What Is Immigration Law in the U.S. and How Does It Work?
The Immigration and Nationality Act (INA), passed in 1952, is a set of legal provisions related to immigration issues within the United States. Over the last 60 years it’s undergone modifications. One of the subjects covered by the INA is how a foreign national can adjust their immigration status and apply for Legal Permanent Residency, also known as a Green Card. The United States Citizenship and Immigration Services (USCIS) is the government agency that handles these procedures.
You can apply for a Green Card in the U.S. or abroad. In the U.S. you’ll have to file for what’s called an Adjustment of Status. If you’re abroad, you’ll have to file for Consular Processing at the nearest U.S. embassy or consulate.
The following will focus on this legal process within the United States.
What Is An Adjustment of Status?
Adjustment of Status is the Green Card application process that takes place in the U.S. You’ll receive this card once your petition has been approved.
Depending on the type of immigration category, you can either do this immediately or wait until there's a vacancy. We’ll talk about this in detail below.
Filing for an Adjustment of Status mainly consists of filling out Form I-485, also known as the Application to Register Permanent Residence or Adjustment of Status.
The Main Ways to Adjust Your Status in the U.S.
There are many ways to adjust immigration status and obtain a Green Card. Essentially what you have to do is identify which procedure fits your circumstances and establish if you’re eligible. The type of immigration category that applies to your situation will determine the procedure for which you’ll need to apply. You can apply for a Green Card if you’re:
- An immigrant worker
- An immediate family member of a U.S. citizen or permanent resident
- A victim of a crime
This guide will explain how this applies to people with immediate family in the U.S. or who were victims of crime.
Adjustment Through an Immediate Family Member
Once you demonstrate that you’re an immediate family member of a U.S. citizen or permanent resident, you can apply for your Green Card. In this case, your U.S. family member acts as your sponsor or petitioner. This means that they have to prove that you’re related as well as have sufficient financial means to ensure that you can live in the U.S.
Below is a general explanation of the process for this type of petition if you’re already in the U.S.:
- Your sponsor or petitioner must complete Form I-130 (the document establishing the familial relation) and wait for approval
- Check visa availability. Depending on the relation to the petitioner, the applicant can directly apply for the visa or wait until one is available.
- Request the Adjustment of Status through Form I-485
- Visit the Application Support Center to take biometric data
- Go to an interview
- Await the final decision
Who can be petitioned for?
Depending on their circumstances, a sponsor can help different family members. If they’re a U.S. citizen, they can petition on behalf of their:
If they’re a permanent resident, they can petition on behalf of their:
- Unmarried children under 21
Categories of relatives
The U.S. authorities classify family members into two categories:
- Immediate relatives: The number of Green Cards is unlimited for this category. Spouses, single children under 21, and parents of a U.S. citizen all qualify.
- Preference relatives: Green Cards in this category are limited. You’ll have to wait until a Green Card is available to proceed with the petition. The following qualify as preference relatives:
- Single children over 21, married children of all ages, and siblings of a U.S. citizen
- Spouses and unmarried children under 21 of a U.S. permanent resident
Family of military service members
Spouses and children of U.S. military service members may be eligible for automatic citizenship.
Generally, military spouses need to obtain a Green Card before they can start the process of naturalization. To do this, they’ll have to follow the same process as the petition for a foreign relative: submit Form I-130 and Form I-485. To apply for citizenship, family members will also need to meet other requirements, such as:
- Be over 18
- Be in the U.S. at the time of naturalization
- Know how to read, write, and speak English at a basic level
- Have basic knowledge of U.S. history
In exchange, the children of a member of the U.S. military can automatically obtain U.S. citizenship without needing a Green Card or being in the country.
Adjustment of Status for Victims
Foreigners who were victims of certain crimes can request a visa to stay temporarily in the United States and eventually apply for permanent residence. Below are a few examples of these visas and their eligibility criteria.
Victims of Crimes: U Visa
The U Visa is intended for people who were victims of crimes such as stalking, torture, or kidnapping. The visa is granted as a nonimmigrant U Visa. It can be applied for in the U.S. or at a U.S. consulate or embassy. This visa is valid for four years and can be extended under special conditions.
Eligibility criteria for the U Visa:
- Be the victim of a qualifying crime
- The crime must have happened in the U.S. or violated U.S. law
- Have suffered significant physical or mental abuse as a result of the crime
- Cooperate with the police for the criminal investigation or prosecution. If the applicant is under 16 or can’t provide information due to a disability, their parental guardian or legal representative can cooperate on their behalf.
- Be eligible for entry into the United States
Steps to apply for the U Visa:
- Fill out Form I-918
- If you are inadmissible, submit Form I-192, which is a request for exemption of grounds for inadmissibility
- Write a personal statement describing the criminal activity of which you were the victim
- Submit evidence establishing each of the eligibility requirements mentioned above
The U Visa leads to a Green Card. In order to apply for a Green Card, you’ll need to have lived in the U.S. for at least three consecutive years under the Non-Immigrant U Visa. You’ll also have to provide information to law enforcement agencies once you receive the U Visa.
Victims of Human Trafficking: T Visa
The T Visa is intended for people who were victims of human trafficking—sexual or labor. This visa is valid for four years (with the possibility for extension) and is granted as a nonimmigrant T visa.
Eligibility criteria for the T Visa:
- Be a victim of severe human trafficking
- Be in the United States, American Samoa, the North Mariana Islands, or a port of entry due to being a human trafficking victim
- Cooperate with law enforcement agencies in the investigation or prosecution for human trafficking (those under 18 or those who are incapable of cooperating due to physical or psychological damage are exempt)
- Demonstrate that you would suffer from extreme difficulties from personal injury if you left the U.S.
- Be eligible for admission to the United States
Steps to applying for the T Visa:
- Submit Form I-914
- If you are inadmissible, you’ll also have to submit Form I-192
- Submit a personal statement explaining how you were a victim of human trafficking
- In some cases you’ll have to cooperate with law enforcement agencies for the investigation and/or prosecution. To do this you’ll have to submit evidence like trial transcriptions, judicial documents, or articles from the press, etc.
- Submit documentation demonstrating that you meet all the eligibility requirements above
The T Visa leads to a Green Card. To obtain a Green Card with a T visa, you’ll have to have continuously lived in the U.S. under a nonimmigrant T visa status for three years. You can also be eligible once investigations or prosecutions are complete, whichever comes first.
Victims of domestic violence
Immigration procedures based on familial relationships require a U.S. citizen or permanent resident to file the paperwork and petition for their foreign family member. That said, there are situations where the petitioner is violent toward the relative for whom they’re petitioning. For example, they may threaten to suspend or withdraw their petition as a means to control, coerce, or intimidate them.
With the passing of the Violence Against Women Act (VAWA), non-citizens abused by their sponsoring relative can self-petition for a Green Card without the abuser’s consent.
The following people can file a self-petition:
- Spouses and children of U.S. citizens or permanent residents
- Parents of U.S. citizens over 21
Generally, a non-citizen petitioning on their own behalf is known as a VAWA self-petitioner. If the USCIS approves the self-petition, the person can apply for legal permanent residency and get a Green Card.
This can be done through Consular Processing if the VAWA self-petitioner is outside the United States or by filing for an Adjustment of Status if they're in the country.
If you’re in the U.S., the procedure to petition on your own behalf for VAWA consists of submitting Form I-360 and Form I-485 (just like in the petition for foreign relative procedure) in order to get a Green Card.
Young victims of abandonment, abuse, or mistreatment (SIJ)
Underage children in the U.S. who have been abused, abandoned, or neglected by their parents are eligible for Special Juvenile Immigrant Status (SIJ) and can apply for a Green Card.
Main eligibility criteria for SIJ status:
- Be under 21 years at the time SIJ status is filed
- Currently live in the U.S.
- Be single
- Have a valid court order issued by the U.S. Juvenile Court (some courts issue these orders only to people under 18) determining that the child:
- Is the ward of the court, a state agency, or someone designated by the court
- Returning to their country of origin or where their parents reside isn’t a safe option
- Can’t reunite with a parent due to any of the following circumstances:
- A similar cause under state law
Steps to file a petition for SIJ status:
1. Submit Form I-360
2. Submit one of the following documents verifying the petitioner’s age:
- Birth certificate
- Official government-issued ID issued abroad
- Another document proving age
3. Submit a valid order from the Juvenile Court with the above characteristics
5. Complete Form G-28 if you have an attorney or a licensed representative
Other Special Cases for Adjusting Your Immigration Status
There are exceptional cases where a foreigner can adjust their immigration status in the United States. For example, if someone’s lived in the country for over 40 years or by Congressional decision.
Residence for over 40 years
One section of U.S. immigration law includes the possibility of issuing Green Cards to undocumented people who have already entered the country. This is called the registry.
The requirements to obtain permanent residency through the registry are:
- Entered United States before January 1, 1972
- Have resided in the United States continuously since entering the country
- Have good civil conduct
- Be eligible for citizenship
- Not be deportable
- Not be a criminal or involved in serious criminal activity, like drug or human trafficking
To apply for a Green Card under the registry’s provisions, you’ll have to submit Form I-485.
Decision by Congress
The U.S. Congress has the power to adjust the status of undocumented immigrants. That said, this power is only used in exceptional and extremely rare cases. For example, if a foreigner did something heroic benefitting the nation or U.S. citizens, Congress could decide to grant them permanent residency or citizenship in recognition of their noble act.
This path to obtain a Green Card isn’t something that foreigners should necessarily aspire to. While Congress does have the power to recognize and grant this status, heroic acts are by definition extraordinary and altruistic.
Diversity Visa Program (Visa Lottery)
Each year 50,000 permanent residency visas are issued around the world through the Diversity Visa Program. These visas are selected through a digital lottery and are granted to citizens from countries that have had a lower number of emigrants to the U.S. in the past five years.
To participate in this lottery, you’ll have to sign up electronically through the official website during the designated registration period. It’s free to participate in the lottery.
These are the main requirements for the visa lottery:
- Be a native citizen of a qualifying country
- Have completed high school or two years’ work experience that requires two years of training
Can I Apply for Residency if I Entered the U.S. Undocumented?
There are two sections of U.S. immigration law that allow people who entered the country without documentation to apply for a Green Card. One was previously mentioned: the registry. The other is section 245(i) of the Legal Immigration Family Equity (LIFE) Act.
This regulation allows certain people in the U.S. to get a Green Card who don’t meet the conditions necessary to apply for an Adjustment of Status. This permanent residency can be obtained regardless of:
- How you entered the U.S. (with or without the corresponding documentation)
- If you worked in the United States without authorization
- You entered the country legally but lost your legal status
Eligibility criteria to apply for a Green Card based on section 245(i):
- Be the beneficiary of an authorized immigration petition (Form I-130 or I-140) or an Alien Employment Certification (ETA-750 Form) submitted prior to April 30, 2001
- Currently be the beneficiary of an authorized immigration petition or an Alien Employment Certification
- Have a visa that’s immediately available
- Be eligible for admission to the United States
How to apply for a Green Card based on section 245(i):
Submit Form I-485 along with the respective Supplement A and pay the corresponding fees (approximately $1,000), unless you qualify for an exemption.
The Importance of Adjusting Your Immigration Status
Adjusting your immigration status is vital to a stable, peaceful life in the United States and avoiding potentially serious problems.
Hopefully this guide has helped you understand your immigration status and the procedures involved in obtaining a Green Card. Keep in mind that you'll need the assistance of an experienced immigration attorney to help you navigate all of these legal processes. This saves time and is the most secure method to both apply for and receive a Green Card.We know that adjusting your immigration status can be stressful and that the different avenues can be overwhelming. There's no need to worry, though! We are here to help and support you every step of the way. If you have any questions about this topic or anything else, feel free to contact us through our chat. Remember, when it comes to your immigation status, SABEResPODER!