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The United States immigration system operates on several fundamental principles: family reunification, attracting immigrants with valuable skills for the U.S. economy, providing refuge to those in need, and embracing diversity. This comprehensive guide sheds light on the structure and functioning of the U.S. legal immigration system.
The Immigration and Nationality Act (INA)
The Immigration and Nationality Act (INA) serves as the primary body of law governing U.S. immigration policy. The INA allows the U.S. to issue up to 675,000 permanent immigrant visas annually across various categories. Additionally, there is no annual limit on admitting spouses, parents, and children under 21 of U.S. citizens. Furthermore, the President collaborates with Congress each year to establish the number of refugees to be admitted through the U.S. Refugee Admissions Program.
Upon obtaining an immigrant visa and arriving in the United States, individuals become lawful permanent residents (LPRs). In certain cases, noncitizens already residing in the U.S. can attain LPR status through the “adjustment of status” process.
LPRs have the eligibility to apply for nearly all jobs, except those specifically reserved for U.S. citizens, and they can stay in the country indefinitely, even during periods of unemployment. After residing in the United States for five years (or three years in certain situations), LPRs are qualified to apply for U.S. citizenship. The standard path to citizenship requires becoming an LPR first.
I. Family-Based Immigration
Family-based immigration is a pivotal aspect of U.S. immigration policy, facilitating the reunion of families in the United States. The family-based immigration system permits U.S. citizens and LPRs to bring certain family members to the country. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.
Immediate relatives of U.S. citizens have an unlimited number of available visas annually. Eligible immediate relatives are spouses, unmarried minor children under 21, and parents of U.S. citizens (the petitioner must be at least 21 years old to sponsor a parent).
Family preference system, on the other hand, has a limited number of visas allocated each year. Eligible individuals under this system include adult children (both married and unmarried) and siblings of U.S. citizens (the petitioner must be at least 21 years old to sponsor a sibling), as well as spouses and unmarried children (both minor and adult) of LPRs.
To balance the number of immigrants based on family relationships, Congress has established a complex formula for calculating the available family preference visas each year. The process considers various factors and ensures a minimum allocation of 226,000 visas annually. As a result, family-based visas may exceed the initial 480,000 cap. In FY 2019, family-based immigrants accounted for 68.8 percent of all new LPRs in the United States.
For admission through the family-based immigration system, a U.S. citizen or LPR sponsor must file a petition for their relative, proving the legitimacy of the relationship and meeting specific income requirements. The sponsor must also sign an affidavit of support, taking financial responsibility for the family member(s) upon their arrival or adjustment to LPR status within the U.S. The relative seeking immigration must meet certain eligibility requirements, including a medical exam and required vaccinations, an immigration and criminal history assessment, and a demonstration of not being primarily dependent on government assistance.
Spouses and children accompanying or following the principal immigrant are referred to as derivative immigrants, and they are also counted towards the numerical caps for the family preference categories. This leads to situations where visa slots allotted for specific categories are used by spouses and children rather than the intended relatives. For example, in FY 2019, out of 61,031 admissions under the “brothers and sisters” category, only 22,179 were actual brothers or sisters, while the rest were spouses (14,956) and children (23,896) of the siblings of U.S. citizens.
II. Employment-Based Immigration
The United States offers multiple avenues for immigrants with valuable skills to come to the country either temporarily or on a permanent basis.
Temporary Visa Classifications allow employers to hire and petition for foreign nationals to fill specific jobs for limited periods. Most temporary workers are tied to their petitioning employers and have restricted job mobility. There are over 20 types of visas for temporary nonimmigrant workers, such as L-1 visas for intracompany transfers, various P visas for athletes, entertainers, and skilled performers, R-1 visas for religious workers, and various H visas for both highly skilled and lesser-skilled workers, among others. Eligibility requirements, duration, ability to bring dependents, and other factors vary depending on the visa classification. In most cases, these workers must leave the U.S. if their status expires or if their employment is terminated. However, some may be eligible for permanent employment sponsorship based on their skills and job type.
Permanent Immigration has an annual numerical limit of 140,000 employment-based immigrants, including their eligible spouses and minor unmarried children. Any unused family preference immigrant numbers from the previous year are added to this cap to determine the available visas for employment-based immigration. The total number of visas is then divided into five preference categories. Depending on the category, the sponsor may need to test the U.S. labor market or file a petition with U.S. Citizenship and Immigration Services (USCIS) before the foreign national can apply for an immigrant visa at a U.S. embassy or consulate or adjust their status to LPR if they are already lawfully present in the U.S.
III. Per-Country Ceilings
In addition to the numerical limits placed on various immigration preference categories, the INA also imposes a limit on the number of immigrants coming from a single country. Currently, no single country can account for more than seven percent of the total number of people immigrating to the U.S. in a fiscal year. This provision aims to prevent any one nationality from dominating immigration flows.
IV. Refugees and Asylees
Refugees are granted admission to the U.S. due to their inability to return to their home countries because of a well-founded fear of persecution based on factors such as race, membership in a particular social group, political opinion, religion, or national origin. They apply for admission from outside the U.S., typically from a “transition country” outside their homeland. The President, in consultation with Congress, determines the numerical ceiling for refugee admissions each year, and regional allocations are established. After experiencing a decline post-9/11, the number of refugees admitted to the U.S. rose during the Obama administration but decreased significantly under the Trump administration. The Biden administration increased the FY 2021 refugee ceiling to 62,500 but faced challenges in admitting refugees at the expected rate.
V. The Diversity Visa Program
The Diversity Visa Program, established by the Immigration Act of 1990, is designed to offer immigration opportunities to nationals from countries with low rates of immigration to the U.S. Each year, 55,000 visas are randomly allocated through a computer-generated lottery to individuals from countries that have sent fewer than 50,000 immigrants to the U.S. in the previous five years.
