Wednesday, April 15, 2009

Crossing the Legal Way: An Overview of the Legal Immigration System Today

So now that we've covered how immigration laws and policies have changed throughout history--and made it clear that immigrating the "legal way" before 1965 is a fuzzy concept at best--it's time to talk about how people can immigrate "the legal way" today.

At my job, I hear from many people who don't want to see a path to legal status for undocumented workers currently living in the United States. It's not because they don't like immigrants or are xenophobic and racist per se; rather, they don't believe we should be providing "amnesty" to "criminals."

These same people often believe that immigrants choose to migrate without papers (and to stay undocumented) so as to avoid taxes and social security costs, or because they are too lazy to go stand in line and apply the legal way. From this perspective, it makes perfect sense that they believe honest, hardworking taxpayers should not have to pay for immigrants' education, emergency healthcare, and other services that they believe immigrant use (such concerns as these will be addressed in the April 29 post).

But, as I'll discuss in this post, there is virtually no legal way for unskilled and low-wage workers (who make up the majority of the undocumented population) to enter the United States.

Now immigration law is ridiculously complex. So while I've tried to simplify it to the best of my ability, I've also included this cartoon developed by the Reason Foundation to help you follow along (you can make the image larger by clicking on it), as well as anchor anchor the various sections of the post to make it easier to navigate.

To begin a discussion of how to immigrate legally, we all need to be using the same terms. In today's immigration system, there are three dominant categories of status: legal nonimmigrant, lawful permanent resident (LPR) or green card holder, or US citizen. If someone does not fall into one of these three categories, they are probably undocumented (one exception being refugees and asylees, who--since they are eligible for permanent status after one year of living in the US--could be classified as an interim category of LPR status).

Legal Nonimmigrant: A legal nonimmigrant is a foreigner who is granted a visa on a temporary basis, such as a tourist, business traveler, student, or temporary worker. Depending on their specific visa category, they may or may not be authorized to work while in the US, but such visas are almost always accompanied by an expiration date. These visas do not lead to legal status.

It is quite difficult to receive nonimmigrant visas because legal nonimmigrants are seen as "high risk." For this reason, people who have certain diseases, have committed certain crimes, may become a "public charge," do not have enough money, or who are seen as likely to overstay their visa will be barred from receiving nonimmigrant visas. This means it is nearly impossible for unskilled and low income people to enter this way.

Lawful permanent resident: A lawful permanent resident (LPR) is a non-citizen who has been given permission to make their permanent home in the United States. Such people are considered "green card" holders. LPRs have the right to live and work in the US and never have to leave. They also have the option to apply for US citizenship after 5 years of lawfully holding a green card (if they meet all all other requirements for naturalization).

While lawful permanent resident status is quite difficult to attain (we will discuss this momentarily), once immigrants have LPR status they gain a number of rights, such as the ability to petition for certain family members to join them the United States and to travel freely across US borders.

US Citizen: US citizens are people who are born in the United States, have naturalized as US citizens (by living 5 years as an LPR, passing a civics test, learning English, and demonstrating good moral character), or are the children (under the age of 18) of parents who have naturalized.

US citizens have a great number of rights that even LPRs do not have, such as the right to vote, to carry a US passport, to work for the federal government and run for public office, and petition for additional family members to come to the United States.

Undocumented: Anyone who does not fit into the above categories is likely undocumented. People with undocumented status do not have the legal right to work in the United Stages or the freedom to travel back and forth across the border. We will discuss more about who the undocumented population is in the next post on Wednesday, April 22.
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Given that legal nonimmigrant visa recipients are heavily screened to ensure that they only temporarily remain in the United States and that citizens have the automatic right to live and work in the United States, the category we really want to focus on is lawful permanent residency.

How does someone get lawful permanent residency, i.e. how does someone get a green card?

In general, there are four ways: family petitions, employment, a diversity lottery, and being officially designated as a persecuted person or population.
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Family-based immigration: US citizens and lawful permanent residents can petition to bring certain family members to the United States and receive permanent status. This is the most common way to permanently immigrate to the United States.

The law provides for a minimum of 226,000 family-petitioned permanent status visas to be granted each year; however, the availability of these visas is determined by a complicated family-preference system. And although a family member may be eligible for a family-based visa, due to extensive backlogs, it takes somewhere between 6 and 22 years to actually be granted the visa if the family member falls into the limited family visa category.

Family-based immigration visas fall into two overall categories: unlimited family visas and limited family visas. The latter category is then broken down into four preference tiers.

Unlimited family visas- Unlimited family visas are granted to the immediate relatives of US citizens. For US citizens, immediate relatives are defined as:
  • A spouse
  • An unmarried child under the age of 21
  • An orphan adopted abroad
  • A foreign-born orphan adopted in the United States
  • The parents of a US citizen, provided that the US citizen is at least 21 years old
Limited family visas- Limited family visas are granted to more specific, and more distant, relatives of US citizens, as well as to specific categories of relatives of lawful permanent relatives, based on a four-tier preference system. There are numerical limitations placed on these preference categories each fiscal year, which are determined in part by country of origin.
  1. First preference- Unmarried sons and daughters of US citizens and their children (if any). Limited to 23,400 visas per year. The wait time for these visas is currently 6-14 years.
  2. Second preference- Spouses, minor children, and unmarried sons or daughters of lawful permanent residents. Limited to 114,200 visas per year. Seventy percent of these visas must go to the spouses or minor children; the wait time for these visas is 5-7 years. The remainder is allocated to unmarried sons or daughters; the wait time for these visas is 9-14 years.
  3. Third preference- Married sons and daughters of US citizens, and their spouses and children. Limited to 23, 400 visas per year. The wait time for these visas is 7-15 years.
  4. Fourth preference- Brothers and sisters of US citizens, and their spouses and children, provided that the US citizen is at least 21 years old. Limited to 65,000 visas per year. The current wait time for these visas is 11-22 years.
The wait times listed above are only the amount of time family members must wait before coming to the United States. These wait times do not include the time it took for a LPR to become a citizen (i.e. before becoming eligible to petition for certain family members to come to the United States), nor does it include the time a family member must wait after coming to the United States to receive citizenship (an additional minimum of 5 years).

Given the wait times and numerical restrictions noted above, it becomes obvious that it is not easy to immigrate to the United States even if you have family members that have lawful permanent resident or citizen status--which, due to historical circumstances and the availability of other visas we will discuss shortly, is not common for low-income people.
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Employment-based immigration:
Employment-based visas are visas which are granted to meet the needs of US economy. The Immigration and Nationality Act provides for a minimum of 140,000 employment-based visas per year. While technically there are five preference categories for entry under employment-based immigration which designate specific criteria, qualifications, and numerical caps for varying sectors of the economy, we can umbrella these preferences under two larger categories: employer-sponsored and investor.

Employer-sponsored: Employers may sponsor workers to come to the United States to fill positions in their companies. To do so, they must:
  • Get the US Department of Labor to certify that hiring a foreign worker will not adversely affect wages and labor conditions for citizen workers
  • Have a "labor certification" from the US government which allows them to hire a foreign worker who is otherwise admissible to the United States
  • Be willing to pay around $10,000 in legal fees per applicant to file the necessary paperwork
Preference for these positions is given to immigrants with "extraordinary" or "exceptional" ability in their field, and immigrants cannot apply for these visas on their own. They must be hired by a company first, and then the company must apply for the visa on their behalf.

However, due to backlogs in previous years, the current wait-time for such visas ranges between 6 and 10 years.

Investor: Investors can also receive employment-based visas if they are willing and able to invest a minimum of $1 million dollars in the United States, and create "at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family."

While this is one of the quickest ways to get a green card, it is, quite obviously, not an option available to many people.

The employment-based immigration system offers virtually no visas to low-wage, low-educated workers as very few low-wage employers would be willing and/or able to expend the necessary funds to apply for employment-based visas.
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Diversity Immigration: In the 1990s, Congress created the Diversity Immigrant Visa Program which makes 50,000 permanent visas available to persons who meet strict requirements and come from countries which have low immigration numbers.

Given that most immigration to the United States is family-based, countries which have a lot of immigrants permanently residing in the United States will be the countries to send the most new-immigrants each year. To correct this imbalance, the diversity visa program allows a random selection (chosen through a lottery) of immigrants from low-volume countries to come to the United States each year. An immigrant from these countries can apply free of charge, but must have completed high school or have at least two years of work experience in a skilled profession.

Since countries like Mexico, India, China, Haiti, El Salvador, and many others all have high numbers of immigrants in the United States (both documented and undocumented), people from these countries are ineligible to apply for diversity visas.
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Refugees and Asylees: The final way to legally immigrate to the United States on a permanent basis is to enter as a refugee or to claim and be granted asylum status.

To be eligible for either of these categories, an immigrant must prove a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion."

Notably, economic hardship does not provide grounds for refugee or asylum status; therefore, people fleeing poverty and seeking low-wage work in the United States cannot seek lawful status in this manner. Similarly, people fleeing environmental or natural disasters cannot apply for permanent status in this category.
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As stated when we began this discussion, these four immigration paths--employment-based, family-petitioned, diversity lottery, and persecution--are the primary ways to get lawful permanent status in the United States. But as can be seen through our examination of these paths, they virtually exclude all unskilled and low-wage workers from legally entering the United States.

So while it may make sense to say that undocumented immigrants should get in line and migrate "the legal way," there is no legal way for them to do so. So who are they and why do they come?

That's the question I'll be answering next week on The Immigration Dilemma.

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1. Before reading this post, what were some common misconceptions about the US immigration system that you have either heard or even held yourself?
2. As I talked about at the beginning of the post, many people feel undocumented immigrants should "get in line" to immigrate the legal way. What light does this discussion of the legal immigration system shed on that perspective?
3. What role do you think the economy plays in immigration? How does the US legal immigration system respond to that role?
4. Do you think people escaping poverty or environmental and natural disaster should be eligible for refugee status?

An Immigration Dilemma: An Introduction
A Nation of Immigrants: A History (Abridged)
Who Are "Illegals" and What Is Undocumented Migration?
Immigration Concerns: From Birthright to Welfare
The Ins and Outs of Immigration Reform



  1. I am not sure if this is the right forum or place for this comment. I feel a little dismayed about the pending immigration reform that we may see in the near future. From what I have read, this reform will help the "12 million" undocumented workers. It will allow them to earn citizenship. Now don't get me wrong, I am not against this at all. But I will say that I feel as if this reform is leaving another large group out. This group are the "legal" temporary residents. I am one of them. IT boggles my mind that there is talk about helping undocumented workers, but the people who have followed the rules are left out in the cold. We are just as important as the illegals, when it comes to contributing to this economy. We bring new ideas, innovation, skills and character to the US. Currently there are three paths for us to stay. Employer, lottery and marriage. But some of us do not fall into those categories. We pay our taxes, own homes, but are getting the short end of the stick.

  2. Quinton, thank you for your comment. I appreciate your concern. FCNL advocates for an immigration reform bill that would protect the rights of temporary workers.

    We support efforts to allow temporary workers to apply for green cards, change employers, and bring their families with them. We also urge Congress to strictly enforce labor and employment laws, so that workplace conditions can be improved and wage theft and other abuses can be averted.

    The legislative text of the upcoming immigration reform bill has not yet been finalized. I encourage you to keep speaking up and to call your members of Congress to raise this important issue.