Immigration Law

While no two immigration cases are the same, case types can often be broken down to the following or hybrid of the following categories:


  • Immigrant and Non-Immigrant Visas
  • Lawful Permanent Residence
  • Family Based Immigration
  • Employment Based Immigration
  • Humanitarian Based Immigration
  • Removal Defense
  • Waivers
  • Naturalization

Immigrant and Non-Immigrant Visas

An Immigrant Visa is a "permanent visa"  through which, upon arrival to the United States, a person is issued a "Green Card."  The two most common ways of obtaining immigrant visas are through family-based and employment-based sponsorships.

Non-Immigrant Visas are temporary visas in which the foreign national plans to return to his or her home country at the end of the underlying period of authorized stay.  Common non-immigrant visas include tourist visas, student visas, and various types of work visas.  

Lawful Permanent Residence

A person who has been granted a "Green Card" is a Lawful Permanent Resident of the United States.  Two of the most common ways for a person to become a Lawful Permanent Resident is through family based and employment based sponsorship.  Although having Lawful Permanent Residence has many benefits and is a way to live permanently in the United States, it does not have the same freedom and permanence as U.S. Citizenship.


Lawful Permanent Residents must permanently reside in the United States and therefore travel outside the country for certain periods of time may be limited. Additionally, lawful permanent residents may not vote in any federal, state, or local election that requires U.S. Citizenship.  Lawful Permanent Residents must inform the government any time they move and also risk losing their permanent residency through extended absence from the United States, commission of certain immigration violations, and/or certain criminal convictions and pleas.  


Individuals who obtain Lawful Permanent Residence through marriage to a U.S. Citizen when the marriage is less than two years old are placed in a two-year "conditional" category of Permanent Residence and MUST apply to remove those conditions prior to the two-year expiration, or they risk losing their "Green Card" and could be placed in deportation proceedings.

Family Based Immigration

One of the most common forms of immigration which creates a path to a "Green Card" occurs when a U.S. Citizen or Lawful Permanent Resident files a petition to sponsor his or her relative abroad (or sometimes from within the U.S.) and bring the relative to live permanently in the United States.  The government sets limits on the numbers of visas that can be issued for certain family-based categories, which is why, depending on the sponsor's relationship to the relative and the country from where they are coming, wait times may vary as to when they would be eligible to apply for a visa to come to the United States.


Immediate Relatives


U.S. Citizens who are over the age of 21 can petition to sponsor their foreign spouses, parents, and children (unmarried and under 21).  These relatives are considered "immediate relatives" and are not subject to the visa quotas.  As such, any wait time is limited to the amount of time it takes the government to process the applications.  


Preference Categories


Preference Categories are assigned to immigrant families based on the relationship to the sponsor and the sponsor's status in the United States.

  • First Preference covers unmarried (adult) sons and daughters of U.S. Citizens.
  • Second Preference is divided into two parts, but includes spouses, children (unmarried and under 21), and unmarried adult sons or daughters of "Green Card" holders.  
  • Third Preference includes married (adult) sons and daughters of U.S. Citizens.  
  • Fourth Preference covers brothers and sisters of (adult) U.S. Citizens


The quotas are not only impacted by relationships and status, but also by the country of birth of the foreign relative.  Unfortunately, there is no way to determine how long someone in a certain preference category must wait to apply for a visa; however, the Visa Bulletin, which is published monthly, indicates the cases the government is currently processing based on the "priority date," which reflects the date the relative petition was filed.  When the "priority date" is current, the foreign relative can apply for an immigrant visa to come to the United States (or in other cases, apply immediately for a "Green Card" if the foreign relative is already in the United States in another status).    Although some people may be subject to exceptionally long waits (sometimes upwards of 15 years), petitioning for the relative places him or her in the line to eventually apply to emigrate to the United States.  


A Quick Note on Marriage For immigration purposes, a marriage is considered "legal" if the marriage was legal in the location where it took place and is not against public policy.  This may hold true for certain religious marriages, proxy marriages, and same sex marriages.

Employment Based Immigration

Another common avenue for emigrating to the United States is through employment.  Under most circumstances, employment-based immigration is possible when a U.S. employer petitions to bring a foreign employee to the United States for qualifying employment.    

Employers can bring employees to work in the United States on a temporary basis through nonimmigrant visas, or they may petition to sponsor an employee, making the foreign employee eligible to obtain a "Green Card" and remain in the United States permanently.


Employment-Based Nonimmigrant Visas 


Employment-based nonimmigrant visas are are visas issued for temporary work.  Such visas can range anywhere from several months to several years and may be eligible for renewal.  Common types of employment-based nonimmigrant visas include visas for degreed professionals in a specialty occupation, intra-company transferees, foreign treaty traders and investors, athletes, performers, and individuals with outstanding skills, expertise, and acclaim.  Additionally, there are special visas for certain Canadian and Mexican professionals.  In general, most employment-based nonimmigrant visas require that a foreign national has an employer who is willing and able to sponsor them.  

Additionally, certain visas, in particular the H Visas, are subject to annual quotas, meaning that there is a limited number of visas per year and they tend to be in high demand.


​Employment-Based Green Cards 


Similar to family-based green cards, employment-based green cards are also subject to quotas and potentially long waiting times depending on type of the employment, profession, and country of birth of foreign employee.  The Visa Bulletin, which is published monthly, indicates the cases the government is currently processing based on the "priority date," which reflects the date of the sponsoring employer's initial fiing.  When the "priority date" is current, the foreign employee can apply for an immigrant visa to come to the United States, or if already in the United States and eligible, to apply for the "Green Card" from within the US.

Humanitarian Based Immigration Law

Asylum/Refugee Status


Asylum is a form of relief that an individual inside the United States may be able to apply for if s/he has been persecuted in the past and/or fears future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion and the government is unwilling or unable to protect him/her.


Asylum may be applied for affirmatively (typically within one year of entry into the United States) with U.S. Citizenship and Immigration Services or defensively, as a defense to removal while in immigration court.


One of the primary difference between a person seeking asylum and a refugee is that a refugee is a person outside the United States seeking to come to the United States for fear of persecution.  


Deferred Action for Childhood Arrivals (DACA)

Deferred Action for Childhood Arrivals (DACA) is a temporary program for certain individuals who came to the United States at a young age.  DACA gives certain young people permission to be in the United States and an opportunity to obtain work authorization.  Unless DACA is terminated, a person who has received DACA will not be detained or removed from the United States. 


Eligible immigrants include individuals who came to the United States before turning 16-years-old; continuously resided in the United States since June 15, 2007; were physically present in the United States on June 15, 2012 and at the time of applying for DACA; entered the U.S. without inspection before June 15, 2012 or were not in lawful status as of June 15, 2012; are in school, have graduated or obtained a certificate of completion of high school, have obtained a GED, or were honorably discharged from the U.S. Coast Guard or Armed Forces; have not been convicted of certain crimes and do not otherwise pose a threat to national security or public safety; and were under the age of 31 as of June 15, 2012


DACA is an exercise of prosecutorial discretion to not remove a person from the United States; it is not the DREAM Act and does not create a path to a Lawful Permanent Resident Status (“Green Card”) or U.S. Citizenship. A grant of DACA is good for two years, after two years a person who has received DACA can apply to renew it. DACA is a temporary program that could be terminated by the U.S. government at any time.


Status Update:  Due to federal court orders, USCIS is accepting requests to renew DACA; however, USCIS is no longer accepting new applications from those who had not previously been granted DACA. 


Temporary Protected Status (TPS)


Temporary Protected Status (TPS) is a form of relief for certain individuals from certain countries where it the Secretary of Homeland Security has determined that due to certain country conditions (such as armed conflict, environmental disaster, or other extraordinary circumstances) it is unsafe for the country’s nationals to return.  An individual may be eligible based on the country that s/he is from, when s/he came to the United States, when s/he lived in the United States, and whether s/he met the necessary filing deadlines. Current countries that have TPS designations include: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.


TPS is temporary permission to remain in the United States and obtain work authorization. TPS can be renewed or taken away by the U.S. Government at any time.  TPS does not create a path to a Lawful Permanent Resident Status (“Green Card”) or to citizenship. 


Special Immigrant Juvenile Status (SIJS)


Special Immigrant Juvenile Status (SIJS) provides a path to legal status for certain unaccompanied minors in the United States who have been abused, neglected, abandoned, etc., by one or both parents.  To be eligible, the child must be placed in the custody of an individual or organization by a state court based on a finding that it is in the child's best interest to remain in the United States due to abuse, neglect, abandonment, etc., by one or both parents before turning 18-years-old. The child must then apply for SIJS prior to turning 21-years-old. An individual who receives a Green Card through SIJS can never petition for his/her parents.


T Visas

T Visas provide a path to legal status for individuals who have been victims of severe forms of human sex and/or labor trafficking, have been reasonably helpful to law enforcement in the investigation or prosecution of the crime. 


U Visas


U Visas provide a path to legal status for individuals who have suffered severely as a result of being a victim of certain crimes in the United States who have been helpful, are being helpful, or are likely to be helpful in the investigation or prosecution of the crime.


Criminal activity includes the following crimes: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, stalking, slave trader, torture, trafficking, witness tampering, unlawful criminal restraint, other related crimes, or attempt, conspiracy or solicitation to commit any of the above crimes.


Violence Against Women Act (VAWA)


The Violence Against Women Act (VAWA) provides a path to legal status for a spouse, parent, or child of a U.S. Citizen or Lawful Permanent Resident who has been subjected to battery and/or extreme cruelty by that U.S. Citizen or Lawful Permanent Resident spouse, parent, or child.

Deportation Defense

Generally, when a person is arrested by Immigration, they have an opportunity to appear in front of an immigration judge.  If that person is eligible for immigration relief, such as those in the other sections, they might be able to use that eligibility as a defense to removability.  In addition to the other reliefs outlined on this website, there are certain requests that can only be made in immigration court.  


One such defense that can only be made when a person is in immigration court is called Cancellation of Removal.  There are two types of Cancellation of Removal: one for those who have "Green Cards" and one for those who do not have "Green Cards".


Cancellation of Removal for Lawful Permanent Residents ("Green Card" holders) provides relief for certain Permanent Residents who have had a "Green Card" for at least five years, have continuously resided in the United States for at least seven years, and have not been convicted of an "aggravated felony" as defined by immigration law.  If successful the individual's "Green Card" is reinstated and the proceedings are terminated.  


Cancellation of Removal for Non-Permanent Residents​ provides relief for some immigrants who do not hold "Green Cards" and have been continuously present in the United States for more than ten years, who have good moral character, have not been convicted of certain crimes or immigration violations, and whose removal would result in an "exceptional and extremely unusual" hardship to a U.S. Citizen or Lawful Permanent Resident spouse, parent or child.  This form of relief is very difficult to obtain especially because the "exception and extremely unusual" standard is incredibly high.  If someone is able to obtain this form of relief then they will be granted a "Green Card" at the conclusion of their hearing.

Waivers

​Under certain circumstances, individuals may be ineligible for admission to the United States or might be deportable/removable from the United States.  Such circumstances may include, but are not limited to, health, criminal- and security-related grounds, becoming a public charge, illegal entries, immigration violations, and prior removals from the United States.  When this occurs, certain individuals may be eligible for a waiver to allow them to lawfully come to or stay in the United States.  These waivers are generally discretionary, and may require the foreign national to establish that his or her U.S. Citizen or "Green Card"-holding relatives would suffer extreme hardship if the foreign national could not be in the United States with them.

Naturalization

Naturalization is the process in which a person applies for and becomes a U.S. citizen. Generally, a person can naturalize after five (5) years of continuously residing in the United States as a Lawful Permanent Resident. Under certain circumstances, a person who received his or her "Green Card" based on marriage to a U.S. Citizen and is still married to and residing with the U.S. Citizen spouse, may apply for U.S. citizenship after three (3) years of continuously residing in the United States as a Lawful Permanent Resident.  Certain factors (for example, certain crimes, travel, immigration violations, etc.) may affect a person's ability to become a citizen and applying when ineligible could put a person in a difficult position where they could potentially be stripped of their "Green Card" and removed from the United States. 

As part of the process for becoming a U.S. Citizen (with a few exceptions based on age and length of time as a "Green Card" holder), applicants are required to take an English language test and a U.S. Civics/History Exam.  Study materials for the exams can be found on U.S. Citizenship and Immigration Services' website


Benefits to naturalizing include:


  • Sense of security, as citizenship is nearly impossible to lose once obtained
  • Ability to vote
  • Ability to hold public office
  • Ability to travel and live outside the United States without risk of losing citizenship
  • Ability to sponsor more relatives through family based immigration processes
  • Eligibility for all public benefits, financial aid, scholarships, etc. in which U.S. Citizenship is required
  • Under certain circumstances, becoming a U.S. Citizen could result in a non-citizen child automatically becoming a U.S. Citizen through a process known as derivation


Citizenship itself can be a complicated concept.  Under the the 14th Amendment of the United States Constitution, any person born in the United States is automatically a U.S. Citizen.  Additionally, some people can "acquire" citizenship at birth by virtue of being born to U.S. Citizen parent(s) or can "derive" U.S. Citizen when their parent(s) naturalize.  Citizenship through acquisition or derivation can be rather complicated because it involves an examination of immigration laws at the time the child was born or the time the parent(s) became citizens.