Explainer: A Multitude of Paths for Legal Immigration to the United States

Meir Rinde | September 21, 2016 | Explainer
Some roads are like the interstate, fast and relatively direct, while others are far more circuitous and can take years to get to the destination

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Presidential candidate Donald Trump’s hard line on immigration policy has brought the issue to the fore this campaign season. He’s called for building a “beautiful” wall at the Mexican border, mass-deporting undocumented immigrants, and intensifying the vetting of would-be immigrants.

Trump himself has actually been surrounded by immigrants all his life, including his grandfather, mother, and two of his three wives. Critics note that his current wife, Melania Trump, who is from Slovenia, may have been working illegally as a model when she first came to U.S.

[img-narrow:/assets/16/0518/0120]While she has said she had an H-1B work visa, her description of having to return to Europe periodically to renew her visa suggests she actually had a temporary tourist or business visa, which do not permit employment. Such visa violations by foreign models were reportedly common in the 1990s. Donald Trump has also said he would crack down on use of the H-1B, calling it a “cheap labor program” — though he reportedly relies heavily on H-2 guest work visas to staff his private club and golf course in Florida.

Whatever Trump’s position, the United States is and always has been a country of immigrants. Plenty of attention has been paid to the issue of undocumented immigration — but what about legal immigration? More immigrants enter the country legally than illegally, so how do they get that status?

Foreigners basically have three paths to permanent legal status: family ties, employment, and a lottery for residents of certain countries. A number of other immigration programs with special requirements are also available, including one for refugees.

A little over 1 million people gained permanent resident status in the United States in 2014. About 419,000 were from Asia, 400,000 from the Americas, 95,000 from Africa, and 88,000 from Europe.

The process typically begins with a petition by a family member, employer, or the immigrant, depending on the type of visa, and then an application for permanent residence, known as a “green card.” People who are already in the U.S. on a temporary visa may file for an “adjustment of status” to get a green card. After five years of residency, green card-holders can apply for citizenship.

The system is very complex, with different paths and requirements for different categories of immigrants, and waits that can last years. Assistance from a lawyer is often necessary.

Quotas: Federal law limits the number of permanent immigrants to 675,000 a year, but this does not include close family members of U.S. citizens, refugees, and certain others. No single country can exceed 7 percent of total immigrants per year, or about 25,620 people.

In November 2015 there were 4.6 million people on visa waiting lists, most of them for family-based visas, according to the State Department. The top countries were Mexico at 1.3 million; the Philippines, 418,000; India, 344,000; Vietnam, 282,000; China, 260,000; Dominican Republic, 207,000; Bangladesh, 183,000: Pakistan, 131,000; Haiti, 120,000; and Cuba, 115,000.

Family-based: If a would-be immigrant already has a close relative living legally in the U.S., the relative files a petition with U.S. Citizen and Immigration Services (USCIS) to demonstrate the relationship. They can file for a spouse or fiancé (including same-sex partner), child, intended adoptee, parent, or sibling. Once the petition is verified, the immigrant applies for a visa and must be interviewed by a consular or immigration official.

For relatives of U.S. citizens, visas are available immediately with no limit for spouses, unmarried children under 21, parents, and adopted orphans. Visas are limited by quotas for other children and siblings, who as a result may wait years before they can formally apply. In 2014 the limits were 23,400 visas for unmarried adult children, 23,400 for married adult children, and 65,000 for siblings, according to the American Immigration Council.

Relatives of green-card holders also face quotas and waits that can last from a year or two for spouses to a decade or longer for siblings, depending on the country of origin.

Filing a family petition costs $420, or $720 for an international adoption. The application itself costs $325. The USCIS also charges a $165 immigrant fee to anyone immigrating as a permanent resident, though certain people such as qualifying orphans are exempted. Fee waivers are available for people with financial hardships.

In 2014, 229,000 people got green cards through family-based applications, according to Department of Homeland Security statistics.

Employment-based: A U.S. company may apply for an employment-based visa for a prospective worker or in some cases the person may apply on their own. Basic employment-based visas require the applicant to have a job offer. The requirement is waived for certain people with documented “extraordinary” abilities, including scientists and athletes, and those who can show their work will be in the national interest, such as doctors in underserved areas and medical researchers.

Fees vary for employment-based visas. An alien worker petition costs $580, while another type for entrepreneurs is $1,500. Visa applications cost $345 and sponsorship, biometrics and other fees may also be required, as well as the USCIS immigrant fee.

In 2014, 152,000 employment-based applicants got permanent resident status. More than 101,000 people were on waiting lists as of 2015.

Investors: The EB-5 immigrant investor program accepts 10,000 immigrants a year. They must invest at least $500,000 in a U.S. business and prove they created or preserved at least 10 full-time jobs. The projects funded by such investors include the redevelopment of the George Washington Bridge Bus Terminal and construction of the Hudson Yards development and Nets arena in New York.

Diversity lottery: The lottery annually selects 50,000 people born in countries with historically low rates of immigration to the United States. Those selected must meet a set of requirements, such as having a high school education or work experience, and no criminal record. About 150 countries are on the list for 2017. They fall off the list when the number of immigrants from the country exceeds the statutory threshold. Entering the lottery is free, but winners must pay a non-refundable $330 before their consular interviews.

Other immigrant visas: Visas are also available to people who fit a number of special categories, such as children of U.S. citizens, widows and widowers of citizens, religious workers, Panama Canal employees, non-citizen military members, and Afghan and Iraqi nationals who worked for the U.S. military or government. The application fee for these is $205.

Refugees and asylum seekers: People who face persecution for political, religious, or other reasons can receive referrals from the U.S. Refugee Admissions Program and apply for permanent residence. Spouses and children are included, and sometimes other relatives. Refugees who are already in the U.S. may apply for asylum. Humanitarian protections are also available to people in other categories, such as human trafficking victims and battered spouses.

Green cards were granted to 96,000 refugees and 38,000 asylum seekers in 2014. According to the American Immigration Council, the refugee maximum was limited to 85,000 this year, but there is no limit on number of people granted asylum.

Adjustment of status: People who are in the U.S. legally but without green cards can apply for “adjustment of status” to permanent legal residence. More than half of the 535,000 adjustments granted in 2014 were for spouses, children, and parents of U.S. citizens. Another large portion were for employment-based applicants and the rest for lower-preference family applicants, like relatives of green-card holders. The fee is $985 plus $85 for biometrics for most applicants, or $635 for certain children. Refugees pay no fee.

Non-immigrant visas: The United States offers many types of visas that allow visitors to live and, for some, to work legally in the U.S. on a temporary basis. These include students, entertainers, seasonal workers, specialized-knowledge workers, and various others. Some of these visas last a fixed length of time, depending on the person’s nationality. A special version of this status is available to Canadians and Mexicans who get jobs in the United States.

One variety is the H-1B visa, which is distributed by lottery to people in “specialty occupations” who have college degrees and sponsoring employers. If they lose their job they must find another sponsoring employer, change their immigration status or leave the country. Unlike some other temporary-visa holders, people with H-1Bs may apply for adjustment of status. Through the lottery, USCIS annually issues 65,000 general H-1B visas and 20,000 to people with advanced degrees. Applicants have been overwhelmingly Chinese in recent years.

Illegal immigration: For a person who overstays a visa, marriage to a citizen provides a green card relatively quickly. Marriage to a green-card holder puts people on a waiting list. However, marriage generally will not work for a person who entered the country illegally; they can return to their home country and try to apply through a U.S. consulate there, though they will face penalty delays.

There are a few other ways an undocumented person can gain legal status, such as applying for political asylum or temporary protected status. Military service allows direct application for citizenship. When a longtime resident is arrested by immigration authorities, if he or she can prove that his removal from the country would result in extreme hardship to a relative who is a legal resident, he can apply for cancellation of the removal and permanent residents. The government provided 5,200 cancellations in 2014.