The following principles underpin US immigration law: family reunion, admitting immigrants with talents that are advantageous to the US economy, protecting refugees, and promoting diversity. This fact sheet explains how the legal immigration system in the United States is created and operates.
The Immigration and Nationality Act is the body of law that governs immigration policy in the United States (INA). The INA enables the US to issue up to 675,000 permanent immigrant visas per year in a variety of categories. In addition to the 675,000 visas, the INA allows U.S. citizens’ spouses, parents, and children under the age of 21 to enter the country at any time. Furthermore, the president is expected to meet with Congress each year and designate a yearly number of refugees to be admitted to the US through the US Refugee Admissions Program.
Every year, the US admits a large number of non-citizens on a temporary basis. Tourists, international students, and temporary workers are all awarded “non-immigrant” visas that allow them to stay in the country for years. While some employment-based visas have annual limits, other non-immigrant visas (such as tourist and student visas) have no such restrictions.
1. Immigration based on family ties
Immigration policy in the United States is guided by the principle of family reunification. U.S. citizens and LPRs can bring specific family members to the country under the family-based immigration system. Immigrants with a familial ties to the United States are admitted as immediate relatives of U.S. citizens or under the family preference system.
Every year, an unlimited number of visas are available for U.S. citizens’ direct relatives. In this category, prospective immigrants must meet regular eligibility standards, while petitioners must meet age and financial restrictions.
Congress devised a convoluted mechanism for calculating the available number of family preference visas for any given year in order to balance the overall number of immigrants arriving based on family links. Starting with 480,000 (the theoretical maximum number for all family-based immigrants), the number is calculated by subtracting the number of immediate relative visas issued the previous year and the number of aliens “paroled” into the United States the previous year. The amount of visas available for allocation under the family preference system is then multiplied by any unused employment preference immigrant numbers from the previous year. The number of family-based visas available through the preference system, however, must not be less than 226,000. In a given year, the number of immediate relatives often exceeds 250,000, triggering the 226,000 minimum requirement for preference visas. As a result, total family-based visas frequently reach 480,000.
2. Immigration for the Purpose of Work
The United States offers a variety of options for immigrants with relevant skills to come to the country permanently or temporarily.
Classifications for Temporary Visas
Employers can hire and petition for foreign nationals for specific jobs for a limited time under temporary employment-based visa classifications. Most temporary workers are obligated to work for the company that petitioned for them and have limited job mobility. There are about 20 different types of visas available for non-immigrant workers on a temporary basis. L-1 visas are for intracompany transfers; various P visas are for athletes, entertainers, and skilled performers; R-1 visas are for religious workers; various A visas are for diplomatic employees; O-1 visas are for workers of exceptional ability; and various H visas are for both highly skilled and less skilled workers. The visa classes differ in terms of eligibility conditions, duration, and whether or not workers are allowed to bring dependents with them, among other things. If their status expires or their employment is terminated, these workers must usually depart the United States. An employer may be able to sponsor a foreign national for permanent employment, depending on the type of job and the foreign person’s qualifications. To be sponsored, a foreign national does not need to be employed by the company. However, depending on the permanent immigration category sought and the foreign person’s present nonimmigrant status, the processes to become an LPR may be completed while the foreign national continues to live and work in the United States.
The total limit of permanent employment-based immigrants is capped at 140,000 per year. This figure comprises immigrants, eligible spouses, and minor unmarried children, implying that the actual number of employment-based immigrants per year is less than 140,000. The amount of visas available for allocation through the employment-based system is determined by adding any unused family preference immigrant numbers from the previous year to this cap. After then, the total number of visas available is divided into five preference categories. Before filing a petition with US Citizenship and Immigration Services, the sponsor must first test the US labor market under terms and conditions defined by the Department of Labor, and the Secretary of Labor must certify that the petitioner’s application meets specific standards (USCIS). The sponsor must first submit a petition with USCIS for some categories, or the foreign national may self-petition. The foreign national must next apply for an immigrant visa at a U.S. embassy or consulate abroad, or apply to alter status to LPR if they are currently in lawful status in the United States. The immigrant visa application cannot be filed until USCIS approves the immigrant petition for consular processing. The time it takes to file an adjustment of status application is determined by whether a visa number is regarded instantly available.
3. Per-Country Ceilings
In addition to the numerical limits imposed on the various immigration preference categories, the INA also establishes a limit on the number of immigrants allowed to enter the US from any one nation. Currently, no single group of permanent immigrants (including family and employment-based) from a single nation can account for more than 7% of total immigrants to the United States in a single fiscal year. This is not a quota to ensure that certain nationalities account for 7% of all immigrants, but rather a limit to prevent any immigrant group from dominating immigration flows to the US.
4. Asylees and Refugees
Refugees are allowed to the United States because they are unable to return to their home countries because to a “well-founded fear of persecution” based on their race, social group membership, political opinion, religion, or national origin. Refugees apply for admission from a country other than the United States, usually a “transition country” that is not their native country. The admission of refugees is based on a number of variables, including the level of risk they face, membership in a group of special concern to the US (as determined by the president and Congress each year), and whether or not they have family members in the US.