sponsors or a joint sponsor may also
participate. Please see the chart below for income thresholds.

Source: USCIS

It is important to note that a petitioner's household size is calculated

by including the intended immigrant(s). Let us take a look at a few examples
to get a better understanding of this concept.

 Thomas is a United States Citizen who wants to file a family-based

petition on behalf of his mother, Renna, a Turkish citizen. Thomas is
unmarried and has no children. Therefore, Thomas's household size is
2, and he must earn a minimum income of $21,775.
  Ana is a United States Citizen who wants to file family-based petitions
on behalf of her parents, both of whom are Guatemalan citizens. She
has a spouse and two children. Therefore, her household size is 6, and
she must earn a minimum of $44,475.

The need for a financial sponsor is rooted in a new immigrant's requirements

that are not inadmissible to the United States. In fact, a foreign national who is
deemed to be a "public charge" is inadmissible by law. A public charge is a
person who is likely to become primarily dependent on the government for
subsistence, as demonstrated by either the receipt of public cash assistance for
income maintenance or institutionalization for long-term care at government
expense. This helps ensure that new immigrants will not need to rely on public
benefits. Examples of public benefits include food stamps, Medicaid,
Supplemental Security Income (SSI), and Temporary Assistance to Needy
Families. If the new immigrant uses certain public benefits in the future, the
agency that gave the benefits can require that the financial sponsor repay that
money.

If the financial sponsor's income does not meet the requirement, personal
assets such as checking and savings accounts, stocks, bonds, or property may
be considered in determining financial ability. Most people do not have the
cash assets required to qualify. Suppose a relative (spouse, adult child, parent,
or sibling) lives in the same household as the primary sponsor. In that case, he
or she can generally participate as a household member that contributes
income. On the other hand, a joint sponsor is an additional sponsor that does
not have to be related (to either party) and does not have to live at the same
address.

A financial sponsor's obligations under Form I-864 will end if the person who
becomes a lawful permanent resident based on that affidavit:
  Becomes a US citizen.
 Has worked for at least ten years in the United States.
 No longer has lawful permanent resident status and has departed the
United States.
 Is granted of adjustment of status based on a new affidavit of support.

It is critical to note that divorce does not terminate a financial sponsor's

obligation.

Beneficiary Obligations
Even with a qualifying family preference relationship, the intending
immigrant must demonstrate that he or she is not inadmissible to the United
States. Meaning they will need to demonstrate that they do not pose a danger
to US society on health, security, immigration violation, or criminal grounds.
There are several grounds of inadmissibility, including health, previous
immigration violations, and a preexisting criminal record.

Where health inadmissibility is concerned, the immediate relative will be

required to have a medical examination conducted by a USCIS designated
physician. The examination must establish that an applicant is not a public
health risk, such as a carrier of a disease that presents a public health risk or
having a dangerous physical or mental disorder. In addition, immigrants are
required to obtain vaccination for the following communicable diseases:
mumps, measles, rubella, polio, tetanus and diphtheria, pertussis, haemophilus
influenzae type B, and hepatitis B. While mandatory vaccination may seem
controversial, the United States Government has deemed it a priority to
protect the public from these particular diseases.

In addition, the intending immigrant's immigration history will be reviewed.

The application will likely be denied if the intending immigrant has
overstayed a visa by six months or more or if they have ever entered the
country unlawfully. The government will also seek to determine if a visa has
ever been misused. Lastly, the intending immigrant's criminal history will be
reviewed.

Understanding the Consequences of Committing Fraud

USCIS believes marriage fraud to be prevalent in family-based adjustments.
In fact, USCIS has even established an investigative unit tasked solely with
evaluating the authenticity of an applicant couple's marriage. These
immigration officers frequently summon couples for a status interview, which,
as it sounds, is an interview by which an immigration officer determines the
status of a couple's marriage.

A married couple, for example, must show not only that they are legally
married but also that the marriage is bona fide and not a fraud or sham
undertaken solely for immigration purposes. Additionally, if either spouse has
been married before, they must submit their divorce decree or the death
certificate of their prior spouse to show that their current marriage is legally
valid.

Source: USCIS

Problems that arose after the filing of the I-130 are common in most
relationships. Immigration will examine every marriage, but those less than
two years old or where there are no children or property in common are going
to be more heavily scrutinized. The charge, or accusation, of fraud, usually
comes about in the interviewing process after the Immigration Officer
separates the spouses and asks questions. If the answers of each spouse -
relating to the courtship, the relationship, or household chores - do not match,
the officer will doubt the validity of the relationship. Sometimes, under the
strain of continued questioning by a federal government employee, a spouse
actually admits to fraud, although this might not exist. If an application is
found to be fraudulent, an application can be denied, and an intending
immigrant can be denied entry to the United States in the future.

Conclusion
In this chapter, you discussed family-based petitions and their role in family
reunification. By now, you should be able to describe the process by which a
United States Citizen or permanent resident can petition for their foreign
family member to live in the United States. You should also be able to
differentiate between the groups of family members that are eligible to receive
benefits from family-based petitions.

Next, we transition to employment-based petitions.

4.1 E Visas

A Short Review of Employer-Based Petitions

While we discussed nonimmigrant employment visas in the previous chapter, some

categories of employment visas allow a person to remain permanently in the
United States. Each year, around 140,000 people apply for an employment-based
green card. No matter its size or population, each country gets seven percent of
this quota- or about 9,800 people. In turn, that 9,800 is divided up into several
categories, each with its own number of potential visas. Below we list the types of
visas and who qualifies for them.

United States immigration law provides noncitizens with various ways to become
lawful permanent residents through employment in the United States. The most
prominent method is the EB (employment-based visa) process. EB visas are categorized
much like family-based petition beneficiaries. Noncitizens who qualify for top-tier
preference often see shorter wait times. Let us explore the different categories of EB
visas below.
EB-1 Category
Individuals may be eligible for an employment-based, first-preference visa if they are a
noncitizen of extraordinary ability, are an outstanding professor or researcher, or if they

are an executive or manager.

In order to successfully establish that a noncitizen possesses an extraordinary ability, an

applicant generally needs to have obtained national or international acclaim.
Furthermore, their achievements should have been recognized in their field of expertise,
and they must demonstrate evidence of either a one-time achievement (such as a major
internationally-recognized award like the Nobel Peace Prize) or three of the ten criteria
listed below:
 1. Receipt of lesser nationally or internationally recognized prizes or awards for
excellence, such as a Presidential Medal of Honor;
2. Membership in associations in the field which demand outstanding achievement
of their members, such as the American Medical Association;
3. Published material about the applicant in a professional nature, such as Super
Lawyers;
4. Evidence that the applicant has been asked to judge the work of others, either
individually or on a panel;
5. Evidence of the applicant's original scientific, scholarly, artistic, athletic, or
business-related contributions of major significance to their respective field;
6. Authorship of scholarly articles in professional publications or major media,
such as the Harvard Journal of Medicine;
7. Evidence that the applicant's work has been displayed at artistic exhibitions or
showcases, such as the Dallas Museum of Art;
8. Evidence of the applicant's leading role in a distinguished organization;
9. Evidence that the applicant commands a salary much greater than others in the
field;
10. Evidence of the applicant's commercial successes in the performing arts, such

as the sale of music.

Noncitizens may also qualify for the EB-1 visa if he or she is an outstanding professor
or researcher. Famously dubbed "the Einstein Visa," applicants must include evidence
of at least two of the six criteria listed below in order to qualify:

1. The applicant's receipt of major prizes or awards for outstanding achievement,

such as the Pulitzer Prize;
2. Membership in associations that require their members to demonstrate
outstanding achievement;
3. Published material in professional publications written by others about the non-
citizens work in the academic field;
 4. Evidence of participation as a judge of the work of others in the same academic
field;
5. Original scientific or scholarly research contributions in the field;
6. Authorship of scholarly books or articles in the field, such as the American
Psychological Association.

As described above, EB-1 visas are awarded to the best and the brightest in their
respective fields. As a result, not very many EB-1 visas are issued on an annual basis.
Applicants must undergo extreme scrutiny before receiving their visas.

EB-2 Category
Noncitizens may be eligible for an employment-based, second preference visa if they
hold an advanced degree, have an exceptional ability, or if their residence and
employment are of benefit to the United States. EB-2 applicants are subject to lower
standards than their EB-1 counterparts and are not required to display the same level of
excellence in their respective fields. Below are the occupational categories and
requirements:

Advanced Degree The job must require an advanced degree and the applicant must possess such a
degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus
5 years of post-baccalaureate, progressive work experience in the field).

Exceptional Ability The applicant must be able to show exceptional ability in the sciences, arts, or
business. Exceptional ability "means a degree of expertise significantly above that
ordinarily encountered in the sciences, arts, or business."

National Interest Waiver
Though the jobs that qualify for a national interest waiver are not defined by
statute, national interest waivers are usually granted to those who have exceptional
ability and whose employment in the United States would greatly benefit the
nation. The proposed endeavor must have both substantial merit and national
importance.

EB-3 Category
 EB-3 categories possess a far larger pool of applicants, simply as a function of the fact,
the prerequisite criteria are far looser than that required of the EB-1 and EB-2
categories. As you may notice, EB-3 recipients are not required to be exemplary in their
fields- in fact; mediocrity is often the norm with these applicants. Let us take a look at
the eligibility criteria below:

Skilled Workers  The applicant must be able to demonstrate that they possess at least two years
of job experience, education, or training that meets the job requirements
specified.
 They must be performing work for which qualified workers are not available
in the United States.

Professionals  The applicant must demonstrate that they possess a baccalaureate (or foreign
equivalent degree), and that a baccalaureate degree is the normal requirement
for entry into the occupation.
 The applicant must be performing work for which qualified workers are not
available in the United States.

Unskilled Workers
 The applicant must demonstrate the ability to perform unskilled labor
(requiring less than two years training or experience), that is not of a
temporary or seasonal nature.
 The applicant must be performing work for which qualified workers are not
available in the United States.

EB-4 Category
Unlike the previous three EB categories, the EB-4 visa sets forth no strict requirements.
Rather, applicants are evaluated on an individual basis. EB-4 visas are reserved for
special immigrants. In recent years, they were awarded to Afghan or Iraqi translators or
interpreters employed by or on behalf of the United States government.

After rendering assistance to the United States military, these foreign nationals would
often be viewed as traitors by their local communities. As a result, they would face
retaliation. In an effort to recognize their invaluable assistance to the United States
military, these individuals and their families were awarded EB-4 visas and green cards
with permission to reside in the United States.

4.2 H and O Visas

O Visas
On its face, the O visa can appear identical to the EB-1 visa. However, the most
dramatic difference between the two visas is that the EB-1 visa is an immigrant visa,
whereas the O visa is a nonimmigrant visa. While both are awarded to individuals
possessing extraordinary talent, the EB-1 visa truly requires an applicant to be at the top
of their respective field. By contrast, an O visa applicant merely needs to be among the
top of the respective field. Broadly speaking, the applicant must have received national
or international acclaim in their respective field or have a demonstrated record of
extraordinary achievement. O visas are typically awarded to those in the sciences, arts,
education, business, or athletics or those who have a demonstrated record of
extraordinary achievement in the motion picture or television industry. Examples of
such achievements include an Oscar or an Olympic medal.

In the event the applicant of extraordinary talent does not possess such an award, they
must demonstrate they have accomplished at least three of the following criteria to
qualify for the O-1 visa:

1. Attained membership in associations that require outstanding achievements of

their members in a particular field of expertise, as judged by recognized
national or international experts.
2. Been the subject of published material in professional publications or major
media.
 3. Participated as a judge of the work of others in their field.
4. Made an original scientific, scholarly, or business-related contribution of major
significance to the field.
5. Authored scholarly articles in professional journals or major media.
6. Been previously employed in a critical or essential capacity for an organization
with a distinguished reputation. Or,
7. Have commanded a high salary or outstanding remuneration for their services.

If the applicant is applying for an O visa based on extraordinary achievement in the

motion picture or television industry and the applicant does NOT possess a national or
international award such as an Oscar, Emmy, Grammy, or Director's Guild Award, the
applicant must submit at least three of the following forms of documentation:

1. Evidence that the applicant has performed services as a lead or starring

participant in productions or events that have a distinguished reputation, as
corroborated by critical reviews, advertisements, publicity releases, publication
contracts, or endorsements
2. Evidence that the applicant has achieved national or international recognition for
achievements, as corroborated by critical reviews or other published materials.
3. Evidence that the applicant has performed in a lead, starring, or critical role for
organizations and establishments that have a distinguished reputation, as
corroborated by articles in newspapers, trade journals, publications, or
testimonials.
4. Evidence that the applicant has a record of major commercial or critically
acclaimed successes and other occupational achievements reported in trade
journals, major newspapers, or other publications.
5. Evidence that the applicant has received significant recognition for
achievements from organizations, critics, government agencies or other
recognized experts in the field.

As you may remember, O visa holders need to be sponsored by an employer before

receiving their visa. In addition, the applicant must also be coming to the United States
to perform in the area of extraordinary ability. But once they do, visa holders can work
legally in the United States for their sponsoring company. If, however, the worker wants
to change jobs, a new visa is necessary. O visas can be issued relatively quickly and will
be granted for the length of time necessary for a particular event, up to a maximum of
three years, with unlimited extensions in one-year increments. O visas are usually
issued to those working in the fields of technology. However, the O visa has become a
popular way for foreign actors to break into Hollywood or for dancers to perform on
New York City stages. In fact, Most O visa holders end up in either California or New
York.

The O visa holder may travel in and out of the United States for the duration of their
visa. Additionally, an O visa holder's spouse and unmarried children under age 21 may
accompany the O visa holder to the United States, but they are not permitted to accept
employment.

H Visas
While there are multiple categories of H visas, the most commonly issued are the H-1B,
H-2A, and H-2B visas. All H visas are temporary, nonimmigrant visas and do not
provide a path to eventual citizenship.

The H-1B visa allows United States employers to hire foreign national professionals to
work in the US when qualified Americans cannot be found. The H-1B visa holder can
work only for the sponsoring employer or revoke the visa. According to the United
States Department of Labor website, "The intent of the H-1B provisions is to help
employers who cannot otherwise obtain needed business skills and abilities from the US
workforce by authorizing the temporary employment of qualified individuals who are
not otherwise authorized to work in the United States."
H-1B is by far the H category with the most applications. Since USCIS is only
permitted to issue 65,000 new visas each year, a lottery system can narrow down the
millions of applications into a more manageable pool. After employers register their
prospective employees electronically, a computer-generated system randomly narrows
down the applicant pool.

Only new H-1B applicants are required to go through the lottery system. Foreign
workers who are still within the three-year limit of their H-1B visa are free to transfer to
another employer without being subjected to the lottery pool. However, foreign workers
who have exceeded the six-year limit on the H-1B visa may be required to re-enter the
lottery system if they plan to return to work in the US after the one-year waiting period.

If an employer lays off an H-1B worker, the employer is required to pay for the laid-off
worker's transportation outside the United States. However, if an H-1B worker is laid
off or quits, the worker has a grace period of 60 days or until the I-94 expiration date,
whichever is shorter, to find a new employer or leave the country.

H-1B cap-exempt workers include those who have been previously granted an H-1B
status and are still within the six-year period. Exemptions can also apply to workers in
higher education, nonprofit organizations associated with a higher education institution,
or nonprofit research or government organizations. You may also qualify for a cap
extension through your employer if you currently live in a country outside the US but
have been "in status" within the past six years without reaching your maximum duration
of stay.

The current minimum salary for H-1B visa holders is $60,000 per year, unchanged since
the program began in 1989. The program mandates that employers pay H-1B holders
the "prevailing wage" for their work in the area where they are hired. That means in
technology, some H-1B workers can earn upwards of $100,000 annually; however, a
recent report showed that between 2010 and 2016, the average salary for H-1B visa
holders working in technology was $80,600.

4.3
J Visas
Section Objective(s)

You will learn to:

 Discuss the Three Main Groups of Employer-Based Petitions

 Differentiate between nonimmigrant and immigrant work visas.

 Differentiate the four most common types of employment-based visas.

 Learn About tax obligations as a noncitizen.

J Visas
As mentioned in Chapter Two, J visas are usually issued to noncitizens who wish to
travel to the United States to partake in cultural exchange programs. However, the
majority of J visas are issued to individuals between the ages of 18 and 26 who want to

participate in the Au Pair Program (J-2 visa).

The Au Pair Program allows the foreign national to reside with an American family for
one year while participating in their home life, providing limited childcare services, and
enrolling in classes at a post-secondary institution. Au pairs are often regarded as
nannies who live with a family, caring for the children in the home, while regarding
day-to-day activities as a cultural experience. Certified agencies often act as
intermediaries between the foreign au pair and the American family. Many run
exchange programs designed to facilitate the experience of both the au pair and the
American family. Due to the potential for abuse, the au pair exchange program is
heavily regulated and must meet all of the following requirements:

1. The exchange program must limit the participation of foreign nationals to not
more than one year.

2. The exchange program must limit the hours of child care services to be provided
by the participant. Participants cannot be obligated to provide more than 10
hours of child care services per day or more than 45 hours per week.

3. The exchange program must require that participants register for and attend
classes offered by an accredited post-secondary institution.

4. The exchange program must require supervision and adequate training for all
officers, employees, agents, and volunteers acting on their behalf.

5. The exchange program must require that the au pair participant is placed with a
host family within one hour's driving time of the home or local organization
representative authorized to act on the sponsor's behalf in both routine and
emergency matters involving the participant's participation in the program.
In addition, the exchange program must maintain a record of all monthly personal
contacts with each au pair participant and host family for which they are responsible, as
well as a record of all issues and problems discussed.

In order to be considered eligible for the J-2 visa, applicants must meet the following
requirements:

1. They must be between the ages of 18 and 26.

2. Must have graduated secondary school (or its equivalent).

3. Must be proficient in spoken English.

4. Must be capable of participating fully in the program and are required to

complete a physical exam.

5. Must have been personally interviewed in English by an organizational

representative, who must have prepared a report of the interview and provided
it to the host family.

6. Must have successfully passed a background investigation that includes:

verification of school, three non-family related personal and employment
references, a criminal background check and its recognized equivalent, and a
personality profile.

There are additional requirements once the au pair has successfully arrived in the United
States. First, an au pair cannot be placed with a host family having a child under the age
of three months unless a parent or other responsible adult is also present in the home. A
participant may not be placed with a host family that has children under the age of two
unless he or she has at least 200 hours of documented infant child care experience.

Additionally, an au pair cannot be placed with a host family with a special needs child.
Next, the host family must provide the au pair with a private bedroom. While this
program may seem overly regulated, these rules exist primarily to protect the interests
of both the au pair and the host families.

Host Family Selection

Exchange programs are required to screen all host families adequately. At a minimum,
exchange agencies must require:

1. The host parents to be either US citizens or lawful permanent residents.

2. Fluent in spoken English.

3. All adult family members living in the home to be interviewed.

4. All adults living full-time in the host family household have successfully passed
a background investigation including employment and personal character
references.

5. The host family is to have adequate financial resources to meet all of its hosting
obligations.

Wage Requirements

The exchange program is tasked with ensuring that the au pair participants are
appropriately compensated for their work, are not forced to work more than the
maximum number of hours outlined in the regulations, and receive at least the minimum
amounts of required time off.

Au pairs must be compensated at a weekly rate based upon 45 hours of child care
services per week. Additionally, au pairs must not provide more than 10 hours of
childcare per day. They must also be provided with one and one-half days off per week
in addition to one complete weekend off each month. Finally, au pairs must receive at
least two weeks of annual paid vacation.

Educational Component

As part of their cultural exchange, au pairs are required to meet the minimum
educational requirements- they must complete six hours of higher education at an
accredited institution in the United States. Host families must agree to facilitate the
enrollment and must also pay the cost of the academic coursework.

Abuse of Au Pairs

Au pairs have reported wage theft, coercion, sexual harassment, retaliation,

misrepresentation, and human trafficking. They often have very little power to change
their circumstances once they have arrived in the United States. Au pairs report, for
example, limitations placed on the food available to them. Their free time is minimal,
and at times, they do not have any time even to do the fundamental program
requirements, such as attending classes.

Although labeled about having a cultural exchange, the program's defining

characteristic for au pairs is work. Au pairs are workers who are sold a cultural
exchange. On the other hand, families are being told that they will get cheap labor out of
this program. Au pairs often take on debts in order to arrive here and take advantage of
this cultural exchange. Instead, they are paid very little, and the money does not go very
far towards paying off their acquired debts.

Numerical Limitations on Employer-Based Petitions

All categories of employment-based immigrant visas are issued in the chronological

order in which the petitions were filed until the annual numerical limit for the category
is reached. The filing date of a petition becomes the applicant's priority date. Immigrant
visas cannot be issued until an applicant's priority date is reached. In specific heavily
oversubscribed categories, there may be a waiting period of several years before a
priority date is reached.

Paying Taxes as an Immigrant

In general, noncitizens are taxed similarly to United States citizens on their worldwide
income. If a nonimmigrant earns income in the United States, they must pay taxes on
their income regardless of their immigration status. There are no special tax provisions
for visa holders.

Gaining Permanent Residency Through Employment

While not common, an alien can convert their temporary employment visa into a
permanent visa and therefore obtain permanent residency. Although the H, J, and O
visas are nonimmigrant visas and do not allow the visa holder to remain in the United
States indefinitely, the EB visa DOES. Nonimmigrant visa holders can request that their
employers convert their temporary employment position into a permanent one. This is
known as the PERM process, where the employer essentially converts the immigrant
employee's employment into a permanent position. However, the process can be quite
nuanced, take anywhere from six months to two years, and be quite costly.

5.1 Juvenile Immigrants and Status

The Consequences of Unlawful Status

Due to their lack of lawful status in the United States, juvenile immigrants can
feel untethered or as if they do not belong. Many juvenile immigrants are
frequently subject to trying experiences such as:

 racial profiling
 discrimination
 exposure to gangs
 immigration raids
 being forcibly removed from their families,
 returning home to find their family members have been taken
away by ICE
 placement in detention camps
 deportation

These stressful experiences can lead to many negative emotional and

behavioral outcomes, including anxiety, fear, depression, anger, social
isolation, and lack of a sense of belonging. Over time, these can lead to more
severe issues like post-traumatic stress disorder, poor identity formation,
difficulty forming relationships, feelings of persecution, and distrust of
institutions and authority figures. A juvenile immigrant's opportunities and
potential for success are frequently limited. They experience discrimination,
isolation, and fear far more frequently than most other members of society.
Many of these young immigrants drop out of school, perpetuating the cycle of
poverty. Those who do graduate high school find access to college limited,
with few choices or funding opportunities.
It is challenging to pursue options for immigration relief when juvenile
immigrants cannot drive, vote, or fully participate in the society in which they
grew up. It can be devastating when parents are detained or deported. Juvenile
immigrants are essentially losing their support system, which severely
undermines their potential for future success.

Special Immigrant Juvenile Status

Special Immigrant Juvenile Status, otherwise known as SIJS, provides a path
to lawful permanent residency for children whom their parents have
abandoned as a result of abuse, neglect, or abandonment. While each state has
its own laws governing what sort of behavior can result in dependency
proceedings, generally, they arise as a result of physical abuse (injury), sexual
abuse, emotional abuse, neglect (failure to provide adequate food, clothing,
shelter, medical care, or supervision), or abandonment. Abuse and neglect can
have many different causes, but parental drug addiction and untreated mental
illness are big risk factors.

The following are examples of abuse and neglect:

 a father who beats a child, causing injury and hospitalization

 a mother who fails to call police and allows her boyfriend to spend time
alone with children after they tell her that he is sexually abusive
 a guardian who does not send a child to school regularly, does not keep
the house stocked with food, and regularly leaves a young child alone,
 parents who make methamphetamine at home and expose their children
to toxic chemicals, drug sales, and drug abuse, or
 the guardian parent is deported or placed into immigration custody and
the child's other parent is unable to care for him/her.
When a child's parents are no longer able to care for their needs, the child is
placed into the care of the juvenile court, which is responsible for maintaining
the child's welfare. The immigrant child can then petition USCIS to grant its
SIJS petition. However, prior to doing so, the following criteria must be met:

1. The juvenile court must declare the child to be a court dependent. This
means that the court has assumed responsibility for the child's welfare
and has removed them from their parents' custody.
2. The SIJS application must include a special order signed by the
juvenile court judge finding that the child cannot be reunified with one
or both parents because of abuse, neglect, abandonment, or a similar
basis under state law.
3. The juvenile court must find that it is not in the child's best interest to
return to their country of origin. This can be demonstrated to the court
through a declaration from the child, a home study in the home
country, or other evidence showing there is no known appropriate
family in the home country.
4. The child must be under 21 and unmarried.

SIJS applications are rarely adjudicated. The most common scenario in which
they arise is when the undocumented parent of an undocumented juvenile
immigrant is deported- at that point, the parent has abandoned the juvenile
immigrant. The child is well within their rights to seek relief through the SIJS
application, but many choose not to as they fear deportation themselves.

5.2 DACA and an Adoption Overview

Deferred Action for Childhood Arrivals
Deferred Action for Childhood Arrivals, otherwise known as "DACA," is a
form of prosecutorial discretion that provides a work permit and relief from
removal for two years to certain eligible undocumented youth. Prosecutorial
discretion refers to when a prosecutor has the power to decide whether or not
to charge a person for a crime and which criminal charges to file. In this case,
the "prosecutor" is the Department of Homeland Security. Instead of
deporting juvenile immigrants, DHS has instead chosen to defer (meaning
delay) the deportation of eligible juvenile immigrants.

Instituted by President Obama, DACA provided the undocumented youth of

America, also known as Dreamers, with a way to engage with and contribute
to society without the constant fear of deportation. It provides grantees with
employment authorization that allows them to work and can be renewed after
two years. In order to establish eligibility for DACA, the following criteria
must be met:

1. The applicant must be at least 15 years old (but under 31) at the time of
filing their application;
2. The applicant must have established residence in the United States
before their 16th birthday;
3. The applicant must have continuously resided in the United States since
June 15, 2007 to the present;
4. The applicant must have been physically present in the United States at
the time of filing their application;
5. The applicant must have entered without inspection before June 15,
2012 or must have no lawful status as of June 15, 2012;
6. The applicant must be currently in school, have graduated or obtained a
certificate of completion from high school or GED certificate;
7. They cannot have been convicted of a felony, significant misdemeanor,
or cannot otherwise pose a threat to national security or public safety.

DACA was a revolutionary policy geared specifically towards improving the

quality of life of juvenile immigrants. However, during his presidency,
President Trump announced the end of the DACA application. Consequently,
USCIS is not considering any new DACA applications. Only those with pre-
existing applications are permitted to renew as of this time. It is also worth
noting that DACA applications do not lead to long-term permanent residency.

Adoption of a Foreign Child by a US Citizen

Immigration through adoption, or intercountry adoption, refers to adopting a
child born in one country by an adoptive parent living in another country.
USCIS plays a key role in the intercountry adoption process. An adopted child
is one who was legally adopted under the age of 16 years, has been in the
legal custody of the adoptive parents for at least two years, and has resided in
the physical custody of the adoptive parents for at least two years.

Once a child meets the definition of an adopted child, he or she automatically

acquires United States citizenship once all of the following requirements are
satisfied: at least one parent is a United States citizen, either by birth or
naturalization, the child is under 18 years of age, and the child was lawfully
admitted to the United States as a permanent resident and is in the legal and
physical custody of the US citizen parent. Once an adopted child has met all
of the requirements for automatic acquisition of citizenship, he or she is a US
citizen. While we have discussed what adoption is, let us take a better look at
the process below.

The Various Adoption Processes

USCIS provides three different processes through which an individual may immigrate
based on intercountry adoption. An individual may immigrate under one of these
provisions only if the individual's adoption meets that specific process's requirements.
These three processes are:

1. The Hague Process, which occurs if the child resides in a country that is a party
to the Hague Intercountry Adoption Convention;
2. The Orphan Process, which occurs if the child resides outside of the Hague
Intercountry Adoption Convention; or an
3. Immediate Relative Petition.
 The Hague and orphan processes are special processes for children adopted by United
States citizens and meet the specific requirements of those programs. The family-based
petition process provides a third avenue through which an adopted individual is
considered the child (or son or daughter) of their adopting parent(s) for immigration
purposes.

There are differences between the Hague and orphan processes and the family-based
petition process. For example, only United States citizens can use the Hague and orphan
processes to petition for an adopted child. These processes have different requirements
from the family-based petition process. However, lawful permanent residents and
United States citizens can BOTH use the immediate relative petition process. However,
the immediate relative petition process is generally not available to children from Hague
countries. Furthermore, like family-based petitions, there are limitations on the types of
individuals that can be adopted. United States citizens may file petitions to adopt a child
(unmarried and under the age of 21), unmarried son or daughter over the age of 21,
married son or daughter, or sibling. However, permanent residents may only file a
petition to adopt a child (unmarried and under the age of 21) or an unmarried son or
daughter over the age of 21.

Who Can Use Which Process?

Type of Adoption United States Citizen Permanent Resident

Type of Adoption United States Citizen Permanent Resident

The Hague Process ✔

The Orphan Process ✔

Immediate Relative Petition ✔ ✔

 Who is Considered a Beneficiary?

Possible Beneficiaries United States Citizen Permanent Resident

Unmarried Son or Daughter Under ✔ ✔

21

Unmarried Son or Daughter Over ✔ ✔

21 But Only in Special Instances

Married Son or Daughter ✔

Brother or Sister ✔

5.3 Ways to Adopt

The Hague Process

For a child to be classified as a Hague Convention adoptee, they must be
under the age of 16 when filing their paperwork with USCIS, be a resident of
Hague country, and be deemed eligible for intercountry adoption the Central
Authority of that country. The prospective parent must be a United States
citizen and must physically reside in the United States. The prospective parent
 must either be married or over the age of 24 when initiating the adoption
process.

The steps for adoption through the Hague Process are outlined below:

1 Prospective adoptive parents reach out to immigration attorney or Department of

State- approved accredited adoption agency to assist in the adoption process.

2 Obtain a home study from a social worker or other authorized provider.

3 File Form I-800A to be found suitable AND eligible to adopt. Note that suitability is
not the same as eligibility. Suitability refers to a prospective parent's ability to care
for the needs of a child, whereas eligibility refers to citizenship status.

4 Once Form I-1800A is approved, the prospective adoptive parent should secure a
proposed placement, if not already done. It is not necessarily to have a specific
orphan child in mind until this point in the process.

5 File Form I-800 and have USCIS provisionally allow the child to immigrate to the
United States, pending the finalization of the adoption.

6 Formally adopt the child and take physical custody of the child. This is most readily
displayed by the adoption agency allowing the parents to take the child to live with
them at their hotel or home until the necessary paperwork is approved.

7 Obtain an immigrant visa for the child.

8 Bring the child to the United States.

The Orphan Process

Although a means to the same end, adopting a child through the Orphan
Process is quite different from adoption through the Hague Process. Most
notably, the child being adopted through the Orphan Process MUST be an
orphan. According to USCIS, an orphan is a foreign-born child who does not
have any parents because of the death or disappearance, abandonment,
desertion, or separation. The definition of an orphan is quite broad- so long as
the parent did NOT abandon their child willingly, the child in question is
considered an orphan.

In addition, the prospective adoptive parent must meet requirements that are
far more stringent than those looking to adopt through the Hague Process. The
prospective adoptive parent must be a United States Citizen, married or over
the age of 25 if unmarried. The prospective parents must have physically
visited the orphan child before initiating the adoption process. In addition, the
orphan child must have already been adopted in their country.

In cases of adoptions taking place through the Orphan Process, USCIS will
conduct an investigation overseas to verify that the child, indeed, is an orphan.
The purpose of this investigation is purely to further the interests of the child.
USCIS will confirm that the child is an orphan, that the child does not have an
illness or disability that is not described in the orphan petition, determine if
the child has any special needs that have not been previously identified, verify
that the applicants have obtained a valid adoption or grant of custody, and
determine if any facts exist that would preclude the child from immigration to
the United States.

Immediate Relative Adoption Process

Unlike the Orphan Process, adoptees are not required to be orphans. The
immediate relative adoption process is generally reserved for children that
have already been adopted prior to the filing of the petition and, in some
cases, resided with their adoptive parents. As previously mentioned, this is
akin to the immediate relative immigration process mentioned in Chapter
Three. Parents of immediate relative adoptees begin the immigration process
by filing Form I-130, Petition for Alien Relative.

Under this process, an adopted child is considered to be the child of the

adopting parent for immigration purposes if 1). the adoptive parent adopted
the child before their 16th birthday and provided evidence of full and final
adoption and 2). the adoptive parent had legal custody of and jointly resided
with the child for at least two years while the child was under age 21.