United States Immigration Law


If I Want To Immigrate, Either Temporarily or Permanently, To The United States or Canada, Should I Apply By Myself?

While most people will want to apply for travel visas on their own, many potential immigrants will benefit from consulting an attorney before applying for residence in the United States or Canada. An attorney may be able to help you avoid being classified within a category of immigrant for whom the annual quota has been filled, or to apply in a category which will increase the chance of your being admitted. An attorney may also help you avoid making mistakes in the application process which might slow your application, or which might cause rejection. You may also be able to obtain a waiver, if you fall within a category of person who is automatically excluded from immigration.

Some immigration attorneys describe their job as not only knowing the immigration law, but as forcing the U.S. Citizenship and Immigration Services to follow its own regulations -- even if you believe you understand the complex immigration code, and even if you end up applying for immigration on your own, consulting an attorney or having your paperwork reviewed before you file it may help you avoid problems.

Are There Different Ways To Be Allowed Into The Country?

Yes. Depending upon your plans, circumstances, and the amount of time you wish to stay in the country, you may choose anything from a tourist visa through an application for citizenship. You may qualify for a student visa, a cultural exchange visa, a temporary work visa, or as a potential substantial investor. You may also qualify for some form of asylum, if you are subject to certain forms of political persecution in your home country. If you have any question as to the best basis for your applicaiton, you should consider discussing your various options with an immigration attorney, who will be able to help you decide how to apply for entry on the basis of the facts of your case.

Be sure you know if you are applying for an immigrant visa or a non-immigrant visa. Certain forms of non-immigrant visa require that you spend a certain amount of time outside of the country before you can qualify for readmission -- if you wish to immigrate, you will not qualify on the basis of a non-immigrant visa, and you may find yourself in a difficult situation when your visa expires.

What Are The Requirements For Immigration Into The United States?

A prospective immigrant must meet every requirement for naturalization, before being allowed to reside in the United States. Please note that you may qualify for certain exceptions to the requirements, depending upon such factors as your age, or physical disability.

What is "Naturalization"?

"Naturalization" is another word for becoming a citizen. In order to become a "naturalized citizen" of the United States, you ordinarily must be at least 18 years old. You must also have "good moral character", in that you do not have a recent or serious criminal record, have not derived income from certain illegal sources, are not a drunkard or polygamist, support your minor children, must not have previously been deported without lawful reentry, and have not lied to obtain benefits under the Immigration and Nationality Act. This definition is a summary, so consult an immigraiton lawyer to see if an exception might apply to your case.) Most applicants are required to read, write, speak and understand the English language, and to demonstrate basic familiarity with American history. Full details on the requirements for naturalization are available through the Immigration and Naturalization Service.

Additionally, before you can be "naturalized", you must be lawfully admitted to the United States for permanent residence for at least five years, with limited absences from the United States during that period. (Present 30 of the past 60 months, with absences of between 6 months and 1 year being presumed to break the continuity of residence, and an absence of more than 1 year almost always breaking continuity.) If you must be absent for more than 1 year, for reasons of employment, check to see if you qualify for an exception to this rule -- and, if possible, apply at least 30 days before you leave. Even if you have been issued a green card or reentry permit, your term of residence is not preserved. Your spouse and dependent children may also benefit from this exception, if it is granted and they have travelled with you. Think carefully before giving up resident tax status, as this may be considered evidence of your intention to abandon permanent residence. This one-year time limitation does not apply to the spouse or child of a member of the Armed Forces of the United States, or of a civilian employee of the U.S. Government stationed abroad pursuant to official orders.

It is important to be sure that you qualify for naturalization before you apply. If you did not accurately disclose your criminal record when applying to immigrate, or have been convicted of certain crimes since the time of your immigration, for example, the review of your application for naturalization may instead result in extradition.

Please note that if you believe you qualify for citizenship on the basis of your parentage, it is usually best to resolve that claim before applying for any other immigration status.

Can My Minor Children Also Be Naturalized?

Yes. Most children below the age of 18 who reside in the United States with the applicant parent will automatically qualify for citizenship, if the parent's application is approved. While you do not have to seek citizenship for your child, it will be substantially more difficult to obtain citizenship for your child at a later date.

How Do I Obtain Application Materials?

The necessary forms for immigration, which outline the many steps of the process, are available through the consular office nearest your place of residence, or from the U.S. Citizenship and Immigration Services within the United States. Applications for naturalization are available from the Immigration Service.

Which People Are Ineligible For Entry Into The United States?

For purposes of public health and safety, the United States probiits issuance of visas to certain applicants. For example, the United States will refuse visas to persons who have a communicable disease, have dangerous physical or mental disorders, have committed certain criminal acts, are considered to be terrorists, subversives, members of a totalitarian party, or former Nazi war criminals, have used illegal means to enter the United States, or are ineligible for citizenship. Some former exchange visitors must live abroad for two years before they qualify for reentry. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If you are found to be ineligible for a visa, consult with a consular officer as to the possibility of obtaining a waiver.

How Do I Get Admitted Into The United States As A "Treaty Investor"?

A "Treaty Investor" is a person who wishes to start a new qualifying business, or purchase an existing qualifying business, in the United States. Treaty investors receive a non-immigrant visa, with no maximum periods of stay. The status is renewable indefinitely, and the successful applicant may work in the United States.

To qualify as a "Treaty Investor" you must:

  • Be a citizen of a country with which the U.S. has a Treaty of Commerce & Navigation;

  • Have invested or be actively in the process of investing a "substantial amount of money";

  • Invest in an active commercial enterprise; and

  • Have an active role, managing and directing the business.

How Do I Get Admitted Into Canada As A "Business Immigrant"?

Canada allows "business immigrants" into the country in three categories: as entrepreneurs, investors, or as self-employed persons. Application forms and information can be obtained through the Canadian Embassy nearest your place of residence. Applicants will be required to undergo medical and security checks.

Entrepreneurs

An entrepreneur is a person "who intends or has the ability to establish, purchase or make a substantial investment in a business that will make a significant contribution to the economy, whereby employment opportunities will be created or continued for one or more Canadian residents other than the entrepreneur and the person has the intention and ability to provide active and ongoing participation in the management of the business."

The amount of money required to qualify as a minimum substantial investment will vary, depending upon where you intend to settle. Provinces may also prefer that your investment fall within certain categories of business, such as manufacturing, new technology, agriculture, tourism, training facilities, export trading, and medical facilities. They may also classify certain types of investment as unacceptable, such as import of finished goods for resale, speculative real estate investment, and certain service businesses such as fast food.

Prior to applying as a business immigrant, consult an attorney familiar with the preferences of the province where you wish to settle, to see if you have selected an appropriate business. You should prepare a business plan with the assistance of your attorney and accountant, for review by the Ministry. In most cases, if your application is successful, you will be granted conditional landed immigrant status. If you establish your business on schedule, and comply with the Ministry guidelines, you will obtain permanent landed immigrant status.

Investors

The investor immigrant is a person who has operated, controlled or directed a financially successful business and has, by his or her own endeavour accumulated a significant net worth, and a willingness to make a substantial financial investment.Provinces may impose restrictions upon investment, such as requiring substantial investment for several years in an eligible business (e.g., irrevocable investment in a qualifying business for five years). Check with the province where you intend to settle, to see if it maintains a list of qualifying businesses.

While this option will allow you to immigrate without being actively involved in a Canadian business, and is comparatively fast and easy, you should take great care to ensure that you are making a judicious invesment. Thoroughly investigate the business before investing your money.

Self-Employed Persons

If you intend to, and are able to, establish a business in Canada which will provide you with employment, while allowing you to contribute significantly to Canada's economic, cultural, or artistic life, you may wish to pursue this option. Typical self-employed immigrants include artists, writers, athletes, farmers, and performers.

How Do I Get Admitted Into The United States As A Temporary Worker?

There are numerous categories of "temporary worker". If you qualify for a category, and the annual quota for temporary workers in that category has not yet been filled, you may apply for a nonimmigrant visa by filing a petition with the United States Immigration and Naturalization Service. Most persons should apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Categories of temporary worker include:

  • Persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education.

  • Certain temporary or seasonal agricultural workers;

  • Certain temporary or seasonal nonagricultural workers, pursuant to a temporary labor certification issued by the Secretary of Labor;

  • Trainees, other than medical or academic;

  • Intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;

  • Persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;

  • Individual or team athletes, or members of an entertainment group that are internationally recognized;

  • Artists or entertainers who will perform under a reciprocal exchange program, or a program that is culturally unique; and

  • Participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country.

Applicants may be required to evidence that they have ties outside of the United States which they have no intetion of abandoning. All temporary visas are for a fixed period of time, although in some cases an extension will be granted to allow the completion of services. After the expiration of the visa, the worker will have to reside outside of the United States for a fixed period of time before qualifying for readmission as a temporary worker. It should be noted that the granting of a temporary worker visa does not guarantee admission into the United States.

If I Immigrate Or Obtain Permanent Residency, Can I Bring My Family Into The United States?

You may sponsor certain family members for admission, once you have obtained citizenship, or have been issued a "Green Card".

Green Card Holders

You may petition for the entry of your spouse, and your unmarried children. There are annual quotas limiting the number of relatives allowed into the United States under these petitions.

Naturalized Citizens

You may sponsor the entry of your spouse, your children (regardless of their marital status), and, if you are over the age of 21, your parents, brothers and sisters. Please note that there are annual quotas on the immigration of adult children, brothers and sisters

If I Marry Or Intend To Marry A Citizen, Will I Automatically Qualify To Remain In The United States?

No. You will, however, be entitled to apply for residency, either pending or following your marriage.

Fiancees of U.S. Citizens

U.S. citizens may petition the USCIS to have their fiancées admitted to the United States. The petitioner must doucment that:

    • The petitioner is a United States Citizen;
    • The couple met in person within the prior two years;
    • That both the petitioner and the fiancee are able to marry; and
    • That the couple will marry within 90 days of the fiancee's admission into the United States.

If the petition is approved, the foreign fiancee must still apply for a visa at the United States consulate closest to his or her place of residence. A successful applicant will be authorized to obtain employment in the United States for 90 days. After marriage, the immigrant spouse should apply for permanent residence.

Spouses of U.S. Citizens

If you are in the United States legally, your citizen spouse must file a "relative petition" and an "application for permanent residence," with the USCIS, along with required supporting documentation. An interview of the non-citizen spouse will be scheduled, typically 6 - 12 months after the application is submitted. The non-citizen spouse may apply for authorization to work in the United States or for "advance parole" to travel abroad, pending the USCIS interview.

The purpose of the USCIS interview is to ensure that the marriage is "bona fide" -- that is to say, it is not simply a device to allow the non-citizen spouse to gain access to the United States. If the marriage is found to be valid and the petition for permanent residence is approved, the non-citizen spouse will be issued a 2-year conditional "Green Card." During the last 90 days of that 2-year period, the couple must petition the USCIS to remove the condition, providing documentation that the couple has a bona fide marriage. If this petition is not filed, the "Green Card" will expire. If the USCIS accepts the documentation submitted with the petition, the condition will be removed.

My Petition Was Rejected - Does This Mean I Can Never Come To The United States?

No. You may reapply for a visa. You may wish to consult with an immigration attorney so you can fully understand the reasons why you were rejected, and how you can overcome the basis of your rejection if you apply again -- how you can better document your ties outside of the United States, demonstrate that you can support yourself during your stay, or otherwise show that your circumstnaces have changed since the time of your initial rejection.

Notice: Immigration laws and regulations can change very quickly, and you should not rely upon this article to reflect the latest changes in the law. Obtaining a non-immigrant visa can be complicated, and visa applications may be denied. While many individuals successfully navigate the application process on their own, it is often beneficial to utilize a qualified immigration attorney.

Copyright © 2002 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Nov 7, 2014.