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While the title Process Engineer doesn’t appear on attorney Jeff Dailey’s business card, it probably should. A former Big ...
It would be a slight understatement to say that immigration is a hot topic in the United States these days. And yet, with a repeating election cycle, you can expect the topic—and the political rhetoric surrounding it—to somehow get even hotter.
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But like most legal concepts at the center of a national conversation, immigration is often oversimplified by politicians, pundits and the media. When someone from these groups wants to provide a catchy soundbite or write an irresistible headline, they often use the amorphous yet all-encompassing terms “immigration” or “citizenship” as a shortcut to describe more nuanced aspects of the U.S. immigration system.
To clear up any confusion about that system, we thought it was worthwhile to break down—briefly and objectively—the three main ways non-U.S. citizens can legally come to and stay in the United States: citizenship, lawful permanent residency and visas.
U.S. citizenship provides an individual with the most rights and benefits of any legal immigration option. A person can become a U.S. citizen at birth or after.
In order to become a citizen at birth, a person must have been born in the U.S. or one of its territories and be subject to U.S. jurisdiction, or be born to at least one parent who was a U.S. citizen at the time of the person’s birth.
After birth, a person can become a U.S. citizen in two ways. The first is through “derived” or “acquired” citizenship through his or her parents. This method is only for children under 18 years of age and often comes about when a non-U.S. citizen is adopted at an early age by parents who are U.S. citizens.
The other way for a person to become a U.S. citizen after birth is through naturalization, which typically takes about ten months.
There are a number of eligibility requirements that an individual must meet in order to apply for naturalization. This includes already having the status of a permanent resident (which we discuss below) for at least five years before applying, or three years if applying for naturalization as the spouse of a U.S. citizen. This also includes demonstrating proficiency with the English language and knowledge of U.S. history and government and taking an oath of allegiance to the U.S. Constitution.
Non-U.S. citizens can permanently live and work in the U.S. by applying to be a lawful permanent resident and obtaining a Green Card. Lawful permanent residents are entitled to limited rights and benefits as compared to U.S. citizens.
There are broad categories of non-U.S. citizens who are eligible to apply for a Green Card, including:
Different Green Cards have their own specific procedures to follow. However, there are some processes and procedures that apply generally. Once an application for a Green Card has been filed, it may take anywhere from a few months to about a year for the application to be granted.
The third primary way for non-U.S. citizens to lawfully live or work in the U.S. is through a visa. There are two kinds of U.S. visas: non-immigrant and immigrant.
Non-immigrant visas are for travel to the U.S. on a temporary basis. These visas cover people as varied as au pairs (visa category “J”); foreign nationals with “extraordinary ability in sciences, arts, education, business or athletics” (category “O”); performing athletes, artists or entertainers (category “P”); and tourism, vacation or pleasure visitors (category “B-2”). While the amount of time a visa holder can legally stay in the U.S. will vary based on the type of visa, visa holders can apply to extend their stays online.
However, through the U.S. Visa Waiver Program, citizens of 38 countries including Germany, Italy and the United Kingdom need not obtain visas if they are visiting the U.S. for 90 days or less when traveling for business or pleasure. Generally speaking, citizens of Canada and Bermuda also do not need to obtain non-immigrant visas when traveling to the U.S.
Immigrant visas on the other hand, are the first step most non-U.S. citizens must take if they want to eventually live permanently in the United States. Most immigrants obtain visas through family-based or employment-based options.
For family-based visas, each year the U.S. makes 226,000 visas available for family-sponsored applicants. U.S. citizens and lawful permanent residents may file immigrant visa petitions for certain family members such as spouses and children. But unlike U.S. citizens, lawful permanent residents cannot file visa petitions for a parent or a sibling.
As for employment-based options, each year the U.S. makes approximately 140,000 visas available to qualified applicants. Included in this category are the well-known H1-B visas for “specialty occupations in fields requiring highly specialized knowledge” which we discussed in a previous article.
The U.S. also makes 55,000 diversity visas available annually to randomly selected individuals who are from countries with low rates of immigration to the U.S.
Because the U.S. restricts the total amount of family-sponsored and employment-based immigration visas from most countries to seven percent of the worldwide total, some applicants may have to wait years or even decades before their visa applications can be filed, evaluated and granted.
Once a non-U.S. citizen has received an immigrant visa, he or she can apply for a Green Card. But, again, because demand often outpaces supply, some visa holders may have to wait years or decades before they can apply for and receive a Green Card.
Punditry makes for interesting television and immigration talk makes for powerful political soundbites. None of this, however, changes the fact that the United States has an established legal framework in place for foreign individuals who wish to live in the country. Separating the law and nuance from the hype is critical to understanding immigration in our country.
Of course, it’s not a perfect system but it’s also much less fluid than many would have you believe.
Want to read more? Check out these other articles related to immigration.
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