The number of lawful immigrants allowed into the United States is closely regulated, and is broken down by type of immigration. Family-based immigration is currently capped at 480,000 persons per year. Employment based immigration is limited to 140,000 persons per year. "Diversity" applications are capped at 50,000 per year. The 2015 annual caps are as follows. All information taken from Cyrus D. Mehta, Basic Immigration Law 2015, Practising Law Institute, 2015.
Family Based Immigration
Family-based immigration is divided into two types of family: immediate relatives or family preference relationships. An immediate relative is a spouse of a U.S. citizen; a minor, unmarried child of a U.S. citizen; the parents of a U.S. citizen. For immediate family members there is no numerical annual cap. A family preference relationship consists of the adult children (married or unmarried) or the siblings of a U.S. citizen OR the spouses and unmarried children (minor or adult) of lawful permanent residents. Family preference relationships are capped annually.
|Sponsor||Relationship||Preference No.||Visas Allocated|
|U.S. Citizen||Unmarried adult children (21+)||1st preference||23,400/year
all leftover from 4th preference
|LPR||Spouses or minor children||2nd preference||87,900/year|
|LPR||Unmarried adult children||2nd preference||26,300/year|
|U.S. Citizen||Married adult children||3rd preference||23,400/year
all leftover from 1st & 2nd preference
|U.S. Citizen||Siblings and spouses and children of siblings||4th preference||65,000/year
all leftover from 1st, 2nd, 3rd preferences
Employment Based Immigration
|Preference Level||Definition||Visas Allocated|
|First||Priority Workers: "extraordinary ability" or "outstanding professors or researchers" or "multinational executives and managers"||40,000/year and leftovers from 4th or 5th preferences|
|Second||"members of the professions holding advanced degrees or aliens of exceptional ability;" usually requires certification. If no certification, the worker must be capalbe of performing skilled labor in the "national interest."||40,000/year and leftovers from 1st preference|
|Third||Skilled workers, professionals, and other workers "capable of performing unskilled labor" who are not temporary or seasonal workers. Skilled workers must submit labor certification.||40,000/year and leftovers from 1st and 2nd preference. 5,000 for unskilled labor.|
|Fourth||"Special" immigrants, including ministers, religious workers and others.||10,000/year|
|Fifth||Investors with $300,000 - $3 million to invest in job-creating enterprises. At least 10 workers must be employed by each investor. If the investor fails to meet conditions, the permanent residence status will be revoked.||10,000/year|
The Diversity Visa Program is administered by the Department of State as permitted under section of 203(c) of the Immigration and Nationality Act. The aim of the program is to encourage immigration from under represented geographical areas. For FY 2018 there are 50,000 Diversity Visas available. It is a random-drawing lottery procedure from a pool of applicants who meet the strict guidelines for eligibility. There is a two-year lapse between the lottery drawing and ability to immigrate to the United States; the application pool for FY2018 was gathered from applications submitted from October 4, 2016 to November 7, 2016. If a person is selected from the lottery, that person must go through the full visa application process, including an interview and a physical examination, as well as pay for any fees. The time to travel once the visa has been approved is six months. At the time of entry to the United States, the visa can be denied by Homeland Security, U.S. Customs, or Border Protection. Upon entry to the United States the visa holder becomes a lawful permanent resident, eligible to live and work permanently in the United States and eligible to apply for naturalization after five years of residency in the United States.
Citizenship conferred from being born within the United States is not explicitly defined by the Constitution. The current legal defintion of "natural born" arises from the text of the 14th Amendment , which states in section 1: "All persons born ...in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The Supreme Court ruled that a child born in the United States, but whose parents are the citizens or subjects of another country becomes a citizen of the United States under the 14th Amendment, clause 1. United States v Wong Kim Ark (1898)
For discussions of "natural born" citizenship, see Neal Katyal and Paul Clement, "On the Meaning of 'Natural Born Citizen'," Harvard Law Review (March 11, 2015); "Natural Born Citizen," Wex/Legal Information Institute; Gordon, Mailman, Yale-Loehr & Wada, Immigration and Law Procedure; Bernadette Meyler, "The Gestation of Birthright Citizenship, 1868-1898 States' Rights, the Law of Nations, and Mutual Consent," Georgetown Immigration Law Journal (2001).
Lawful permanent residency is a status that allows a foreign national to permanently live and work in the United States, commonly known as having a "green card." Permanent residency is a requirement to apply for naturalization to citizenship. It is a status granted by the United States government after the foreign national has successfully completed an application process, or has successfully entered the United States under the Diversity Visa Program. A successful application can take many years to process, due to multiple factors.
As noted above there are three basic categories by which an immigrant can apply or receiving lawful permanent residency status. There are three additional processes by which a person can receive LPR: K Nonimmigrant status; Legal Immigration Family Equity Act (LIFE); Special Immigrant Juvenile Status (SIJ).
K Nonimigrant Status
The K-1 visa can be used by fiancés of U.S. citizens and accompanying minor children (K-1 and K-2 visas); K-3 visas are for foreign spouses with a K-4 visa category for step-children of U.S. citizens. All K-visa holders are required to file Form I-485 Application to Register for Permanent Residence and Adjust Status after arrival in the United States. K classified immigrants can only apply for permanent status with the same U.S. citizen listed as fiancé, spouse, or step-parent as the sponsor for permanent residency application.
Legal Immigration Family Equity Act (LIFE)
The LIFE program allows for non-resident or non-immigrants who are present in the United States to change immigration status and apply for permanent residency. This change of status can be done in spite of: the manner by which the person entered the United States; the fact that the person has been working within the United States without proper permits; failing to maintain a lawful status while in the United States since entry.
Beneficiary of a qualified immigrant petition or application for labor certification filed on or before April 30, 200
Special Immigrant Juveniles Status (SIJ)
This program is intended for foreign minors who are in the United States who have been abused, abandoned, or neglected. Some children, who do not meet the above criteria, may be able to obtain permanent status if the child cannot be reunited with a parent. If SIJ status is granted the child is a legal permanent resident of the United States; however, the child's parents ARE NOT eligible for LPR with the child as a sponsor.
Naturalization is the process by which a legal permanent resident, who has resided in the United States for at least five years, becomes a citizen of the United States. An immigrant must be a legal permanent resident in order to apply for citizenship. The process can take many years to complete, depending on multiple variables, including accuracy of information provided to the U.S. Citizenship and Immigration Services (USCIS), amount of time to have appointments set for biometric services and the interview, and the results of the applicant's naturalization test and interview. The basic process is as follows:
The "naturalization test" is comprised of four sections: speaking, writing, reading, and civics. Many applicants take a class to prepare for the test, much in the same way that an applicant for graduate school takes the GRE, or a law school applicant takes the LSAT.
The current average processing time for the application (N-400) itself is five months.
Applications for citizenship can be denied. The grounds for denial include:
Deportation, or removal, can occur when a foreign national is found to be in the United States without proper permit or visa, or for breaking U.S. immigration law. Common grounds for deportation of foreign nationals are: criminal conviction, entry into the United States without proper permit (illegal entry), violation of non-immigrant status while in the United States (overstaying visa, working without proper permit), becoming a public charge, falsification of documents. Lawful permanent residents can be deported under some circumstances, including fraud, conviction of a crime within five years of admission with a conviction and sentence of at least one year imprisonment, conviction of a crime of moral turpitude, or commission of an aggravated felony.
The process of deportation begins with the Department of Homeland Security files a Notice to Appear against a foreign national in U.S. immigration court. This notice will inform the individual
The individual, known as the "respondent," is scheduled for a master calendar hearing, at which time the immigrant judge will schedule the individual hearing. In addition, the pleadings, the relief requested, discussions on issue relating to removability and relief, submission of evidence, and future schedule are presented and discussed.
Enforcement of deportation orders is administered by U.S. Immigration and Customs Enforcement (ICE).