Frequently Asked Questions About US Immigration
Please note that the below questions are frequent ones Anne has gotten in her immigration law practice. They are general statements and the facts of your situation may be different.
How does immigration generally work in the United States?
Immigration is a matter of federal law. Pursuant to the US Constitution, states cannot make laws concerning immigration, only the federal US government can.
The United States of America has 3 branches of government: Legislative, Judicial, and Executive. The Legislative Branch (Congress) makes the laws. The Judicial Branch (Courts) interprets the law and resolves disputes or prosecutions under it. The Executive Branch headed by the President, enforces the law.
The US Constitution places the most control over immigration in the Executive Branch. Post 9/11, immigration has gotten stricter. It is now handled primarily by 4 agencies in the Executive Branch:
- United States Citizenship & Immigration Services agency (USCIS) - immigration
- US Department of Homeland Security (DHS) - border enforcement and prosecution
- US State Department - regulates visas and travel to the United States by foreigners
- US Department of Labor - sets policies for hiring of foreign workers
What do I need to come to the United States?
Generally, a foreigner needs: 1) a valid passport from their home country; and 2) a visa.
What is a visa?
A visa is a permit given by the US government for a foreigner to enter the United States for a period of time. Usually, it is a stamp placed in your passport.
There are MANY different types of visas with different purposes and eligibility requirements, but generally they are divided into 4 main categories: Visitor, Student, Employment and (permanent) Immigrant.
The State Department’s website explains more about visas, but if you are seeking a visa for employment or immigration, you should consult an immigration attorney to help you. Incorrect or incomplete filings can mean LONG delays and costs or even denial.
Do I always need a visa?
No. 35 countries are eligible for the Visa Waiver Program. These countries are mainly the EU, Australia, Singapore, and South Korea. However, this program is ONLY good for temporary travel less than 90 days and requires an electronic passport and requires advance permission.
Latin American countries are NOT included in it, so immigrants from there need to obtain a visa.
What happens if I entered without a visa or overstayed my visa?
You are in the US ILLEGALLY.
You need to talk to an immigration attorney about your case. Immediately. Visa overstays or illegal entries can subject you to removal proceedings from the US and trigger bars of 3-10 years that prevent you from returning.
What is EWI?
EWI means “entered without inspection.” It means you entered without a visa and illegally and it can pose a barrier to your being able to stay in the country as described above.
What are my chances of deportation or removal?
If you are in the US illegally, you are subject to removal at any time.
Removal starts most often with someone informing on you to the USCIS or in connection with a criminal matter or sometimes if you make a mistake when applying to stay in the United States. If this might apply to your situation, you need to talk to an attorney.
What happens if I am foreign and get arrested in the United States?
If you are an alien and arrested or under investigation by the police for ANY type of crime, you need an attorney immediately.
Criminal convictions have HUGE consequences in immigration law. There is no duty for the Courts or your criminal attorney to inform you of them. You should not accept a plea deal until you have talked to a lawyer who knows BOTH immigration and criminal law.
What is removal?
A removal proceeding is a formal proceeding which the US government attempts to remove you from the country.
Removal proceedings are brought by the DHS in the Immigration Court. The government will take you into custody and you will be presented with a formal charging document, called a Notice to Appear. You will be given a hearing, but if you are in removal, you NEED to consult and hire an attorney immediately to defend you.
If I am in removal, can I get a bond?
It depends. Typically, a bond is available, upon a hearing, if there is a viable way for you to stay in the country, legally, and if there is not any reason that would require you being mandatorily detained.
If you are in any kind of removal proceedings, you need an attorney, immediately.
I’m here illegally. What are my options?
Each case is different. However, with a good immigration attorney, there are some options and ability to remain in the United States and become legal. Because each case is different, if you are illegal, you need to talk to an attorney immediately.
What is Adjustment of Status?
Adjustment of Status is the term for an alien moving from 1 class of alien to another. Most often it refers from someone moving from a non-immigrant (temporary visitor) or an immigrant (permanent) permission to be in the US.
For example, someone who entered the US, legally, as a tourist or student, but met someone and fell in love and decided to get married to them and would like to stay permanently would seek to adjust their status from a non-immigrant to an immigrant.
You can read more about Adjustment of Status at the USCIS website.
What is a Green Card? / How do I get one?
A “Green card” is a card that shows a person has adjusted their status to that of a lawful permanent resident in the US and is now entitled to live and work in the US permanently.
Obtaining a green card can be a difficult process and a long one. You should consult with an immigration attorney about your specific case.
Typically, however, most aliens adjust status to permanent residency through Family Based Immigration or Employment Based Immigration.
How does Family Based Immigration work?
A US Citizen or lawful permanent resident (LPR) / green-card holder can sponsor their immediate relatives. Immediate relatives are spouses, children and parents.
This is a complicated area of the law. The length and requirements of the process depend on the family connections and specific facts of each case. Spouses of US Citizens, for example, are usually adjusted faster than others because they are given first priority in processing applications.
Typically, the USC or LPR, files an I-130 Petition with the US Government requesting permission and a visa from them to bring a relative into the country. Once that is granted, the alien files an I-485 application to “adjust” their status to permanent immigrant.
The alien may also file other applications such as an I-765, requesting authorization to work or an I-131, requesting permission to travel during the adjustment process.
If you are seeking to adjust, it is wise to consult with an immigration attorney so that your specific case can be prepared and handled in the most efficient manner.
How does Employment Based Immigration work?
Employment based immigration is also a complicated area of the law.
There are several classes of visas available to permit an alien to come to the United States to work on either a temporary or permanent basis.
If you are a US company or individual interested in sponsoring an alien to come to the United States for work purposes, you may have to obtain certification by the Department of Labor that such a position could not be filled by a US resident.
With unemployment and the economy in the state that it is, you should consult with an attorney to help you obtain this certification and make the process efficient.
How long will immigration take? / How much will it cost?
These questions are asked often, very important, but difficult to answer.
In reality, immigration can be a slow process- often taking years to complete from start to finish. The US government provides some insight as to general timelines, but there is a backlog for visas for non-spouses, for example.
Typically, one can expect a 1-2 year time for uncomplicated marriage-based full adjustment (i.e., obtaining a green card). If there are complications or immigration is non-marriage based, the waiting is longer.
It is imperative that you seek good legal advice, because an incomplete application can mean that your place in line is lost and the wait turns into years, or worse, denial and having to start over.
Immigration costs can range. The USCIS sets fees, which do increase periodically. Check the USCIS website for the current fees.
If you are in need of immigration assistance, you should consult with an attorney who will work with you to help you find an appropriate budget and payment plan. Although the costs are not insignificant, the reward is a lifetime able to live and work in the United States with family and friends.
Deportation Defense Attorney | Inmigracion Abogado en Estados Unidos en Houston Texas
We invite you to contact Anne E. Kennedy, Attorney At Law at 713-862-8110 for all of your Deportation Defense Attorney an Inmigracion Abogado questions.