Chapter 1
Where to Begin on Your Path Toward Immigration

If you’ve already tried to research how to immigrate to the United States, you may have come away more confused than enlightened. We’ve heard immigrants ask frustrated questions like, “Are they trying to punish me for doing things legally?” or “I can’t tell whether they want to let me in or keep me out!”

The trouble is, the U.S. immigration system is a little like a mythical creature with two heads. One head is smiling and granting people the right to live or work in the United States, temporarily or permanently—especially people who:

will pump money into the U.S. economy (such as tourists, students, and investors)

can fill gaps in the U.S. workforce (mostly skilled workers)

are joining up with close family members who are already U.S. citizens or permanent residents, or

need protection from persecution or other humanitarian crises.

This creature’s other head wears a frown. It is afraid of the United States’ being overrun by huge numbers of immigrants, and so it tries to keep out anyone who:

doesn’t fit the narrow eligibility categories set forth in the U.S. immigration laws

has a criminal record

is a threat to U.S. ideology or national security

has spent a long time in the U.S. illegally or committed other immigration violations

is attempting fraud in order to immigrate, or

will not earn enough money to stay off government assistance.

Not surprisingly, these two heads don’t always work together very well. You may find that, even when you know you have a right to visit, live, or work in the United States and you’re trying your best to fill out the applications and complete your case properly, you feel as if you’re being treated like a criminal. The frowning head doesn’t care. It views you as just another number and as no great loss if your application fails—or is, literally, lost in the files of thousands of other applications.

Have you heard people say that a U.S. citizen could simply invite a friend from overseas to live here? Those days are gone. Now, every immigrant has to find a legal category that he or she fits within, deal with demanding application forms and procedures, and pass security and other checks.

Almost everyone should at least attend a consultation with an experienced immigration attorney before submitting an application. Unless your case presents no complications whatsoever, it’s best to have an attorney confirm that you haven’t overlooked anything. However, by preparing yourself with the information in this book, you can save money and make sure you’re using a good attorney for the right services.

Example: An American woman was engaged to a man from Mexico and figured, since she herself had been to law school, that she didn’t need an attorney’s help. She read that a foreign-born person who was in the U.S. on a tourist visa could get married and then apply for a green card within the United States. Unfortunately, what she didn’t realize was that this possibility only works for people who decide to get married after entering the United States. Applying for a tourist visa with the idea of coming to the U.S. to get married and get a green card amounts to visa fraud and can ruin a person’s chances of immigrating. Are you already confused by this story? That’s all right, the U.S. immigration system doesn’t always make a lot of sense. This is why an attorney’s help is often needed—to get you through legal hoops that you’d never imagined existed.

Roadmap to U.S. Immigration

This book will cover a lot of territory —almost all of U.S. immigration law, including your basic rights, strategies, and the procedures for getting you where you need to go. Any time you cover this much ground, it helps to have a road map—particularly so you’ll know which subjects or chapters you can skip entirely.

Take a look at the imaginary map below, then read the following subsections to orient yourself to the main topics on the map.

As you can see, the first stop along the way is the Inadmissibility Gate. This gate represents a legal problem that can stop your path to a visa or green card before you’ve even started. If you have, for example, committed certain crimes, been infected with certain contagious diseases, appear likely to need welfare or government assistance, violated U.S. immigration laws, or match another description on the U.S. government’s list of concerns, you are considered “inadmissible.” That means you won’t be allowed any type of U.S. visa or green card, except under special circumstances or with legal forgiveness called a waiver. This gate gets closed on a lot of people who lived in the U.S. illegally for more than six months, which can create either a three-year or ten-year bar to immigrating. Even if you think you haven’t done anything wrong, please read Chapter 3 for more on the problem of inadmissibility.

If you get past the inadmissibility gate, the next stop along your theoretical journey is the Eligibility Bridge. This is where you must answer the question, “What type of visa or green card are you eligible for?” Answering this question will involve some research on your part. You might already know the answer—for example, if you’ve just married a U.S. citizen, it’s pretty obvious that you want to apply for a green card on this basis and should read the appropriate chapter of this book (Chapter 7). Or, if your main goal is to attend college in the United States, then you probably know that you need a student visa, and can proceed straight to the chapter covering that topic (Chapter 22).

If you don’t already know you’re eligible for a certain type of visa or green card, however, then start by reading Section B, below, which reviews the possibilities for spending time in the U.S. and directs you to the appropriate chapters for follow-up.

You’ll see that this book covers more than just permanent green cards—we know that not everyone will either want, or be eligible to receive, the right to live in the United States their whole life. There are many useful ways to stay in the United States temporarily, for example on a student or employment-based visa. And even if you don’t fit into one of the usual categories, there may be an emergency or other special category that helps you.

Not many people will travel down the Citizen Parents or Grandparents Alternate Access Road. It’s for the lucky few who, after doing a little research, realize that they are already U.S. citizens because their parents or grandparents had U.S. citizen­ship. Okay, we admit that this is rare. Most people would not be picking up a book on immigration if they were already U.S. citizens. Nevertheless, a few people are surprised to find that, because their parents were either born in the U.S. or became U.S. citizens later (possibly because their own parents were U.S. citizens), they are already U.S. citizens themselves—in which case they can put this book back down and go get a U.S. passport. See Chapter 2 for a full discussion of who can claim U.S. citizenship through parents.

The next stop along your journey is the Application Process Bog. We added this because, even after you realize that you match the eligibility requirements for a U.S. visa or green card, you can’t just march into a U.S. immigration office and claim your rights on the spot. The application process involves intensive document collection, form preparation, and generally molding your life around monitoring the handling of your case until you’ve gotten what you want. Even if you do your part correctly, most visas and green cards take a much longer time to obtain that you would ever imagine—anywhere from a few months to several years.

Some people never make it through the bog, simply because they fail to adequately prepare their applications or to respond to government follow-up requests on time. Others get bogged down through no fault of their own because the U.S. government loses track of their application. Dealing with bureaucracy and delays is such a large concern that we’ve devoted a whole chapter of this book to it: Chapter 4. And you should also read Chapter 6, on how to find and work with a high-quality immigration attorney. Attorneys are familiar with the difficulties of the application process, and the good ones will have access to inside phone numbers or email addresses to use when there’s a problem. You only have one chance at getting this right, so it’s often worth paying the money to hire an attorney.

If you make it this far, then the door to U.S. immigration will be opened to you.

What You’ll Need to Know

We try not to use confusing legal language in this book. However, there are a few words that will be helpful for you to know, especially if you look at other books or websites. For further definitions, see the Glossary at the back of this book.

Citizen (U.S.). A person who owes allegiance to the U.S. government, is entitled to its protection, and enjoys the highest level of rights due to members of U.S. society. A person can become a U.S. citizen through birth in the United States or its territories; through parents who are citizens; or through naturalization (after applying for citizenship and passing the citizenship exam). Citizens cannot have their status taken away except for certain extraordinary reasons.

Immigrant. Though the general public usually calls any foreign-born newcomer to the United States an immigrant, the U.S. government prefers to think of immigrants as only including those people who have attained permanent residence or a green card.

Nonimmigrant. Everyone who comes to the United States legally but with only a short-term intent to stay is considered a nonimmigrant. For instance, students and tourists are nonimmigrants.

Green card. This slang term refers to the identification card (printed in green) carried by lawful permanent residents of the United States. The government name for the green card is an I-551, or Alien Registration Card (ARC).

Lawful permanent resident. See Permanent resident, below.

Permanent resident. A green card holder. This is a person who has been approved to live in the United States for an unlimited amount of time. However, the status can be taken away for certain reasons, such as having committed a crime or made one’s home outside the United States. Usually after five years, a permanent resident can apply for U.S. citizenship. That number drops to three years if the immigrant has been married to and living with a U.S. citizen all that time.

Visa. A right to enter the United States. An immigrant visa gives someone the right to enter the United States permanently; a nonimmigrant visa gives one the right to enter for a short-term, temporary stay. Physically, the visa usually appears as a stamp in the applicant’s passport, given by a U.S. consulate overseas.

If you forget these words, or encounter other words that you don’t understand, check the list at the back of this book.

The Typical Application Process

Now let’s assume that you are not inadmissible and that you have what it takes to be eligible for either a permanent green card or a temporary U.S. visa. Although we’ll give you more detail about the application processes later in this book, here’s a preview. Your main steps will include:

deciding whether you’ll need legal help to complete your application

if you’re applying for a permanent green card, or in some cases a temporary work visa, waiting while your U.S. family member or employer fills out what’s called a “visa petition,” proving either that you are the person’s family member or have been offered a job; and then waiting even longer for the U.S. immigration authorities to approve the petition

if, in the category under which you’re applying, only limited numbers of visas or green cards are given out every year, waiting until the people in line ahead of you have received their visas or green cards (which can take years)

filling out your own set of application forms, collecting documents, and submitting them to either a U.S. consulate in your home country or to the U.S. immigration authorities

tracking your application to make sure it doesn’t get lost in the system

attending an interview at a consulate outside of the U.S. or a U.S. immigration office, at which your application is reviewed and you answer questions

receiving either a visa to enter the U.S. or a green card or another right to stay in the U.S. (unless you are denied, in which case, you may want to reapply), and finally

entering the United States, protecting your status, and working toward the next step, if any (if you received a green card, you may want to work toward U.S. citizenship, the highest and most secure status you can receive).

One issue that will make a big difference in how your application proceeds is whether you are currently living inside or outside the United States. The U.S. has government offices to handle U.S. immigration applications both outside the U.S. (at U.S. consulates) and within (at USCIS district offices and service centers). However, not all of these offices handle all types of immigration applications. See “Which Government Office Will Be Handling Your Immigration Application,” below.

What’s more, many of the people who would prefer to file their immigration applications in the United States—because they have been living here for many years, perhaps illegally—will find that they are not allowed to do so. We will discuss this at length in Chapter 3.

The short explanation is that, if you either entered the United States illegally (not with a visa or another entry document or right), overstayed a visa, or you have worked here illegally, you cannot (with a few exceptions), use the services of a USCIS immigration office. Instead, you must leave the U.S. and go to a U.S. consulate to make your visa or green card request. That creates a huge problem for people who have lived unlawfully in the United States for more than six months after January 1, 1997. Once you leave, you can be prevented from returning for three years if your illegal stay was between 180 days (six months) and one year. If your illegal stay in the U.S. lasted more than one full year, you can be prevented from returning for ten years. Some people can apply for waivers to return earlier, but not everyone can apply for them and the waivers are frequently denied.

In fact, this problem creates a trap for many people who, although they are technically eligible for a green card, can’t actually get a green card because they are living in the United States illegally.

Example: Maria crossed the border illegally from Mexico in the year 2005. She married David, a U.S. citizen, in 2010. However, because of Maria’s illegal entry, she cannot apply for a green card at a local USCIS office. She would have to go to a U.S. consulate in Mexico to file her green card application—and then potentially be barred from returning to the U.S. for ten years.

Fortunately, USCIS is developing a “provisional waiver” that will allow some applicants, like Maria described above, to submit their waiver request before leaving the U.S. for their consular interview. For details, see Chapter 7.

Immigration Eligibility Self-Quiz

Since we don’t know who you are, we’re going make a very broad assumption: that you’re looking for any possible way to spend time in the United States, preferably permanently.

With that idea in mind, we offer the following quiz to help you find out what type of visa or green card you might be eligible for and which chapter of this book to read for more information. This quiz will also help introduce you to U.S. immigration law—it covers almost all the categories for entering or staying legally.

Which Government Office Will Be Handling Your Immigration Application

Getting your green card or nonimmigrant visa may require dealing with more than one U.S. government agency, and maybe more than one office within that agency. The possibilities include the following:

The U.S. Department of State (DOS, at www.travel.state.gov), through U.S. embassies and consulates located around the world. If you’re coming from outside of the U.S., you’ll be dealing primarily with a U.S. consulate—and if you’re currently in the U.S., you, too, may have to travel to a consulate to complete your application. Not all U.S. consulates provide visa-processing services. To find more information about the U.S. consulate nearest to your home, either check the phone book of your country’s capital city, or go online at www.usembassy.gov. Note that you cannot normally apply for an immigrant visa (permanent residence) in a U.S. embassy or consulate outside your home country, unless the U.S. has no diplomatic relationship with the government of your homeland. You can apply for nonimmigrant visas (such as tourist visas) in third countries, so long as you have never overstayed your permitted time in the United States, even by one day.

The National Visa Center (NVC), a private company under contract to the DOS for the purpose of handling case files during certain intermediate parts of the green card application process. After USCIS approves a visa petition by a U.S.-based family member or company, the NVC is given the file and handles the case until it’s time to forward the file to the appropriate U.S. consulate or USCIS district office.

U.S. Citizenship and Immigration Services (USCIS, formerly called INS, at www.uscis.gov), an agency of the Department of Homeland Security (DHS). Even if you’re living outside the United States, you may have to deal with USCIS, particularly if you’re applying for a green card rather than a temporary visa. Most green card applications must be started by a U.S.-based family member or company filing a visa petition with USCIS. USCIS has various types of offices that handle immigration applications, including service centers and Lockboxes (large processing facilities that serve a wide region, which you cannot visit in person), district offices (which interact with the public by providing forms and information and holding interviews), suboffices (like district offices, but smaller and with more limited services), Application Support Centers (where you go to have fingerprints taken and, in some cases, pick up forms or turn in applications), and asylum offices (where interviews on applications for asylum are held).

Customs and Border Protection (CBP at www.cbp.gov), also under DHS, responsible for patrolling the U.S. borders. This includes meeting you at an airport or other U.S. entry point when you arrive with your visa and doing a last check to make sure that your visa paperwork is in order and that you didn’t obtain it through fraud or by providing false information.

The U.S. Department of Labor, (DOL at www.dol.gov), through its Employment and Training Administration, at www.doleta.gov. If your visa or green card application is based on a job with a U.S. employer, certain parts of the paperwork may have to be filed with and ruled on by the DOL. The DOL’s role is to make sure that hiring immigrant workers doesn’t make it harder for U.S. workers to get a job and that you’re being paid a fair wage (one that doesn’t act to bring down the wages of U.S. workers).

Although you needn’t learn a lot about these various agencies, it’s important to keep track of which one has your application as it makes its way through the pipeline.

This is especially true if you ever change your address, because you should advise the office that actually has control of your application. (These offices don’t communicate well with each other—if you tell one place about your change of address, it may not tell the one that actually has your file, and you may not hear about important requirements or interviews.)