We know that the immigration and visa process can be complex and confusing. Bartlett
& Weigle is here to help you better understand your options as well as represent
you in navigating through the process.
What is an Immigrant?
An immigrant is a non-U.S. citizen present in or coming to the United States
with an intent to reside there permanently. The laws governing immigration in the
United States presume that any foreign-born person (also called a "foreign national")
coming to the United States has the intent to become a lawful permanent resident
(LPR). An LPR is someone who has been granted an immigrant visa (known as
a "green card"). Legal immigrants are the same as LPRs, and they may live
and work in the U.S. indefinitely as long as they do not commit any offenses that
would subject them to deportation. (Hint: for an immigrant, think "permanent")
What is a Non-immigrant?
A non-immigrant is a foreign national permitted to enter the U.S. for a limited
duration for purposes such as travel, school, temporary employment, and business
investment (See below for a complete list of the non-immigrant visa categories.).
Non-immigrants are granted non-immigrant visas. (Hint: for a non-immigrant, think
How does one become a legal immigrant?
There are three types of immigration through which a person becomes a legal immigrant,
1. Family-based: A U.S. citizen may sponsor his or her spouse, parent
(if the sponsor is 21 or older), children, brothers and sisters. An LPR may sponsor
his or her spouse, minor children and adult unmarried children. Sponsors must have
an income level that exceeds nationally established poverty guidelines by 25% and
must promise in writing to support the family member(s) he or she wishes to sponsor.
The number of family-based immigrants is limited to 480,000 per fiscal year. Of
this number, there is no limit to the number of visas available to:
- Spouses of U.S. citizens
- Unmarried minor children of U.S. citizens (includes stepchildren under some circumstances)
- Parents of U.S. citizens
(These three types are called "immediate relatives".)
For family-based immigrants who are not immediate relatives, there is a Family Preference
System that limits the number of immigrant visas to different foreign nationals,
as illustrated in the table below. Backlogs in the quotas are common. For more accurate
information regarding visa availability, see the Home Page
for current dates.
Family Preference System
unmarried adult children
Spouses and minor children
2nd A preference
unmarried adult children (21 or older)
2nd B preference
Married adult children
U.S. citizen (21 or older)
brothers and sisters
2. Employment-based: Through the Labor Certification Process as well
as through several methods for exceptional foreign nationals, including National
Interest Waivers, employers can sponsor a foreign national for admission as an LPR.
The process usually involves demonstrating to the Department of Labor that there
are no available U.S. workers for the job for which an immigrant visa is sought.
The number of employment-based visas available each fiscal year is limited to 140,000.
There are five types of employment-based immigrant visas, and they are ranked by
priority of the needs of the U.S. economy and employers. The five types that comprise
the Employment Preference System are summarized in the table below.
Employment Preference System
Up to 40,000 visas/year
Priority Worker category, made up of aliens of extraordinary ability, outstanding
professors and researchers, and certain multinational executives and managers
Up to 40,000 visas/year
Members of the professions holding advanced degrees (higher than bachelor's degree)
or aliens of exceptional ability
Up to 40,000 visas/year
Skilled workers, professionals, and other workers
Up to 10,000 visas/year
Special immigrants, including ministers, religious workers and others
Up to 10,000 visas/year
Persons investing between $500,000 and $3 million in a job-creating enterprise in
the U.S. that employs at least 10 U.S. workers per investor
3. Refugees/Asylees: Refugees are foreign nationals located outside
the U.S. who want to enter the U.S. to escape persecution in his or her home country.
An Asylee is a foreign national who is already in the U.S. that wants to remain
because he or she fears persecution in his or her home country.
Refugee and Asylum applicants must prove that they have a well-founded fear of persecution
based on one of the following recognized grounds:
- Membership in a social group
- Political opinion
- National origin
There is no limitation on the number of persons who may be granted asylum in a given
fiscal year. Limitations on the number of refugees admitted annually are determined
by the President and are divided up by world regions. For example, the number for
Fiscal Year 1998 was 78,000. Further, only 10,000 asylees may become LPRs in any
fiscal year, while no limit is placed on refugees.
How does one become a Non-immigrant?
There a number of different types of non-immigrant visas (NIV), and they range in
duration from several days to as many as six years. Some NIVs must be applied for
in advance through the United States Citizenship and Immigration Service and then
reviewed and issued by the State Department. Other NIVs are reviewed by the State
Department alone. An important distinction to make when considering NIVs is between
the terms "visa" and "status." They are not the same, and confusion sometimes arises.
The visa is an actual document applied for that gives the NIV holder a legal basis
to come to the U.S. Status is granted to the NIV applicant when he or she reaches
the U.S. border.
For example, for an H-1B temporary professional worker, the person has an H-1B visa
that is physical document in his or her passport. Once the person shows up at the
U.S. border with that visa and is admitted into the U.S., he or she is in H-1B status.
The status is important because it is time-sensitive. A person may still have a
visa in his or her passport but not be in the U.S. legally because he or she has
stayed beyond the status duration granted. Status can be extended or changed by
USCIS Service Centers in the U.S. as well as through U.S. consulates abroad. The
different types of NIVs currently available are as follows:
- Diplomatic Employees and their Households
- Business Visitors (B-1) and Tourists (B-2)
- Transit Visa (pass-through at airport or seaport)
- Crew Member (air or sea)
- Treaty Investors or Treaty Traders (from countries with whom the U.S. has a treaty
of commerce and investment)
- Employees of International Organizations (IMF, UN, etc.)
- Temporary Workers (professional, agricultural, temporary/seasonal, trainees)
- Representatives of International Media
- Exchange Visitors (educational, au pairs, professors, researchers, etc.)
- Fiances and Fiancees
- Intracompany Transferees (executives, managers, or having proprietary knowledge)
- Language and Vocational Students
- NATO Employees
- Extraordinary Ability Aliens
- Athletes, Entertainment Groups (e.g., orchestras) and Support Personnel
- Cultural Exchange Visitors
- Religious Workers
- Criminal Informants