Immigration Law: Employment
All countries have laws regulating who may enter the country, and under what conditions, and the U.S. is no different. The immigration rules are based on federal law, and the agency in charge of overseeing immigration is the United States Citizenship and Immigration Service (USCIS).
Businesses that want to hire employees with unique skills to come to the U.S. to work or want to hire employees who are already here but whose immigration status is questionable, have certain legal obligations. The obligations fall into two categories.
The first category is the verification process. Under federal law, all employers are required to ask employees to fill out Form I-9 upon being hired, which verifies that an employee is authorized to work in the U.S. Employers who fail to follow this are law are warned, then fine, and, in extreme cases, prosecuted criminally.
The second category is administration of the verification process. Employers are forbidden under law from discriminating against employees or groups of employees based on their color, race, or national origin. Discrimination can include forcing employees of a certain race to undergo stricter verification procedures than those employees who are not of that race.
The immigration laws are complex, and the USCIS has increased its vigilance ever since the events of 9/11. In addition, choosing the correct path from the start to gain entry into the U.S. is critical because application amendments are often either denied or viewed suspiciously. Thus, if you are interested in gaining entry into the U.S. for yourself or someone you know, it's particularly important to seek the counsel of an attorney experienced in immigration matters. The following is a discussion of the general rules applicable to U.S. immigration.
Status. A person's rights in the U.S. will depend upon his or her status. U.S. citizens obviously have the fullest rights. A person is a U.S. citizen if they are born here or they are born abroad to a U.S. citizen. Except for children born to foreign diplomats working in the U.S., any child born in the U.S. is a citizen, even those born to parents who entered the country illegally. In addition, a person not born here can become a U.S. citizen by becoming naturalized, which means living in the country for a period of years and passing an examination.
Below the status of a citizen are aliens, immigrants, nonimmigrants, and residents. An alien is a citizen from a country other than the U.S. An immigrant is someone who comes to the U.S. to live here permanently. A nonimmigrant is someone who comes to live here for a period of time, but not permanently, such as a scholar who comes to teach and then return home. A resident is someone who has permission to live permanently in the U.S. but who isn't a citizen.
Visas. Permission to enter the U.S. is called a visa. There are two types of visas, travel visas and work visas. Travel visas are much easier to obtain. In the typical scenario, a resident of another country would ask for a visa to travel to the U.S. from the U.S. consulate in their home country. The U.S., however, has various treaties with other countries that have simplified travel both for U.S. citizens traveling to those countries and for those citizens traveling to the U.S. For example, Canadian citizens don't need to obtain a travel visa, although they do need to obtain a work visa. Citizens of western Europe and Japan can enter the U.S. for up to 90 days without a visa. They need only show a return ticket to qualify.
Quotas. Entering the U.S. is not merely a matter of filling out the proper paperwork. The U.S. limits the number of people who can enter the country at a given time from a given country. Different countries have different quotas. Thus, an otherwise perfectly valid request for a visa will be delayed or denied if the quota for that country has been exceeded. In some cases, visa applications have languished for years while the applicant waits for an opportunity to come here.
Immigrants. The best chances of getting an immigrant visa are to have family connections in the U.S., to have a job in the U.S., or to be an asylum seeker who would be persecuted if you returned to your country. If the person seeking an immigrant visa is a spouse or parent of a U.S. citizen, the person will generally be able to get a visa. After that, there is a list of preferences. The first preference is for unmarried children of U.S. citizens. The second preference is for spouses and unmarried children of lawful permanent residents. The third preference is for married children of U.S. citizens. The fourth preference is for siblings of adult U.S. citizens. Each preference has an allotment of visas. The higher the preference is, the shorter the wait.
There is also a list of preferences for those seeking to enter the U.S. to be employed. The first preference is for those with extraordinary ability, such as teachers and multinational executives. The second preference is for those with exceptional ability in science, art, or business and professionals with advanced degrees. The third preference is for skilled workers, professionals, and others who work in an industry where there is a labor shortage. The fourth preference is for special workers, such as religious workers. The fifth preference is for investors who will create jobs in the U.S.
The third category applies to those immigrants whose situations don't fall into one of the two groups mentioned above. One type of immigrant who falls into this category is asylum seekers. The criteria for gaining asylum on persecution grounds change as the political winds change. Occasionally, Congress will pass special rules that allow in immigrants who are fleeing from a particularly troubled area.
Another group who fit into this third category are immigrants from what are called under-represented or low-admission countries. Where Congress decides that certain countries have had few immigrants, it will ease the immigration restrictions for immigrants from those countries. They generally need the equivalent of a high school education or two years of training in an occupation.
Nonimmigrant visas. Nonimmigrant visas are easier to obtain than immigrant visas because the holders intend to return to their home country. Because they are easier to obtain, immigrants have sometimes sought the nonimmigrant visa, but with no intention of ever returning. The immigration authorities are aware of this ploy and, as a result, often examine these applications more closely than they used to.
Generally, a nonimmigrant visa applicant needs to fall into one of 18 categories, designated by the letters A-R. The categories are based on what the applicant will do while in the U.S. Some examples are for those who come to this country to undertake specific business work (B Visa); for those who come to be full-time students (F Visa); for intracompany employee transfers in international companies (L Visa); and for artists, athletes, and scientists and those who accompany them (O Visa).
Green cards. Aliens with valid visas can still be denied entry into the U.S. under certain circumstances, such as where they have a criminal history, they pose a terrorist threat, or they have a communicable disease. Usually, however, entry into the U.S. with a valid visa is a formality, although that has changes somewhat since 9/11.
The next step for someone in the U.S. who wants to remain in the U.S. is to apply for what is called a green card, which refers to permission to live in the U.S. permanently. Once the immigrant has a green card, he or she can apply for citizenship after living in the U.S. for five years (three years if married to a U.S. citizen). To guard against fake marriages for the purposes of gaining a green card, anyone who has been married for less than two years is given conditional permanent resident status. After two more years, the couple can ask the USCIS to remove the conditional status.
Deportation. Aliens who enter the U.S. illegally and are caught can be deported. Those who enter legally can also be deported, if they are convicted for a crime. Those who the U.S. seeks to deport are entitled to a deportation hearing before being deported. Once deported, a person cannot reenter the U.S. for five years.