United States Immigration Law

Most people who are entering the United States come into the U.S. as tourists, and have little to no difficulty entering the United States. It is not difficult to apply for a tourist visa, and the U.S. permits the citizens of many foreign nations to enter as tourists without first obtaining a visa.

People who enter the United States to attend a post-secondary educational institution, such as a college or university, may be able to get assistance with the process from the institution.

Applying to Enter the United States

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.

  • An attorney may be able to help the applicant 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.
  • If the foreign national falls within a category of person who is automatically excluded from immigration, an attorney may be able to help the person obtain a waiver that will allow entry into the United States.

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.

Different Ways to Legally Enter the United States

Depending upon your plans, circumstances, and the amount of time you wish to stay in the country, you may choose a visa or immigration option that best suits your needs: 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.

If you are subject to certain forms of political persecution or discrimination in your home country, you may also qualify for some form of asylum.

Be sure that you understand whether you are applying for an immigrant visa or a non-immigrant visa. Certain forms of non-immigrant visa require that you spend a defined period  of time outside of the country before you can qualify for readmission or for an immigrant visa. 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.

If you have any question as to the best basis for your application to enter the United States, 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.

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. Some applicants may for exceptions to some of the general requirements, depending upon such factors as the applicant's age, or physical disability.

What is Naturalization

Naturalization is another word for becoming a citizen.

  • In simple terms, 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.
  • 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 U.S. Citizenship & Immigration Services.

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.

Residency Requirements

Before you can be naturalized, you must be lawfully admitted to the United States for permanent residence for a period of at least five years, with limited absences from the United States during that period.

  • To qualify for naturalization, you must be present in the U.S. for 30 of the past 60 months. Absences of between 6 months and 1 year are presumed to break the continuity of residence, and an absence of more than 1 year will 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. If possible, apply at least 30 days before you leave. Your spouse and dependent children may also benefit from this exception, if it is granted and they have travelled with you.

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.

Even if you have been issued a green card or reentry permit, your term of residence is not preserved.

Think carefully before giving up resident tax status, as doing so may be considered evidence of your intention to abandon permanent residence.

Naturalization for Dependent Minors

If a parent's application for naturalization is approved, most children below the age of 18 and 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 when you naturalize, it will be substantially more difficult to obtain citizenship for your child at a later date.

How to 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 USCIS within the United States. Applications for naturalization are available from the USCIS.

Which People Are Ineligible For Entry Into The United States

For purposes of public health and safety, the United States prohibits 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 J-1 exchange visitors must live abroad for two years before they qualify for reentry as an immigrant. If you are found to be ineligible for a visa, consult with an immigration officer consular officer as to the possibility of obtaining a waiver.

How to Get Admitted Into the United States as a Treaty Investor

A Treaty Investor is a person who wants to start a new qualifying business or purchase an existing qualifying business within 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 to 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 intention 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. For example, if an immigration officer concludes that the holder of a temporary work visa intends to immigrate to the United States, the worker may be denied entry.

Helping Family Members Immigrate to the United States

Once you have obtained citizenship, or have gained permanent residency and have been issued a Green Card, you may sponsor qualifying family members for immigration:

Permanent Residents

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

Naturalized Citizens

Once naturalized, U.S. citizens may sponsor the entry of their spouse, their children (regardless of their marital status), and, if the citizen is over the age of 21, their parents, brothers and sisters. Please note that there are annual quotas on the immigration of adult children, brothers and sisters, and the waiting period for immigration can be considerable.

Can You Remain in the United States if You Marry a U.S. Citizen

Marriage to a U.S. Citizen does not automatically give the non-citizen spouse the right to remain in the United States. The non-citizen spouse may apply for residency, either before or following marriage to a U.S. Citizen.

Fiancés of U.S. Citizens

U.S. citizens may petition the USCIS to have their fiancé(e)s admitted to the United States. The petitioner must document that:

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

If the petition is approved, the foreign fiancé 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.

If Your Visa Application is Rejected Are You Barred from Entering the United States

Although a visa denial is disappointing, most visa denials do not result from findings that will prevent the applicant from again applying for a visa.

Following a visa denial, the applicant may benefit from consulting an immigration attorney in order to fully understand the reasons for the denial, and how to overcome the basis of your rejection when again applying for a U.S. Visa. For non-immigrant visas, a lawyer may help the applicant understand how to better document your ties outside of the United States, demonstrate that applicant has sufficient assets for self-support during the proposed stay, and otherwise show that the applicant's circumstances have changed since the time of the initial rejection.

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 May 8, 2018.