U.S. Immigration law is governed by the Immigration and Nationality Act, case law, and various government regulations. U.S. immigration law is complex and weaves together many principles, including international law, American public policy, and state criminal statutes.
The foundation of U.S. immigration law is routed in American public policy and is driven by family unity, the expansion of the American workforce in skilled and professional jobs, the protection of refugees and asylees, and the fostering of diversity.
The number of family and employment-based immigrants admitted each year, as lawful permanent residents, is governed by the Immigration and Nationality Act. The number of refugees admitted each year is determined by the President, in consultation with Congress
The Immigration and Nationality Act (INA) sets form certain worldwide annual limits:
- Family-Based Immigration: 480, 000 total foreign nationals may be admitted each year.
- Immediate Relatives: An unlimited number of immediate relatives can be admitted for lawful permanent residence every year (see below for definition of ‘immediate relative).
- Preference Based Petitions: No less than 226,000 visas will be issued to people under the family-based preference categories every year (see below for who is included in ‘preference category petitions.’)
- Employment-Based Immigration: 140,000 foreign nationals may be admitted each year.
- Refugees & Asylees:
- Refugees: 30,000 were admitted for fiscal year 2019; fiscal year 2020 is capped at 18,000.
- Asylees: An unlimited number of applicants may be approved for asylum each year.
- Diversity Visa Recipients: 55,000 foreign nationals may be admitted each year under the Diversity Visa Program (less up to 5,000 NACARA applicants).
This fact sheet provides you with an overview of the most common immigration programs, how they were designed, and the limitations of each. The fact sheet also covers humanitarian-based immigration programs, as well as U.S. citizenship.
I. Family-Based Immigration
Family-based immigration allows United States citizens and Lawful Permanent Residents to petition for certain family members to come to the United States. The family-based program is broken down into two general categories, immediate relatives and preference category petitions. The INA provides for 480,000 family-based immigrant visas each year.
There is no annual cap on the number of Immediate Relative Petitions that may be granted each year. Immediate Relatives include the following familial relationships:
- Spouses of United States citizens;
- Unmarried children (under the age of 21) of United States Citizens;
- Parents of United States citizens (where the citizen is at least 21 years old).
The formula for how many preference category visas may be issued each year is complex and is as follows: 480,000 – any visas issued to Immediate Relatives + any unused employment-based visas. No less than 226,000 visas may be issued each year to the preference categories, and long-term parolees are counted against the preference cap. Because of this complicated formula, the number of family-based immigrant visas issued often exceeds 480,000.
The Preference Categories include the following familial relationships:
- First (F1): Unmarried Sons and Daughters (over the age of 21) of U.S. Citizens;
- (F2A): Spouses and Children (under 21 years of age) of Permanent Residents;
- (F2B): Unmarried Sons and Daughters (21 years of age and older) of Permanent Residents;
- Third (F3): Married Sons and Daughters of U.S. Citizens;
- Fourth (F4): Brothers and Sisters of U.S. Citizens (where the citizen is over the age of 21).
|U.S. Family-Based Immigration-Quick Reference Chart|
|Preference Category||Petitioning Family Member||Relationship||Annual Numerical Limits***|
|Immediate Relatives||U.S. Citizens||· Spouses
· Parents (US Citizen is over 21)
|F1||U.S. Citizens||· Unmarried Sons & Daughters (Over 21)||23,4000|
|F2A||Lawful Permanent Residents||· Spouses
|F2B||Lawful Permanent Residents||· Unmarried Sons& Daughters (Over 21) ****||26,266**|
|F3||U.S. Citizens||· Married Sons and Daughters||23,4000|
|F4||U.S. Citizens||· Brothers and Sisters of U.S. Citizens (citizen must be over 21)||65,000|
|*Definition of Child: A child is an unmarried person, under the age of 21 who:
· Was born in wedlock;
· Is a stepchild, so long as the stepchild/parent relationship was created before the child turned 18;
· Was born out of wedlock, but in the case of a father a bonafide relationship with the child must exist; or
· Was adopted while under the age of 16 and who has been in the legal custody of the adoptive parent for a minimum of two years. In the case of adoption, where the family has previously adopted a sibling, the ‘child’ must be under the age of 18 at the time of adoption.
|**Category F2 is allocated 114,200 total visas. F2A is allocated 77% of those visas, and F2B is allocated 23% of those visas.
|***Trickle-Down Effect: In addition to the allocated visa numbers the second category can use any unused visas from the first category; the third category can use any unused visas from the first & second categories; the fourth category can use any unused visas from the first-third categories; and the first category can use any unused visas from the fourth category.
|****Married Sons & Daughters of Lawful Permanent Residents: It is important to note that there is no preference category for married sons & daughters of lawful permanent residents (LPR). If a petition is filed on behalf of an unmarried son or daughter of an LPR, and that person subsequently marries, their petition will automatically cancel.|
Family-based immigration is essentially a three-step process. In the first step, the petitioning family member files an I-130 on behalf of their qualifying family member. If the petition is approved, then the family member can move on to the second and third steps in the process.
When the family member can move along in the process is dictated by whether the relationship is an Immediate Relative or Preference Category relationship.
If the family member is an immediate relative, they can move to step-two immediately; if the preference categories govern the relationship, then you’ll have to check the Visa Bulletin to see when your ‘priority date’ will be current.
Once your date is current, you can move along with steps two and three. Step two is filing the green card petition; the intending immigrant files this petition on behalf of themselves.
Step three is the filing of an affidavit of support; the United States citizen or lawful permanent resident files this on behalf of the family member who is coming to the United States.
In certain adjustment of status cases, all three steps may occur concurrently.
II. Employment-Based Immigration
Employment-based immigration, as its name suggests, provides a way for foreign nationals to come to the United States for work, depending on their specific skill set.
Typically, an employer will petition for a foreign national to come to the United States to work for them on a temporary or permanent basis. In some situations, a foreign national may petition for themselves.
Non-Immigrant Visas (Temporary Basis)
Temporary employees can come on one of approximately twenty non-immigration visas. The United States Citizenship and Immigration Service (USCIS) maintains an exhaustive list of non-immigrant visas types, but they include E visas for treaty traders and investors, H-1Bs for certain specialty occupations, H-2As for temporary or seasonal workers, Ls for intracompany transferees, Os for persons with extraordinary abilities, Ps for athletes and culturally unique performers, Rs for religious workers, and TNs for Mexican and Canadian professionals. Some of the non-immigrant visa categories have annual limits; however, some do not.
Immigrant Visas (Lawful Permanent Residency/Green Card):
In permanent employment-based cases, if the foreign national’s petition is approved, they will receive a green card just like in the family-based context. Section 201(d)(1) of the Immigration and Nationality Act provides for 140,000 employment-based immigrant visas to be issued each year. Those 140,000 visas are divided up into five categories:
- First (EB1): Priority Workers;
- Second (EB2): Members of the Professions Holding Advanced Degrees, or People with Exceptional Abilities;
- Third (EB3): Skilled Workers, Professionals, and Other Workers;
- Fourth (EB4): Certain Special Immigrants;
- Fifth (EB5): Employment Creation (Investors).
|U.S. Employment-Based Immigration -Quick Reference Chart|
|Preference Category||Description of Category/Qualifications||Sponsor||Annual Numerical Limits *|
|EB1||· Persons of Extraordinary Ability in the arts, sciences, education, business, or athletics
· Outstanding Professors & Researchers
· Multinational Executives & Managers
|EB2||· Members of the Professions Holding Advanced Degrees
· Persons of Exceptional Ability in the arts, sciences, or business
· Employer OR Self-Petition with NIW
|EB3||· Skilled Workers (2 years of job experience or training)
· Professionals (baccalaureate degree)
|· Other Workers (unskilled workers, requiring less than two years of training or experience; employment must not be temporary or seasonal)||· Employer||No more than 10,000 (of the above 40,040)|
|EB4||· Special Immigrants (including religious workers, Special Immigrant Juveniles, Broadcasters, Iraqi & Afghan translators, and certain NATO and US government employees).||· Employer OR Self-Petition||9,940|
|EB5||· Investors||· Self-Petition||9,940**|
|*Trickle-Down Effect: In addition to the allocated visa numbers, the second category can use any unused visas from the first category; the third category can use any unused visas from the first & second categories, and the first category can use any unused visas from the fourth and fifth categories.
|**Investors: 3,000 visas are reserved each year for investors in specific rural or high-unemployment areas. 3,000 visas are reserved each year for investors in regional centers.|
III. Per Country Limits
In addition to the annual numerical limits placed on family-based and employment-based preference petitions, there are further per-country limits to the number of immigrant visas that may be issued to nationals of one country in any given year.
These per-country limits are in place to prevent an influx of foreign nationals from one country, to the detriment of citizens from other countries. Presently, foreign nationals who are permanently immigrating to the United States may not exceed 7% of total immigration, from any one country in one year; permanent immigration may not exceed 2% of total immigration for ‘dependent areas,’ or colonies. These limits apply to both family-based and employment-based preference petitions.
IV. Refugees & Asylum
There are multiple humanitarian-based programs for admitting foreign nationals to the United States, who fear for their safety abroad. One such program, in the United States, is Asylum.
The definition of refugee, found in INA 101(a)(42) is any person who is outside of their country of nationality, and who is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
According to the Department of Homeland Security, an asylee is “a person who meets the definition of refugee and is already present in the United States or is seeking admission at a port of entry.”
From within the United States, foreign nationals may apply for asylum affirmatively with the Asylum Office, or defensively in front of an immigration judge.
Each year the president, in consultation with Congress, sets numerical limits on the number of refugee admissions. For fiscal year (FY) 2019, which ran from October 1, 2018-September 30, 2019, the ceiling was 30,000. Additionally, each region is allocated a certain number of visas, which were as follows for FY 2019:
|U.S. Regional Allocation of Refugee Admissions FY 2019|
|Country||Annual Numerical Limit|
|Europe & Central Asia||3,000|
|Near East/South Asia||9,000|
For the fiscal year 2020, the ceiling is 18,000. This is the lowest ceiling since 1980.
There is no limit on the number of asylees, present in the United States, who may be granted asylum each year.
Asylees and refugees may apply for their lawful permanent residency after having been present in the United States for at least one year after their admission as a refugee or having received asylum.
V. Diversity Visa Recipients
The Diversity Immigrant Visa Program, also known as the Diversity Lottery, was established to encourage immigration from countries with historically low rates of immigration to the United States. The INA §201(e) provides for 55,000 visas for ‘diversity immigrants’ every fiscal year. This number may be reduced by up to 5,000 visas for grants of cancellation of removal under NACARA. No country may receive more than 7% of the total number of diversity visas distributed in one fiscal year.
Regions: Countries are divided into two categories-high admission regions and low admission regions. No visas are issued to citizens of ‘high admission regions.’ A high admission state is one whose nationals have received more than 1/6 of all visas issued in the past five years.
Eligible countries are divided into six regions: (1) Africa, (2) Asia, (3) Europe, (4) North America (not including Mexico), (5) Oceana, and (6) South America.
Applicant Eligibility: To be eligible for a diversity visa, an applicant must:
- Be from a ‘low admission’ country; and
- Have a high school education or its equivalent; OR
- Have at least two years of work experience (in the past five years) in a field requiring at least two years of training or experience.
For Fiscal Year 2017, the Diversity Visas were distributed in the following manner:
|Region of Birth||Number of Visas Issued||Percentage of Total|
VI. Forms of Humanitarian Relief
If an individual does not qualify for a non-immigrant visa or lawful permanent residency, there are humanitarian programs that may permit that individual to come to the United States or remain in the United States for a temporary period. A few of the programs are Temporary Protected Status, Deferred Action for Childhood Arrivals, and Parole.
Temporary Protected Status (TPS)
TPS is a status conferred upon certain nationals of countries in which there is an ongoing conflict, an environmental disaster, or some other extraordinary condition. TPS is not a road to lawful permanent residency. It is a temporary status protecting nationals of certain countries until they can safely return home. The Department of Homeland Security designates and un-designates countries eligible for TPS. Currently, ten countries are designated for TPS.
To be eligible for TPS, you must be a national from a designated country, file during the appropriate registration period, and have been residing continuously in the United States since a specified time.
You are ineligible for TPS if you have been convicted of two or more misdemeanors or a felony, or are inadmissible under specific grounds.
If approved for TPS, an individual is not removable from the United States, can apply for work authorization, and can also apply for permission to travel abroad.
Deferred Action for Childhood Arrivals (DACA)
DACA is a program created by executive order under the Obama administration. DACA is no longer available for new applications; however, those with DACA may renew their DACA. In September 2017, the Trump administration attempted to end the DACA program which resulted in several lawsuits. The Supreme Court of the United States will hear oral arguments relating to termination of the DACA program on November 12, 2019.
To renew DACA, an individual must:
- Have or previously had DACA;
- Have not departed the United States since August 15, 2012, without advance parole;
- Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors.
Parole is a mechanism by which the Department of Homeland Security can let foreign nationals into the United States, without formally ‘admitting’ them. Its particularly helpful for individuals who are otherwise inadmissible or who have no other way of coming to or remaining in the United Stets. Parole is typically temporary and is granted for urgent or compelling reasons. Two of the more common types of parole are Humanitarian Parole and Parole in Place.
VII. US. Citizenship
Generally speaking, there are four ways through which an individual can become a U.S. Citizen: (1) birth, (2) naturalization, (3) acquisition, and (4) derivation.
- Birth: The 14th Amendment states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In plain English, this means that if you are born in the U.S., you are an American citizen, unless you were born to a foreign diplomat.
- Naturalization: Naturalization is the means by which lawful permanent residents (LPR) become United States citizens. Typically, LPRs can apply for naturalization after having been a continuous resident of the U.S. for five years, or three years in the case of an LPR married to a United States Citizen. Besides continuous residency, an applicant must also have good moral character, paid taxes, and not have been convicted of certain crimes.
- Acquisition: Acquisition is the mechanism through which certain children born abroad, automatically acquire citizenship at birth by virtue of having parent(s) who are United States citizens.
- Derivation: Derivation is the mechanism through which certain lawful permanent resident children automatically obtain citizenship when their lawfully permanent resident parents obtain citizenship.