What is the Legal Process to Immigrate to the U.S.A?

Introduction –

The United Nations Migration agency — International Organization for Migration (IOM) defines a migrant as any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of

1. the person’s legal status;
2. whether the movement is voluntary or involuntary;
3. what the causes for the movement are; or
4. what the length of the stay is.

So, as per the definition a person who satisfies the above requirements which have been listed out in the definition, is a migrant regardless of the length of her stay. But when a migrant seeks to migrate to another place and permanently settle there, she shall be called an immigrant.

According to the United Nations, the United States of America (U.S.A.) has the highest number of immigrants with 48 million in 2015. And according to Pew Research Center projections made in 2015, immigrants will make up a record of 18% of the U.S. population in 2065 as compared with 14% today and 5% in 1965. With the outbreak of the COVID-19 the increase in the percentage of immigrants in the U.S. may be less than 4% by 2065.

However, it is sure that as time passes by, the rate of immigration to the U.S. will increase.

Now, if an immigrant enters the U.S. illegally and stays there, he/she shall be categorized as an ‘undocumented immigrant’. This does not mean that she cannot live in the U.S. but she cannot work and can have no access to public benefits like health care, driver’s license, etc.  If one tries to illegally immigrate to the U.S. for better livelihood, he/she will ultimately find himself/herself in the middle of nowhere. However immigrating illegally to seek refuge is a completely different matter. A research estimate shows that about two-thirds of the world’s undocumented immigrants have been in the U.S. for at least 10 years.

So to ensure that immigration shall be beneficial to both the immigrant and the destination country, it is better to immigrate legally and to immigrate legally to the U.S., the immigrant must be aware of the U.S. rules and laws governing immigration.

The U.S. Immigration laws and rules –

The U.S. immigration law is governed by the Immigration and Nationality Act of 1952.

Immigrants are expected to immigrate into a country for three reasons-

1. To reunite with family member(s)
2. For Employment purpose
3. To seek refuge or asylum

There are different rules for each of the above categories.

Again, if one is already in the U.S., he/she can apply for a Permanent Resident (Green) Card which makes him/her a Lawful Permanent Resident (LPR), and thereby he/she shall be permitted to work and avail himself/herself of various public benefits. Usually, this happens when one seeks asylum.

But if one is outside the U.S., and wants to immigrate to the U.S., he/she should apply for an immigrant visa through a U.S. Department of State Embassy or consulate abroad.

The Procedure to get an Immigrant Visa-

• Submit a petition with the United States Citizenship and Immigration Services (USCIS)
• Once the petition is approved after may steps of processing, apply for an immigrant visa
• The next few steps involve payment of fees, submission of necessary documents, etc.
• Medical Examination
• Applicant Interview: For this, the applicant needs to find a U.S. Embassy or Consulate near her residence where he/she can be interviewed for the immigrant visa.
• Confirmation

So as mentioned before, the rules for immigration differ with the kind of immigration that one seeks — family-based immigration or, employment-based immigration or, to seek refuge and asylum.

Family-Sponsored Immigration:-

When a person who is related to a U.S. citizen or a U.S. permanent resident, seeks to immigrate to the U.S., he/she can be admitted either as an immediate relative of the U.S. citizen (spouse, unmarried minor children or parents) or through the Family Preference System which includes relatives of the U.S. citizen who are adult children or siblings and, spouses and children of the LPR.

The U.S. citizen or the LPR must sponsor and petition for the relative who is a foreign citizen.

1. Employment-Based Immigration:-

In this case, the prospective employer must file an immigrant petition for the foreign citizen.

2. To seek Refuge or Asylum-

A refugee is a person who immigrated to another country because of her inability to return to the country of origin on the grounds of persecution. Asylum is provided to those already in the U.S., who seek protection from persecution that the refugees face.

People under this category are eligible to become LPRs one year after their admission to the U.S. as a refugee or one year after receiving asylum.

Apart from these, there is another way of obtaining an immigrant visa in the U.S. –

Diversity Visa Program: This is also known as the Diversity Visa Lottery which was created by the Immigration Act of 1990. People from countries with low U.S. immigration rates can apply through this lottery. About 55,000 visas are allocated randomly to the applicants of this program. For this, the qualifications require that the applicant must have a high school education (or its equivalent) and have a minimum of two years working in a profession within the past five years. Spouses and unmarried children of the applicant may also get an immigrant visa.

The Kentucky Consular Center (KCC) is the only organization in the U.S. that is authorized to assist the selected applicants in the Diversity Program to get an immigrant visa. A Fee is charged only when the selected applicant applies for the visa at the U.S. Embassy or Consulate.

The Immigration and Nationality Act of 1952 allows the U.S. to grant up to 6,75,000 permanent immigrant visas each year — 4,80,000 visas for family-sponsored immigrants, 1,40,000 visas for employment-based immigrants and 55,000 visas for Diversity Visa Program applicants. There is no limit on the annual admission of U.S. citizens’ spouses, parents, and minor children. Each year, the President is required to consult with the Congress and set an annual number of refugees to be admitted to the U.S. through the U.S. Refugee Settlement Process.

Changes in Immigration Laws under Trump Administration-

• New restrictions have been imposed on asylum seekers which include preventing migrants from applying for asylum if they traveled through another country before reaching the U.S.
• Banning immigrants from Muslim majority countries like Yemen, Iran, Syria, etc.
• Bringing down the limit of refugee admissions from 1,10,000 to 50,000.
• Targeting the end of Diversity Visa Program
• Ban on providing temporary visas to pregnant women who intend to travel to the U.S. give birth.

As a part of its COVID-19 response, the Trump administration has temporarily restricted legal immigration to prevent the spread of the pandemic.

This article is written by Tonangi Sanjana Priya, student of 1st year, B.A./LL.B. (Hons.) at GITAM (Deemed to be University).

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