Basic Immigration Law
Authored By: Carl Vinson Institute
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BASIC IMMIGRATION LAW
This document tells you the following:
- Where do U.S. immigration laws come from?
- What agencies administer U.S. immigration laws?
- Who gets U.S. citizenship?
- What are the immigration rules that allow non-citizens allowed to be in the U.S.?
- What are the ways that a non-citizen can immigrate to the U.S.?
- How can you change your legal status under U.S. immigration law?
- How do non-citizens lose their immigration status?
- How do you become a U.S. Citizen?
- Once you become a naturalized U.S. citizen, can you lose that status?
- What public benefits are available to immigrants?
SOURCE OF IMMIGRATION LAW
As with every aspect of the law, the U.S. Constitution is the starting point for laws governing immigration. Article I, Section 8.4 of the Constitution gives Congress the power over immigration and naturalization. This power is justified by the duty Congress has to keep the United States safe and secure. After all, our country's relationship with other nations and their citizens can affect national safety and security.
Congress's power over immigration is broad and largely unchallenged. Overseeing the process of people from other countries entering the United States is part of this duty. General authority to administer immigration laws has been delegated by Congress to the Department of Homeland Security.
Immigration related matters are handled on a daytoday basis by three of the department's bureaus:
- the Bureau of Citizenship and Immigration Services,
- the Bureau of Immigration and Customs Enforcement, and
- The Bureau of Customs and Border Patrol.
In addition, there is the Executive Office of Immigration Review, which includes the immigration courts and an appellate court. The Executive Office of Immigration Review is also called the Board of Immigration Appeals. These courts make final determinations regarding immigration matters. Most of these agencies are better known by their previous name, the Immigration and Naturalization Service (INS). This name was changed in 2003 with the creation of the Department of Homeland Security. The authority of the department and its bureaus is defined by law. The primary law is called the Immigration and Nationality Act. The laws governing the implementation of this act are found in the Code of Federal Regulations.
The ways in which immigration laws are applied to particular cases are determined by courts and administrative bodies (for example, agencies such as the Bureau of Citizenship and Immigration Services and its review board, the Board of Immigration Appeals).
A case may begin by someone filing an application for an immigration benefit such as protection under asylum laws (discussed later in this chapter). The application is submitted to the bureau, which then makes a decision. If the bureau decides to deny the benefit sought, that denial is reviewed by an immigration judge. The immigration judge's decision is then reviewed by the Board of Immigration Appeals. In some cases, the board's decisions are reviewed by the federal courts.
Other governmental bodies assist in executing immigration laws. For example, in certain employmentrelated cases, the Department of Labor must consider how immigration will affect the labor market. Such a decision can be very important in determining whether a work visa will be granted or denied.
Most people are familiar with the concept of citizenship. To help you understand more precisely who is a citizen, remember two words: soil and blood.
According to the Fourteenth Amendment to the U.S. Constitution, persons born in this country are citizens of the United States. This constitutional provision comes from a historical principle that says that a person's nationality is determined by his or her place of birth. This concept has a legal name: the doctrine of jus soli. Jus is the Latin word for "law," and soli means "soil." Anyone born in the United States is therefore a citizen. The United States includes any of the 50 states, Puerto Rico, the Virgin Islands, American Samoa, Guam, or any other island or territory that is considered to be part of the United States. Additionally, certain persons born in the Canal Zone (Panama) while it was under U.S. control may also be considered citizens. Under current laws, there is only one exception to the doctrine of jus soli: a child born in the United States to parents who are in the diplomatic service of another country does not acquire U.S. citizenship at birth.
Some people become citizens through derivative citizenship. That is, they become citizens of the United States because even though they are born outside the country, they are born to at least one parent who is a U.S. citizen. The concept of derivative citizenship also has a legal name: the doctrine of jus sanguinis. Sanguinis is a Latin word that means "blood." Thus, under this doctrine, a child's nationality depends on the nationality of his or her parents.
Citizens born in the United States can prove their citizenship with their birth certificates. Derivative citizens can apply for a certificate of citizenship for the purpose of proving that they also are citizens. The Bureau of Citizenship and Immigration Services is in charge of considering the evidence in support of claims of derivative citizenship and determining whether or not a person is a citizen. If citizenship is determined, the bureau will issue the certificate. The U.S. Passport Agency can also make this determination, but it must defer to the bureau in cases in which the evidence presented to support the claim of derivative citizenship is not clear.
A person who is not born in the United States and who is not a citizen because one or both parents were citizens at their birth can nevertheless apply to become a U.S. citizen under certain conditions. The process for applying for citizenship is called naturalization. (Naturalization will be discussed in greater detail later in this chapter.)
According to immigration laws, people are either citizens or noncitizens (aliens). Immigration laws do not affect U.S. citizens. Rather, they apply to aliens who are in the United States temporarily or permanently. Immigration laws determine how aliens can visit, live, work, and study in the United States. They also determine if, how, and when aliens can become citizens. Immigration laws cease to affect an alien once he or she becomes a citizen of the United States.
There are basically two types of aliens: those who come to the United States for a temporary stay and those who come with the intention of staying permanently.
Nonimmigrants are aliens who come to the United States temporarily. Their stay here is usually authorized by one of the nonimmigrant visa categories created in the Immigration and Nationality Act. There are numerous nonimmigrant visas available for various purposes.
Each visa provides for a certain period during which the nonimmigrant can stay in the United States. In addition to nonimmigrant visas, immigration laws provide other ways for aliens to enter or remain in the United States for temporary periods of time.
1. Temporary Protective Status
Temporary protective status gives temporary legal status and work authorization to aliens from specific countries that the U.S. government has determined are not safe to return to because of significant natural disasters or war. For example, a few years ago a volcano destroyed a substantial part of the island of Monserrat. Following that natural disaster, the U.S. government issued temporary protective status for aliens present in the United States who were citizens of or last resided in Monserrat. The authorization to live and work in the United States is in effect for those aliens until the U.S. government decides that the situation in Monserrat has improved enough for its citizens to return safely.
Another type of temporary status is called parole. Parole allows the Bureau of Citizenship and Immigration Services to bring an alien applying for admission to the United States into the country on a temporary basis prior to the formal admission being granted. Paroles are granted on a casebycase basis when there is urgent humanitarian need or a significant public benefit to be gained.
Examples of persons who have been or can be paroled include
- refugees from Cuba,
- those who are applying to become permanent residents of the United States but who need to travel abroad temporarily and then return to continue with their pending applications, and
- those who need to travel to the United States temporarily for humanitarian purposes (such as an operation) but who do not qualify for any of the other nonimmigrant visas.
Parole is generally approved for a specific period of time, and the alien must use the parole document prior to its expiration.
Unlike nonimmigrants, who come to the United States for a temporary period of time, immigrants come to the United States to work and live permanently. The goal of an alien who wants to be an immigrant is to become a lawful permanent resident. To do so, the alien must obtain a permanent resident alien card (a "green card"). Once the green card is granted and the alien becomes a permanent resident, he or she is allowed to live, work, and travel in the United States on a permanent basis. Furthermore, permanent residents have the right to become naturalized citizens if they meet all of the requirements.
Aliens generally want to immigrate to the United States for one or more of four reasons: to be united with family, to work or make professional advancements, to flee persecution in their home countries, or to make a better life for themselves and their families. For example, the Hispanic population in Georgia has grown rapidly because immigrants are seeking jobs and to be with family members who are already in the state (see figure 202).
Most legal immigrants, nearly three-fourths, come to the United States to be close to family members who are already here.
U.S. citizens may apply for an immigrant visa on behalf of the following family members: spouses, children (including minor, adult, unmarried, or married children; stepchildren, in certain cases; and adopted children), parents, and siblings.
Lawful permanent residents are allowed to apply on behalf of only spouses and unmarried children. Approval of an application for a family immigrant visa can take several years. Once the visa is approved, the alien relative may immigrate to the United States, or if the relative is in the United States on a nonimmigrant visa, the alien may obtain permanent resident status.
The relationship of the applicant to the alien who wants to become an immigrant affects the length of the process. For instance, the spouse of a U.S. citizen can qualify for permanent resident status immediately once the husbandwife relationship is formed, but the spouse of a lawful permanent resident must wait 4 to 8 years. The brother or sister of a U.S. citizen can wait 20 years or more to acquire permanent resident status.
Employment or Talent-Based Immigration
The second type of immigration, employment-based immigration, allows employers to bring skilled workers into the United States. This complex process is coordinated between the Bureau of Citizenship and Immigration Services and the U.S. Department of Labor to ensure that foreign workers are not hired for jobs that U.S. citizens could do. Only a few workers per employer are allowed.
Before bringing immigrant workers to the United States through an employment-based immigrant petition, employers must show that there are no qualified Americans available to fill the job. However, once the immigrant workers are in the United States, they can petition to become lawful permanent residents and, eventually, U.S. citizens. They can also bring with them to the United States a spouse and children who are unmarried minors.
Refugees and Asylees
Most people are familiar with the saying on the Statute of Liberty that reads, "Give me your tired, your poor, your huddled masses yearning to breathe free." The saying is fitting because the United States was founded in part by those who fled countries in which they were being persecuted for political or religious reasons.
U.S. immigration laws reflect the ongoing responsibility that the nation has assumed to offer protection to individuals who are at risk of persecution because of their race, nationality, religion, ethnicity, or political or social activities. This protection is offered to people who are referred to as refugees or asylees.
A refugee is an alien wanting protection who has obtained formal permission to enter the United States while he or she was outside the country.
An asylee is an alien who is already in the United States and then applies for and is granted asylum (or protection).
Regardless of how an alien enters the United States, whether legally or not, he or she can apply for asylum once in the United States. Aliens become asylees only after their applications for asylum have been granted. Both asylees and refugees are eligible to apply for lawful permanent resident status after they have held their asylee or refugee status for at least one year. The spouses and children of asylees and refugees can also be considered asylees and refugees.
Certain immigrants are ineligible for asylee or refugee status, including terrorists, drug traffickers, those who have serious criminal convictions, those who have persecuted others, and those who pose a serious threat to national security. There are more limited forms of protection in some cases for individuals in these categories.
There is a catchall provision in the Immigration and Nationalization Act for aliens such as widows and orphans of citizens, certain juveniles, Amerasians (that is, children of U.S. and Asian citizens), victims of domestic violence, and religious workers. These aliens may apply for a special immigrant petition. If approved, this petition can lead to an adjustment in status so that the person can become a lawful permanent resident.
Persons Who Are in the United States Illegally
Aliens who are in the United States without formal permission are in the country illegally. Some illegal aliens intend to stay temporarily, whereas others intend to stay permanently. Illegal aliens come to the United States in one of two ways: they overstay or violate their visa or they cross the border illegally.
1. Visa overstays/violators.
Any alien who enters the United States legally with a nonimmigrant visa but who either overstays the period of time allowed under the terms of the visa or performs an activity not allowed under the terms of the visa is considered to be in the country illegally.
2. Aliens who cross the border illegally.
Aliens who cross the border into the United States without presenting themselves to an immigration checkpoint for inspection are also illegal aliens.
Illegal aliens in these categories face obstacles to obtaining legal status. Most illegal aliens apply for asylum or temporary protective status or acquire lawful permanent resident status through a family member or employer. Under a limited provision in the law, qualified illegal aliens may obtain a family-based or employment-based visa by paying a financial penalty and by meeting a variety of other qualifications and time limitations. Visa overstays or violators may obtain permanent resident status without paying such a penalty only when they are applying as the spouse or minor child of a U.S. citizen. Persons who cross the border without passing through inspection may not petition for permanent resident status without paying the penalty.
ACQUIRING AND LOSING LEGAL STATUS
Engaging in any criminal act that violates the immigration law definition of good moral character can prevent an alien from gaining legal (that is, permanent resident) status. It can also mean losing legal status already obtained. Convictions for not only murder, rape, drug trafficking, child molestation, and fraud but also lesser charges such as theft or assault and battery may be obstacles to obtaining or retaining legal immigration status.
Further, lying to the U.S. government to obtain an immigration benefit constitutes fraud and misrepresentation and can jeopardize an alien's status now and in the future. For example, if a married alien tells the Bureau of Citizenship and Immigration Services that he or she is not married and the bureau grants permanent resident status based on this assertion but later learns of the lie, the bureau can take away the alien's lawful permanent resident status.
In some cases, an alien who has a criminal conviction or who has committed fraud and misrepresentation may submit a waiver (that is, a kind of apology) to the Bureau of Citizenship and Immigration Services in order to achieve or retain permanent resident status. Waivers are usually allowed when an extreme hardship would be inflicted on a citizen or resident spouse or child if the alien's status were to be denied or taken away. Nevertheless, aliens who engage in criminal activity or fraud and misrepresentation (two of the most common acts) may face deportation. Other reasons for being deported include overstaying a visa and entering the country illegally.
Moreover, if the Bureau of Citizenship and Immigration Services believes that an alien is likely to be a burden on the welfare system, it may deny that alien's application for permanent resident status. The U.S. citizen or permanent resident who files the petition on behalf of the alien must therefore show that he or she makes enough money to support the alien or that there is another citizen or resident who is willing and able to support the alien. This person is called a sponsor. Alternatively, the alien seeking to become a resident can show that he or she is employable and is unlikely to become a burden on the welfare system.
Public Benefits Maps
To see an overview of benefits available to immigrants state by state view: THIS MAP
View THIS MAP for information about SNAP benefits available to immigrants.
View THIS MAP for information about Public Housing Assistance for immigrants.
View THIS MAP for information about WAP and LIHEAP benefits available to immigrants.
View THIS MAP for infomarion about SSI benefits available to immigrants.
View THIS MAP for information about WIC benefits available to immigrants.
Aliens may lose their eligibility to become residents if they lose their sponsor. There are several humanitarian exceptions to the loss of a sponsor.
Other ways in which a permanent resident may lose his or her status once it is granted include the following:
- The permanent resident abandons his or her status. A permanent resident may lose his or her status if there is a lengthy absence from the United States. The outcome depends on the circumstances surrounding the absence and whether or not the resident intended to abandon his or her status.
- The permanent resident renounces his or her status. A resident may renounce (that is, deliberately give up) resident status at any time by submitting the appropriate form to a Bureau of Citizenship and Immigration Services officer (or a U.S. consulate or embassy in another country).
- The Bureau of Citizenship and Immigration Services rescinds (or repeals) the permanent resident's status. The bureau can rescind the permanent resident status of an alien within five years of granting it if the bureau discovers that the alien was not eligible for the status when it was initially granted (for example, if it is discovered that an alien lied about his or her qualifications when applying for permanent resident status).
- The permanent resident is deported. Permanent resident status will be revoked if the resident commits an offense that results in deportation.
Recall that persons who are not born in the United States and who do not derive citizenship through their parents can apply to become U.S. citizens under certain conditions through a process called naturalization. Naturalization applications are filed with the Bureau of Citizenship and Immigration Services, which has sole power to determine whether an alien can become a naturalized citizen. Citizenship obtained through naturalization carries with it the privilege of full participation in government, including the right to speak freely, to criticize the government, to work for the government, and to promote changes in the law. Naturalized citizens are not secondclass citizens. In fact, there are very few differences between citizenship by birth and naturalization, except in two important respects: naturalized citizens cannot run for the office of President of the United States and, in extreme cases, naturalized citizens can be denaturalized (a process that is explained later in this chapter).
1. Physical and Legal Presence Requirements
To be eligible for naturalization, an alien must meet the requirements for residency and physical presence established by the Immigration and Nationality Act:
- The alien must have been a lawful permanent resident of the United States for a minimum of five years (or three years, if he or she is married to a U.S. citizen) before applying for naturalization.
- The alien must show that he or she has been physically present in the United States for at least half of the time during the past five years.
- The alien must show that he or she has lived in the city in which he or she is applying for naturalization for at least three months.
There are less stringent requirements for those who reside outside the United States but who work for the United States (such as the military). Furthermore, aliens who serve in the U.S. military during a time of war do not have to show that they had lawful permanent resident status prior to applying for naturalization.
2. Oath of Allegiance
To gain citizenship through naturalization, an alien must understand the oath of allegiance and be able and willing to take it. Under the oath, the alien promises
- to support the Constitution of the United States;
- to "renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen";
- to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic;
- to bear true faith and allegiance to the United States; and
- to bear arms on behalf of the United States, perform noncombatant service in the Armed Forces of the United States, or perform work of national importance under civilian direction when required by law.
3. Age Requirement
With the exception of adoption and those individuals who have honorably served in an active duty status in the Armed Forces during a time of war, aliens must be at least 18 years old to qualify for naturalization.
4. Mental Competency Requirement
An alien must be legally competent at the time he or she takes the examination for naturalization, which is part of the naturalization application, and at the time the oath of allegiance is administered. That is, the alien must understand the purpose of naturalization and the responsibilities that come with citizenship. Past history of mental incompetence, such as having been confined to a mental institution, is not an impediment, provided that during the time of the application and when the oath is administered the alien has overcome the problem sufficiently to understand the concept of U.S. citizenship and to desire to be a U.S. citizen.
5. English Language Requirement
Aliens who apply for naturalization must be able to speak, read, write, and understand English. An interview is conducted in English, giving aliens an opportunity to hear and answer questions and demonstrate their ability to speak and understand the language. The Bureau of Citizenship and Immigration Services officer will also ask the alien to read a randomly selected sentence and to write down a simple phrase (such as "I want to become a citizen") dictated by the bureau officer. Aliens must be able to read and write the sentences clearly and accurately.
6. Good Moral Character Requirement
A person must be considered to have "good moral character" in order to be approved for naturalization. Good moral character is defined by the Immigration and Nationality Act by reference to a list of specific, prohibited activities. However, there is also a discretionary aspect to good moral character; that is, the Bureau of Citizenship and Immigration Services may consider other activities not necessarily listed in the act.
Generally, an alien is not considered to be of good moral character if he or she
- is habitually drunk,
- has been convicted of certain crimes such as theft or violence,
- is a practicing prostitute or is one who procures prostitution,
- engages in commercial vice,
- smuggles other aliens,
- is a practicing polygamist,
- has been convicted of a controlled substance violation,
- has an income derived principally from illegal gambling activities,
- has given false testimony or perjury to obtain an immigration benefit,
- has made false claims in order to obtain U.S. citizenship or to vote in elections,
- has failed to pay a child support obligation,
- has failed to file taxes, or
- is a man who is eligible for but fails to register with the Selective Service.
All naturalization applicants are required to be fingerprinted so that a Bureau of Citizenship and Immigration Services officer may request a copy of the applicant's record from the Federal Bureau of Investigation. The bureau officer has the right to review the alien's complete immigration file and history. Lying on an application for naturalization is unwise.
7. Knowledge of U.S. History and Government Requirement
In addition to demonstrating an understanding of the English language, naturalization applicants must pass an examination to show a knowledge and understanding of the fundamentals of U.S. history and the principles and form of U.S. government. Applicants may obtain a list of the government and history questions from the Bureau of Citizenship and Immigration Services prior to taking the exam. A bureau officer generally asks 10 questions that are chosen randomly from 100 possible questions. The questions, which are answered orally, are designed to assess basic knowledge ("What are the branches of government?"), locally specific knowledge ("Who is the mayor of your city?"), and lesserknown facts ("Who wrote the Star Spangled Banner?"). The applicant must be able to answer at least 60 percent of the questions correctly.
Because of a medical handicap, advanced age, or religious beliefs, some people may be unable to complete all of the prerequisites for naturalization but nevertheless may be eligible for citizenship. An applicant who has a physical disability that renders him or her incapable of learning to speak the English language (for example, a person who is deaf or mute) may be exempt from the English language requirement. Persons who are blind have also been exempted from the requirement, even though blindness itself is not an impediment to learning language.
For other physical conditions, a medical doctor must show that the disability is such that the applicant is unable to acquire the language skills (that is, the ability to speak, write, read, and understand English). Likewise, because of this inability to learn, the requirement of knowledge of U.S. history and government may be waived. However, aliens who lose their cognitive abilities as a direct result of illegal drug use do not qualify for this exemption.
In addition to the disability exception, aliens who have been longtime lawful permanent residents of the United States and are of an advanced age may qualify to have their naturalization interview and government and history test conducted in their native language. Aliens who are over 50 years of age and have been living in the United States as permanent residents for at least 20 years or who are over 55 years of age and have been living in the United States as permanent residents for at least 15 years are covered by this exemption.
Some persons may be exempted from taking the full oath of allegiance because their religious convictions prevent them from voting, serving on juries, pledging allegiance to the flag, bearing arms, engaging in politics, or otherwise participating in government. The U.S. Constitution protects freedom of religion just as it creates the right to become a naturalized citizen.
Because these constitutional provisions may conflict, immigration laws provide that eligible applicants may become naturalized without having to violate basic tenets of their religious beliefs.
Naturalization may be revoked if a person who is seeking citizenship by naturalization conceals a material fact or intentionally misrepresents him or herself (that is, lies) during the application process. The process of revoking a person's citizenship is known as denaturalization.
In a denaturalization proceeding, the government must prove that
1. the naturalized citizen misrepresented or concealed some fact,
2. the misrepresentation or concealment was willful (or deliberate),
3. the fact was material (that is, important to the decision of granting citizenship), and
4. the naturalized citizen obtained citizenship as a result of the misrepresentation or concealment.
For information on Legal Services available to immigrants in Georgia view THIS MAP.
When the government seeks to revoke naturalization because of either concealment or misrepresentation, it must show that the naturalized citizen actually intended to deceive the government. That is, the government must show that the naturalized citizen knew that his or her statements were lies. Denaturalization is considered the most serious of all immigration law proceedings, and any decision made by the Bureau of Citizenship and Immigration Services against a naturalized citizen is reviewed carefully by the U.S. courts.
* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.