Agencies Involved with the Immigration Process
Entry into the United States by foreign nationals is strictly controlled. The agencies involved in determining eligibility for entry are the United States Department of State (State Department or DOS) and its U.S. Consulates located in foreign countries as well as the Department of Homeland Security (DHS) which includes: U.S. Citizenship and Immigration Service (USCIS), Customs and Border Protection (CBP) and Immigration Customs and Enforcement (ICE). The Department of Labor (DOL) also plays a role in certain processes.
The State Department controls entry into the U.S. by issuing visas or entry documents. USCIS controls the classification of status by adjudicating petitions requesting immigration benefits. CBP decides at the port of entry how long a person may remain in the U.S. ICE ensures compliance with student visas as well as ensuring that U.S. employers employ only authorized workers. The DOL works to protect the wages and jobs of U.S. workers by making prevailing wage determinations for H-1B workers and controlling the labor certification process.
- US Department of State: http://travel.state.gov/content/visas/en.html
- US Citizenship & Immigration Services: http://www.uscis.gov/
- US Customs & Border Protection: http://www.cbp.gov/
- US Immigration Customs & Enforcement: https://www.ice.gov/
- US Department of Labor, Office of Foreign Labor Certification: http://www.foreignlaborcert.doleta.gov/
Guiding Principles of Immigration
Immigrants and Nonimmigrants
The U.S. immigration law divides all individuals seeking to enter the U.S. generally into two categories: immigrants and nonimmigrants. Immigrants are individuals who intend to remain permanently in the United States. Nonimmigrants are individuals coming for only a temporary time. Those allowed to enter the United States as immigrants are permitted to have the intent to remain permanently and to abandon all foreign residence. Almost all individuals admitted as nonimmigrants must demonstrate that they have a residence abroad that they have no intention of abandoning.
Presumption of Immigrant Intent
All individuals coming to the United States are presumed by the USCIS and Department of State to have the intent to remain permanently in the United States. Obviously, this is inconsistent with the intent allowed for a nonimmigrant visa. Accordingly, individuals coming temporarily to the United States in a nonimmigrant visa category must overcome the presumption that they intend to remain permanently. If they cannot present evidence to overcome this presumption, their entry into the United States may be denied.
Basis for Immigration
Generally, individuals immigrate to the U.S. on one of two bases: employment or family. Further information on these bases is provided in the sections on Nonimmigrant and Immigrant visas.
Basic Terminology of Immigration
A foreign national who intends to reside permanently in the United States
A foreign national who intends to remain only temporarily in the U.S. and to return to a residence maintained abroad.
A card (Form I-551) issued by the USCIS that evidences an individual’s permanent residence in the United States.
A stamp placed in a passport by a U.S. Consulate that allows the visa holder to travel to the U.S. and request admission to the U.S. at a port of entry (e.g., airport or border crossing).
Form I-94 Arrival/Departure Card or Record
A document issued by the USCBP at a port of entry documenting an individual’s entry to the U.S. in a particular status (sometimes determined by a petition filed previously with the USCIS) and stating the date by which the individual must depart the United States. The paper cards customarily issued by CBP are being replaced with an online version that can be found at the CBP website at https://i94.cbp.dhs.gov/I94/#/home. At present, people entering the U.S. by land are generally issued a paper I-94 (white or green card), while those entering the US by sea or air are issued an electronic I-94, which can be accessed via the CBP’s I-94 home website, noted above. Sometimes the USCIS will issue a new I-94 to a beneficiary who has applied in the U.S. for a change of status or an extension of stay. Those new I-94 records are found at the bottom of the I-797 approval notice issued by the USCIS when the petition is approved.
When foreign nationals enter the U.S., it is vital that their I-94 record of entry be verified both as to the particular status that was supposed to be given (e.g., H-1B, B-1, J-2, etc.) and as to the permitted length of stay. Errors on either issue can cause potentially catastrophic problems.
Employment Authorization Document
Often called an EAD, this is a card (similar in appearance to a driver’s license) that authorizes an individual to work for any employer in the U.S.