This page has a list of comm0n Immigration terms you should know, as well as frequently asked immigration questions and answers. For a free immigration consultation, please call 407) 897-8843 or send an email to the Florida Law Firm.
USA Immigration Terminology
Adjustment of Status (I-485): The final stage of the green card process involving the filing of paperwork with the USCIS within the U.S., rather than filing at an embassy or consulate abroad, known as consular processing. Applicants may only file for adjustment of status if they are inside the United States, a visa is immediately available, and they are not barred from doing so due to an immigration violation, entry without inspection, criminal conduct, or other reasons.
Application: A formal request for a green card or nonimmigrant visa. In the case of most green cards and nonimmigrant visas, an application cannot be made until one obtains proof that one is qualified through an approved petition. In some cases, a petition is not required and only an application is needed.
Applicant: The person who makes a formal request for a green card or nonimmigrant visa. In some cases, one cannot be an applicant until a petition is approved. Depending on where one is in the overall immigration process, one can be called an applicant or beneficiary.
Beneficiary: The individual who benefits from a petition by becoming qualified to make an application for a green card or visa.
Department of Labor (DOL): The U.S. government agency involved with many types of employment-based green cards. The DOL receives applications for Labor Certifications and decides whether or not there is a shortage of American citizens available to fill a particular position in a U.S. company.
Department of State: The U.S. government entity that operates U.S. embassies and consulates. It is the DOS that determines who is entitled to a visa or green card when the application is filed outside the U.S. at U.S. embassies or consulates. The USCIS under the Department of Justice regulates immigration processing inside the U.S.
Diversity Program: The annual lottery program held for nationals of certain countries who want to immigrate to the U.S. It is called the diversity lottery program because this program is available to nationals of countries with low immigration rates to the U.S.
Green Card: A popular term used to describe the Alien Registration Receipt Card, a card that proves one is a United States Permanent Resident. The green card (actually pink in color) allows you to re-enter the U.S. without a visa, work without a work permit, and allows you to permanently reside in the U.S. unless you abandon your U.S. residence or commit certain types of crimes.
I-94 Card: A small green or white card given to all nonimmigrants when they enter the U.S.. The I-94 card serves as evidence that a nonimmigrant has entered the country legally and also governs the non-immigrant’s authorized period of stay in the U.S.
Immediate Relative: Refers to spouses of U.S. citizens, children under 21 with at least one U.S. parent, or parents of children over 21 who are U.S. citizens. If you are an immediate relative of a U.S. citizen, you are eligible to receive a green card immediately.
Inadmissible: Refers to potential immigrants who are disqualified from obtaining visas or green cards because they are judged by the U.S. government to be in some way undesirable. Inadmissibility is usually based on criminal, financial, or national security grounds. In many cases, inadmissibility can be overcome.
Labor Certification: A process that allows you to get a green card through a job offer from a U.S. Employer, if the U.S. Employer proves that there are no qualified U.S. workers available and willing to take the job. People who fall under the employment second and third preferences usually need labor certifications in order to get their green cards.
National Visa Center (NVC): A private company under contract with the Department of State for the purpose of processing the final green card application process by sending forms and instructions to the applicant and forwarding the file to the appropriate U.S. consulate abroad.
Naturalization: Refers to foreign individuals who take legal action to become U.S. citizens. A naturalized U.S. citizen has virtually the same rights as a native-born American citizen. Almost everyone who goes through naturalization must first have held a green card for several years.
Non-immigrant: An individual who comes to the U.S. temporarily for some particular purpose but do not intend to remain permanently in the U.S. An Immigrant is one who comes to the U.S. to take up permanent residency. There are many types of non-immigrants. Students, temporary workers and visitors for instance. A nonimmigrant visa is a visa to allow a person to enter the U.S. temporarily for some particular purpose. An immigrant visa is a visa issued to a person who has been approved for a green card.
Parole or Advanced Parole: Allows a person, under certain circumstances, to enter or re-enter the United States for humanitarian purposes, even when he or she does not meet technical visa requirements.
Permanent Resident: A non-U.S. citizen who has been given permission to live permanently in the U.S. Permanent resident and green card holder refer to exactly the same thing.
Petition: A formal request that one be legally recognized as qualified for a green card or certain nonimmigrant visas.
Petitioner: The U.S. person or business who makes the formal request that one be legally recognized as qualified for a green card or nonimmigrant visa. The petitioner can be a U.S. citizen, green card holder, or U.S. business.
Political Asylum: Refers to a humanitarian process whereby those in the United States who seek save haven from being returned to their home country for political, religious or other reasons, are allowed to stay in the United States. A refugee is one who seeks safe haven while outside the United States. A refugee or asylee can eventually get green cards.
Preference Categories: Groups of people who fall into certain categories (or preferences) and who are given their chance at green cards under the annual quota system according to their respective preference category. Preference categories are broken into two broad groups: family preferences and employment preferences.
Priority Date: Refers to a green card applicant’s “ticket in line”. Those who are subject to the annual quota under the preference system are given priority dates The date on which one first makes a formal filing for a green card is the priority date. Each month the U.S. Department of State publishes a “Visa Bulletin” which tracks the progress of priority dates for each preference category.
Quota: Refers to those qualified green card applicants who are allowed into the U.S. in limited numbers, while others are allowed to enter the U.S. in unlimited numbers.
Removal (formerly deportation): Refers to a legal proceeding in a U.S. Immigration Court to decide whether or not an individual will be allowed to remain in the U.S. If an individual is found removable, he or she can then be forced to leave the U.S. Those who are removed or deported are barred from returning to the U.S. for at least five years unless a special waiver is granted by the USCIS.
Special Immigrants: Special groups of people (religious workers, former U.S. government workers, foreign doctors who have been practicing medicine in the U.S. for many years) who qualify for green cards under the annual quota.
Sponsor: See Petitioner.
Temporary Protected Status (TPS): TPS status allows someone to temporarily stay in the U.S. if they come from certain countries designated by law as experiencing conditions of war or natural disasters. TPS allows someone to live and work in the U.S. temporarily, but does not lead to a green card.
Unlawful Presence: Generally refers to either being present in the U.S. after entering without inspection (EWI) or after staying past the expiration date on an I-94 card, though there are other situations where unlawful presence accrues as well such as in the case of 3 and 10 year bars. One who was unlawfully present for 180 days and then leaves voluntarily, before being placed into removal proceedings, is subject to a three-year bar on returning to the U.S. If the period of unlawful presence is a year or more, then the bar is for ten years. A Duration of Status (which usually occurs for F-1 or J-1 visa holders) overstay does not qualify as unlawful presence unless an actual determination is made by the USCIS or an Immigration Judge.
U.S. C.I.S. or U.S. Citizenship & Immigration Services: The U.S. government agency having responsibility for most immigration matters including border patrol and adjudicating immigrant and nonimmigrant visas.
Visa Waiver Program: Allows nationals from certain countries to come to the U.S. without a visa as tourists for 90 days. Persons who enter under the Visa Waiver Program are issued a green-colored I-94 card. Visa Waiver entrants cannot change their status (unless the change is based on an immediate relative spouse petition) or extend their stay.
General Immigration Questions and Answers
1. How can an individual obtain permanent residence through marriage to a U.S. citizen?
2. How can an individual become a permanent residence through relatives?
3. How can an individual become a citizen of the U.S.?
4. What is Political Asylum?
5. What is the Diversity Visa Lottery?
6. What if I stay in the U.S. illegally?
7. What is the difference between a nonimmigrant visa and an immigrant visa?
8. What is a PERM/Labor Certification?
9. How can one obtain a green card without the Labor Certification process?
10. What is a national interest waiver (VIW)?
11. What is INA Section 245(i)?
12. What is an H-1B visa?
1. How can an individual obtain permanent residence through marriage to a US citizen?
If the US citizen resides in the US:
An application to the USCIS office having jurisdiction over the U.S. citizens (petitioners) residence is the first step. Usually, this is a one-step filing, meaning that one applies for petition approval, adjustment of status, and work authorization all at the same time. The USCIS will issue an employment authorization document (EAD), usually within 90 days of applying. The USCIS then arranges marriage interviews for the couple. This may take from two months to over two years, depending on the USCIS jurisdiction. The USCIS will examine documents and question the applicants to determine the bona fides of the marriage. Documents one should be prepared to produce include: wedding photographs, tax returns, joint bills, joint leases or deeds, joint bank accounts, insurance documents naming each spouse as beneficiaries. If the immigration officer suspects that the marriage was entered into solely for immigration purposes, USCIS may investigate at the candidate’s home and place of work. If the marriage is less than 2 years old at the time of interview, then the green card will be issued as conditional, and it will expire in 2 years. The applicant and spouse must file papers to have the conditions removed within the 90 day period prior to the expiration of the green card. They must then return for another interview to have the conditions removed.
If the US citizen resides abroad, the paperwork must be submitted and processed at the appropriate US consulate. The process is nearly the same but the waiting time is less – from two to six months.
2. How can an individual become a permanent resident through relatives?
There are five categories under which an individual can obtain permanent residency through relatives. They are:
Immediate relatives of US citizens: There are no quotas and no priority date waiting for immediate relatives of US citizens. They are defined as: spouses of US citizens (including widows and widowers who were married to the US citizen for at least 2 years and are applying within 2 years of the citizen’s death); unmarried people under 21 who have at least one US citizen parent; parents of US citizens, if the US citizen is over 21.
First Preference-Unmarried sons and daughters of US citizens (23,400 per year, plus unused visas from the fourth Preference);
Second Preference-(F2A) Spouses and unmarried children of permanent residents (114,000 per year, plus excess over 226,000 the floor for family based immigration, plus unused visas from the first Preference); (F2B) Unmarried sons and daughters of green card holders who are at least 21.
Third Preference-Married sons and daughters of US citizens (923,400 per year, plus unused visas from the first and second Preferences);
Fourth Preference- Brothers and sisters of US citizens (65,000 per year, plus unused visas from the first second and third Preferences).
The waiting period to obtain an immigrant visa through relatives will vary depending on one’s preference category and one’s country of origin. Nationals of Mexico, India, People’s Republic of China and the Philippines generally have longer waits in these categories.
Common family-based immigration Questions & Answers
2a. What if my relative/spouse entered the US illegally? When an alien enters without inspection (EWI), or with fraudulent documentation, they are ineligible to adjust under current immigration law, unless the petition was filed prior to April 30, 2001. In that case, and if certain conditions are met, they are eligible to adjust under INA section 245(i) (see FAQ: What is section 245(i) LINK). In certain cases, aliens may be “grandfathered” in under INA sec. 245(i) if they filed another type of case prior to April 30, 2001 and other certain conditions are met. This prohibition even applies to spouses of US citizens. Please contact ILG for a more case-specific analysis of this regulation.
2b. What if my spouse/relative overstayed his/her authorized period of stay I-94 card? For spouses of US citizens and other immediate relative filings, one may still adjust status in the US even if you have overstayed your visa. However, for the other family preference categories, an alien cannot adjust status if he/she has overstayed their visa. In fact, if one overstays a visa by 180 days or more, one is barred from adjusting or reentering for 3 years. Furthermore, if one overstays for 365 days or more, one is barred from adjusting or reentering for 10 years. (see FAQ: consequences of remaining in the US illegally) However, if the priority date was established prior to April 30, 2001, then an alien who has overstayed can adjust status under sec. 245(i), if certain conditions are met (see FAQ: What is sec. 245(i)).
2c. Do I make enough money to sponsor my relative? All sponsors must submit form I-864, Affidavit of Support, which assures the government that you are financially capable of bringing an immigrant relative to the United States. Most sponsors must earn 125% of the poverty income level – please see form I-864P for the current poverty level guidelines
All sponsors must submit the following documentation with their I-864.
Proof of current employment or self-employment
- Your individual Federal income tax returns for the most recent 3 tax years, or an explanation if fewer than 3 are submitted.
- Your W-2s or 1099 forms may also be required, see the I-864 instructions for details. If you are using the income of persons in your household or dependents to qualify as a sponsor, you must also submit a separate Form I-864A, Contract Between Sponsor and Household Member, for each person whose income you will use. If you are unable to show enough income on your own, one may use a joint sponsor for the Affidavit of Support.
3. How can an individual become a citizen of the US?
There are four ways to become a US citizen:
- By Naturalization Petition
- By birth in the US:
- By acquisition at birth:
- By naturalization of parents
4. What is Political Asylum?
You will be granted political asylum in the United States upon showing a well-founded fear of persecution in ones home country based on race, religion, nationality, political opinion or membership in a particular social group. You must request political asylum within one year of arriving in the United States, unless exceptional circumstances can be shown. If political asylum is granted, the applicant is allowed to remain in the United States and eventually obtain permanent residence.
5. What is the Diversity Visa Lottery (DV)?
This is a green card category to benefit people from countries that have low immigration to the United States. The program is intended to create diversity in groups of immigrants entering the United States. The DV program grants immigrant visas each year by random drawing (hence the term “lottery). You must have a high school education or its equivalent to apply, or within five years have two years of work experience in an occupation that requires at least two years of training or experience. The DV registration period is usually between early October and early November of each year and successful registrants are usually notified between April and July of each year.
6. What if I stay in the US illegally?
You are illegal or “unlawfully present” in the United States if: (1) you entered without inspection (EWI), or crossed the border illegally; (2) you exceeded the date on your I-94 arrival/departure card (overstays); and (3) you have been found to have violated the terms of their stay. If you are unlawfully present in the US for between 180 and 365 days, you are barred from reentering, changing or adjusting your immigration status for 3 years. If you are unlawfully present for more than one year you are barred for 10 years.
7. What is the difference between a non-immigrant visa and an immigrant visa?
A. Immigrant visas otherwise referred to as “Green cards” grant you the right to reside and work in the US permanently as lawful permanent residents. Green cards are issued to persons with immediate family members in the US or people with special job skills. Also persons such as refugees, DV Lottery winners, investors, and highly educated individuals receive green cards.
B. Nonimmigrant visas: Temporary visas known as non-immigrant visas for a temporary stay in the U.S. are known as nonimmigrant visas. You can obtain a nonimmigrant visa as a tourist (B-2), business visitors (B-1), students (F-1, M-1), workers (H-1B, L-1, etc.) or for other reasons. To receive the visa you must show that you intend to return to your home country in the prescribed period of time. A multiple visa allows you more than one entry into the US. A nonimmigrant visa is not guarantee that you will enter the U.S., as the immigration officer at the US port of entry makes the final determination.
8. What is an H-1B visa?
H-1B visa is for the professional foreign worker desiring to work in the US.
8a. Can I get an H-1B if I haven’t graduated from college? Work experience evaluations in lieu of baccalaureate degree: An applicant for H-1B visa can claim the equivalent of a college degree by proving 12 years of relevant, progressive work experience. The case of Shanti, Inc. v. Reno, 36 F. Supp. 1151, 1161-1166(D.Minn.1999) allowed the rule for 3 years of experience to be equivocated to one year of college.
8b. What is Dual Intent? Dual intent is when an H-1B alien is the beneficiary of an immigrant visa petition and can also apply for adjustment of status, or take other steps toward Lawful Permanent Resident status (LPR) without affecting his/her H-1B status. You may travel on your H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S during the time your application for LPR status is pending.
9. What is a PERM/Labor Certification?
In order to be granted permanent resident status through employment you must first show to U.S. Department of Labor that there are no qualified American workers available to take the specific job that has been offered. This is the labor certification. Applicants are subject to country-by-country quotas. The following are the preference categories for employment-based immigration:
First Preference: Priority workers, require no labor certification.
Second Preference: Members of the professions holding an advanced degree or exceptional ability; if their work falls under the “national interest” requirement, then the labor certification and job offer requirement can be waived;
Third Preference: Skilled workers, i.e. those capable of performing work requiring at least two years experience or training for which qualified workers are not available in the US; Professionals, i.e. those with baccalaureate degrees, but not advanced degrees; and Other workers, i.e. unskilled labor, not of a temporary or seasonal nature.
9a. How can one obtain a green card without the Labor Certification process?
Persons in the First Employment-based Preference Category (EB 1) do not need to go through the labor certification process. Likewise, persons of extraordinary ability do not need a job offer from a US employer.
EB-1 subcategories are:
Persons of Extraordinary Ability: in the sciences, arts, education, business or athletics, as demonstrated by national or international acclaim, which should be recognized through extensive documentation. You must demonstrate “sustained or international acclaim” and the recognition of your work by providing evidence of a one-time achievement such as a major international award such as Academy Award, Nobel Prize, or three or more other national or international awards, membership in association in your field of classification, published material, etc
Multinational Executives or Managers: You must be employed abroad in that capacity during at least one of the three years preceding the application for admission to the US as a priority worker. You must enter the US to be employed as an executive or manager for the same company or organization or a subsidiary or affiliate of the entity that employed you abroad.
Outstanding Professors and Researchers: You must be internationally recognized in an academic area and possess at least 3 years of academic research or teaching experience; have a tenure or tenure track position at an institute of higher education or a comparable research position in an institution that employs at least 3 persons full time in research and which institution has achieved documented accomplishments in the field.
10. What is a National Interest Waiver ( NIW )?
The employment-based Second Preference Category (EB-2) includes members of professions that hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. This is usually for aliens whose work is in “national interest”. Factors considered include whether the alien’s presence will improve the US economy; US working conditions; the educational system of the US; health care; housing; the environment; etc.