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Immigration and Naturalization Service (INS) is the “legacy” agency that was dissolved in the merger with Immigration and Customs Enforcement (ICE) to become today’s Department of Homeland Security (DHS). Today, INS no longer exists. Rather, ICE patrols the borders and immigration detention centers while working under the umbrella of DHS. DHS, in turn, is the immigration enforcement arm under the Department of Justice, headed by the Attorney General. Immigration attorneys will often refer to the legacy agency INS when citing eligibility for or exceptions to relief prior to the enactment of new immigration laws in the late 1990s. Prior INS enforcement also provides context for certain procedures now executed by ICE and DHS.
Completing and filing the correct immigration forms is essential to this brand of “administrative” law. The forms for different types of immigration relief constantly change. Both USCIS and EOIR (Executive Office for Immigration Review) require the most current versions and can even reject older forms, further delaying the immigration process. You can find the version and date at the bottom of each form. There are multiple pages of different immigration forms, but some common examples include:
The forms mentioned above are filed with USCIS. Carefully follow the instructions to send the forms to one of the several lockboxes listed. You will want to consult an immigration lawyer to properly fill out the correct forms and file them alone or in conjunction with others to expedite service at USCIS. Forms for the EOIR or immigration court, on the other hand, are completely different. Relief from deportation before an immigration judge requires forms that include:
Form names differ depending on where you are in the immigration process. At USCIS, for example, you would use Form AR-11 to change your address, but not when facing deportation in court. Protection under the Violence Against Women Act (VAWA) is likewise requested on Form I-360 when filed with USCIS but by checking the second box on the EOIR-42B form requesting non-LPR cancellation of removal in court. An immigration attorney can help you file the correct immigration forms with the right agency to avoid denials of relief.
Whatever your reason is for wanting a visa, you should first determine if you need one. Some countries don't require application for a non-immigrant visa to under the United States if you're stay will be less than 90 days. If you do need a visa, your next step is choosing the correct visa type. There are many types of visas, broken down between Non-immigrant visas and immigrant visas.
Visas fall into two categories: non-immigrant visas (NIVs) and immigrant visas. NIVs are for those who do not plan on immigrating to the United States. Rather, they allow foreigners to work in the United States temporarily and need to be renewed every one to four years. Common NIVs awarded to foreigners ranging from visitors to skilled workers include:
Many NIVs have “caps” meaning only a certain number are awarded each year. H-1B caps are notoriously limited despite being reserved for fields requiring “specialized knowledge.” NIVs are also fixed on purpose. When the purpose of the exchange expires, so does the visa. B-2 visas, for instance, only last six months. After that, you start to accrue “unlawful presence.”
Unlike NIVs, immigrant visas show an intent to remain in the United States. They are divided into family-based visas or employment-based visas, depending on who is “sponsoring” or promising financial support for the applicant. Immigrant visas are for those planning to become LPRs or USCs. Family sponsored immigrant visa categories include:
Like family-based visas, employment-sponsored visas contemplate permanent resident status in the United States. Companies “sponsor” foreign employees and later, in conjunction with Form I-485, allow these workers to immigrate to the United States. Employment-based visas may require certification by the U.S. Department of Labor and are grouped by “preference,” with some taking priority over others:
Whereas adjustment through family visas is “backlogged” for highly-impacted countries—Mexico, China, India, and the Philippines—employment-sponsored visas, despite being “capped,” are not. In fact, beneficiaries of employment-sponsored visas can request “premium processing” of their applications, which fast-tracks a decision upon payment of a fee. A trusted immigration lawyer will know which type of visa best serves your needs.
Applying for a green card usually requires completion of Form I-485 Application to Adjust Status to Legal Permanent Resident (LPR). The adjustment to LPR may be accomplished by any of the methods above, whether before USCIS or EOIR. Along with Form I-485, the applicant must pass a medical exam (Form I-693) and show proof of financial responsibility (I-864 Affidavit of Support). These forms exclude certain immigrants with communicable diseases and potential drains to the U.S. economy by disallowing welfare benefits.
Naturalization describes the process of becoming a USC. LPRs can apply for naturalization using Form N-400 and taking the citizenship test. The exam, conducted by USCIS officers, will require some knowledge of U.S. history or civics and basic knowledge of the English language. In addition, applicants must demonstrate they do not pose a threat to national security by having belonged to certain criminal groups or previously engaging in specific “disqualifying” crimes. Once applicants pass the test, they take an oath to swear allegiance to the United States and receive a certificate that contains the date, time, and place of naturalization.
Employment immigration is discussed in greater detail under “Immigrant Visas” and refers to sponsorship by employers. The principal difference between employment and individual immigration is who pays for the immigration law firm. In general, corporations who employ skilled labor “sponsor” their workers and apply for visas using their legal department. This process requires that the employer determine the prevailing wage for similar labor and follow proper selection techniques that ensure immigrants are not taking jobs from American workers.
Individual immigration may refer to “self-petitions” in which petitioners do not need an employer or family member to sponsor them. They can petition themselves, as in the case of VAWA applicants battered by USC/LPR spouses, parents, or children. In employment-based immigration, certain NIV holders can petition themselves for EB-1A status by showing extraordinary ability in specialized fields and earning a salary that meets the minimum criteria. When in deportation proceedings, individuals are not entitled to a free immigration lawyer but will be given a list of pro-bono organizations that can usher them through the process. This is usually provided after an asylum interview or at the first hearing in court.
Deportation is the process of removing a person from the United States. It is used interchangeably with the term “removal.” Except for cases of expedited removal at the border, which bans people from re-entering the United States for 5 or 10 years, aliens expressing a credible fear of returning to their home country are entitled to a formal hearing before an immigration judge. The deportation process begins with DHS (Department of Homeland Security) filing a notice to appear (NTA) with the immigration court and attendance at all master calendar hearings leading up to the individual hearing on the merits of a claim.
Aliens who fail to apprise the court when they change address may not receive the NTA or notice of hearing, resulting in deportation in their absence. In their applications and at the individual hearing, aliens must show eligibility for the claimed relief by proving:
In addition, the applicant asking for relief from removal must not have been convicted of certain disqualifying crimes such as drug trafficking or alien smuggling. Crimes of moral turpitude or acts seen as inherently base or vile may also bar relief. Even with no disqualifying crimes, immigration judges can still find the respondent not credible or lacking “good moral character,” resulting in an unfavorable exercise of discretion.
This discretionary factor is important in cancellation of removal cases where the applicant must prove 10 years of physical presence, good moral character, and hardship resulting in exceptional and extremely unusual hardship to qualifying USC or LPR relatives upon the alien’s removal from the United States. You will want an experienced immigration attorney to represent you in court and meet the high legal burden necessary to gain legal status over objections by DHS.
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