The four main types of immigration status in the US are citizenship, permanent residence(lawful residence with a green card), nonimmigrant visa/status and visa waivers, or parole. There are various ways to gain each type of status depending on one’s circumstances. Below is a brief outline of each category:
Any person born in the United States is automatically a U.S. Citizen. Any person born to parents who are United States’ citizens has a claim to US citizenship, regardless of where they are born but still depending to when they were born as the rules have been changes over the years. This also applies to any person born outside the United States, but one or both of their parents were US citizens at the time of birth, and anyone with legal status in the US who is under 18 years old whose parent naturalized will be automatic citizen.
A child born to at least one parent being a US citizen (even if living abroad) now is considered a United States citizen but must prove their parent’s U.S. citizenship and better to register such a child at the US consulate as a U.S. citizen born abroad. Any person may be qualified to become a citizen if they are in the US Armed Forces or are a child whose immediate family member (i.e. parent) currently serving in the US Military, among other things.
A person who is not born with citizenship may potentially apply for naturalization through various processes after they obtain legal permanent residency. This includes being married to a US citizen and being legal permanent resident for at least three years, having legal permanent residence status for at least five years, having served in the US armed forces for at least one year (or more if certain conditions apply), be granted citizenship by the Congress.
Immediate relatives of US citizens— parents, spouses, and unmarried children younger than 21 years of age—are exempted from most standard US immigration requirements such as visa limits and/or unauthorized stay in the United States as long as they enter the United States legally. United States citizen can petition for his/her parents, siblings, spouse, and children after turning 21-years-old. The current wait for a sibling of a United States citizen to obtain an immigrant visa is almost 20 years and for a married son or daughter of a United States citizen is 12-15 years. Parents, spouses, and children under 21, do not have to wait for a visa numbers to become available as they are considered an immediate relative of a U.S. citizen and only need to wait for their case to process and pass the interview and medical exam to obtain their immigrant status (which currently takes a very very long time due to COVID and other issues with the management of USCIS).
Legal Permanent Residence (LPR)
Any person who has been granted legal permanent resident status (LPR) has a green card and may legally reside in the United States as a permanent resident. This also means they are allowed to work, live, study, and remain in the United Stated indefinitely (among other benefits).
A LPR may potentially lose his/her status by moving out of the country for longer than one year, committing certain crimes that make them removable, claiming to be a United States citizen, voting in a U.S. election, among other things. A legal permanent resident can also apply for citizenship after living in the US as a green card holder for five years (or three years if married to a citizen), provided they meet specific requirements, pass the naturalization tests of English language and civics, and pay applicable fees.
Once US immigrants obtain LPR status, they may petition for certain family members to receive similar benefits; this process is formally known as family-based
US immigration or sponsorship. Immediate relatives of US citizens— spouses, and unmarried children younger than 21 years of age—can be petitioned to enter the United States as qualified spouse and/or child of LPR if the visa numbers available for them after LRP files an immigrant family petition (best known as I-130) for them.
Non-immigrant visa status or visa waiver
Nonimmigrant status is a temporary residency granted to people who come to the United States temporarily, typically for work or study purposes. Temporary residents may only remain in the country for a certain period dictated by both their visa and their I-94 they received at their admission from the Customs and Border Patrol (CBP) which can be found at cbp.gov .
Every CBP officer at the boarder has power to grant entry for up to the amount of time allowable by law for each type of visa. A nonimmigrant status holder may not be employed or attend school in the United States without specific approval from US Citizenship and Immigration Services (USCIS) or consulate (as in case of a treaty E-visa like E-2 Visa or E1 Visa), among other things.
Nonimmigrant visa holder can change status from one nonimmigrant status to another while in the United States if they are eligible for it and they can extend their current status if they still have time left of their visas. Person who changed status in the United States can only hold that status while in the United States. The moment they leave, they would have to go through the same process at the U.S. consulate in their country to obtain a proper nonimmigrant visa to be able to return back to the United States if they want to continue to be on a specific nonimmigrant visa.
People can also gain nonimmigrant status by being immediate family members of certain foreign government officials or employees of international organizations that have offices in the United States, or work for NAITO.
Visa Waiver Program
The Program makes international travelers who are citizens or nationals of certain countries eligible to enter the country without obtaining a visa first, as long as they meet specific requirements.
Travelers can only use this status if they travel using an Electronic System for Travel Authorization-approved airline program known as ESTA, and must leave within 90 days from entry. They cannot change status to any other visas while in the United States and cannot extend their status unless true emergency (like COVID pandemic shutdown). Visa Waiver does not provide lawful permanent resident status or employment authorization.
Any person not in lawful status in the United States will usually be considered unauthorized to be in the United States by the Department of Homeland Security and its division: US Citizenship and Immigration Services (USCIS). This could mean that the person entered the country without legal authorization, overstayed their allowable I-94 stay, did not leave when their stay expired, was charged and/or convicted of any crime, or otherwise violated their status somehow.
If caught by Immigration Customs Enforcement (ICE) officials, most people with unlawful presence will be issued a notice to appear before an immigration judge and maybe put in jail and face deportation from the United States. In this case, a Respondent who is in deportation proceedings would need an immigration lawyer to be represented in court. If the Respondent, through his/her attorney, shows eligibility for any relief from a deportation, they can be granted status adjustment after the deportation case has been completed.
Undocumented immigrants who have been present in the United States unlawfully and cannot change or adjust their status are not authorized to work in the United States and scared to apply for jobs due to their lack of legal status and potential fear of deportation if they are caught working illegally. Some undocumented individuals in the USA also work under someone else’s Social Security number or similar identity theft scheme which is a federal crime and can make a person deportable.
The DHS estimates that more than 8 million unauthorized immigrants either worked with false identities or used someone else’s authorization in 2012, citing “studies and data” in its report. When a person works with someone else’s identity, it is hard to prove they have been present in the United States, so when in deportation proceedings, it would be very hard to apply for Cancellation of Removal as proving that undocumented person was in the United States for more than 10 year before they were referred to immigration court is virtually impossible even if there are multiple U.S. citizen children and/or spouse who would be harmed if they are deported.
Refugees are individuals unable or unwilling to return to their home country for fear of persecution based on specific characteristics such as race, religion, and political opinion. They have to apply while outside the United States before physically entering the United States; this process is known as applying for asylum “within” one’s country of nationality or residence.
After being screened by various US agencies, including the DHS and the State Department, they apply through standard processes to enter the United States outside of regular US immigration quotas (which they might otherwise not be able to achieve).
The vetting process often takes one year or more, once an individual has officially applied; during this time, refugees work with resettlement organizations to find housing and employment opportunities in new communities. Close family members can also be granted refugee status when reuniting with less immediate relatives already living in the United States legally.
Such individuals are considered “parolees” until they have physically entered the country, at which point their status changes to that of an asylee. When they obtain the asylum status, they must wait 12 months before filing adjustment of status. A person can remain on their asylum status as long as they remain in the United States. However, waiting too long to adjust status is not good as until one adjusts status and waits 5 years, they cannot apply for a United States citizenship and won’t be able to travel or receive other benefits LPRs and U.S. citizens enjoy.
Asylees are individuals unable or unwilling to return home due to the same types of persecution cited by refugees. The difference is that they apply for a status after they are already in the United States.
If granted, an individual gains status as an asylee and may petition for certain family members (such as spouse and/or children) to join them in the United States (the petitioning process takes place through standard US immigration channels of USCIS or Immigration Court and a lawyer is a must to see this process through. There are two types of asylum processes: affirmative and through the immigration court. The affirmative application must be filed by the asylee within one year of their first entry to the United States through the USCIS asylum application and attend interview at the designated asylum office.
Additionally, if denied asylum, they may still receive similar benefits through an immigration court as they would be referred to the immigration court for deportation proceedings after their affirmative asylum application has been denied. If an individual surrenders himself at the border, or they are apprehended by ICE officers and they claimed fear of prosecution in their home country, they can then apply for asylum directly through immigration court.
If an affirmative application for asylum is not filed within 1 year of entry, then the person is barred to apply for asylum unless they can show that there has been a change in their home country situation making them eligible for asylum now. These applications must be filed within 1 year from the situation change in their home country.
Nonimmigrants are people who enter the United States temporarily for work, study, or other purposes allowed by US authorities (usually in one-year increments, but sometimes in multiple years dependent if they maintain their nonimmigrant status properly). This group includes international students and scholars studying at educational institutions in the US; these individuals typically maintain legal nonimmigrant status while enrolled full-time in higher education programs or English language programs during summer months.
They typically must return home upon completing their educational Program unless they qualify for another immigration category to stay longer; some may also be eligible to bring their dependents (spouse and children) with them as nonimmigrants. Other common types of nonimmigrant holders include tourists, temporary workers, ambassadors, and other diplomatic officials representing their home governments.
Illegal immigrants enter or remain in the country without approval from US immigration authorities; this group includes individuals who cross the border without proper documentation (undocumented migrants) and people who enter legally but later remained in the United States beyond the allowable time. This group of people have 3 or 10 year bar of reentry if they stay passed 6-12 months after their allowable stay and leave the country or deported.
Some illegal immigrants who have been deported (“removed”) from the country but have since re-entered illegally again—this process is known as “re-entry after removal.” Those individuals may have triggered a permanent bar of re-entry and cannot not adjust status nor obtain visas to the United States. Some limited exceptions apply.
Other illegal immigrants entered o been brought to the United States as children and have lived here for most of their lives. These individuals are often called “DREAMers.” They may receive special treatment and relief from deportation (or at least be allowed to remain in the United States) under new rules implemented by the administration. The correct status these children were allowed to obtain starting Obama administration is called DACA (deferred action for childhood arrivals). This status, when/if granted, allows an individual to legally work and study in the United States. They may also ask for a permission not leave for a short period of time to visit family. This program does not grant any status to its recipients but at least it gives them the opportunity to earn legal wages and step out of the shadows adults who brought them in put them into.
Again, this is particularly common among undocumented group of people who came to the US as young children and have grown up in America, attended increasingly competitive colleges here, and call the United States their home.
Another lesser-known type of illegal immigrant is called an “overstay” —they entered the US legally but overstayed their authorized period of stay without extending or change it. Overstays often remain in the United States involuntary due to personal or other types of issues, or they remain longer because they hope to find work or join family members in the United States.
An overstay cannot adjust status or leave the United States unless there are parent, spouse or minor child of a U.S. citizen who must file an immigrant petition for them, and they would file their adjustment of status to correct their immigrant status in the United States. The only other exception is if such a person is a victim of a violent crime (U-visa) or qualifies to file under Violence Against Women Act (VAWA) or T-visa or an act by Congress or Presidential Pardon.
Nonimmigrant entering the United States for a temporary stay must leave before the stay runs out. This means that the visa-holder can only remain in the US for a certain period and there are also maximum times in a calendar year a nonimmigrant cannot exceed on a nonimmigration visa and must leave and then re-enter if allowed to come in by CBP.
The most common type of nonimmigrant visa is called the B1/B2. It allows someone to legally enter and temporarily reside in the United States (for up to 6 months or less than 180 days in any calendar year and/or on any single trip) when they are either visiting, touring, or for business-related matters that do not constitute employment by or in the United States (this is also known as “business travel”). These B1/B2 are often used by people who need to attend short-term professional conferences, among other reasons related to conducting business in the United States.
Most visas and statuses unique to each set of facts presented by a person interested in immigrant or nonimmigrant status in the United States and would benefit from talking to an immigration attorney to establish eligibility for an immigration benefit in the United States.