Commentary

US Immigration Laws
By James E. Root

Through our legal immigration system, U.S. citizen and lawful permanent residents united with close family members and U.S. employers gain access to the specific skills necessary to strengthen the U.S. economy and remain competitive in the global economy. Through legal immigration, the U.S. also fulfills its longstanding tradition of protecting a fraction of the world’s refugees. Legal immigration is good for American citizens and immigrants alike.
How does someone come to the U.S. as an immigrant?
Through family-based immigration, a U.S. citizen or lawful permanent resident (LPR) can sponsor his or her close family members for permanent residence. A U.S. citizen can sponsor his or her spouse, parent (if sponsor is over 21), children, and brothers and sisters. An LPR can sponsor his or her spouse, minor children, and adult unmarried children. As a result of recent changes in the law, all citizens or LPRs wishing to petition for a family member must have an income at least 125% of the federal poverty level and sign a legally enforceable affidavit to support their family member.
Through employment-based immigration, a U.S. employer can sponsor almost any foreign-born employee for permanent residence. Typically, the employer must first demonstrate to the Department of Labor that there are no qualified U.S. workers available for the job for which an immigrant visa is being sought.
As a refugee or asylee, a person may gain permanent residence in the U.S. A person located outside the United States who seeks protection in the U.S. on the grounds that he or she faces persecution in his or her homeland can enter this country as a refugee.
A person who is already in the U.S. and fears persecution if sent back to his or her home country may apply for asylum in the U.S. An asylum applicant must prove that he or she has a “well-founded” fear of persecution on the basis of at least one of the following internationally recognized grounds: race; religion; membership in a social group; political group; or national origin. Once granted asylum, the person is called an “asylee”. In most cases, an individual must apply for asylum within one year of arriving in the U.S. Refugees and asylees may apply for permanent residence after one year in the U.S.
How many immigrants are admitted to the United States every year?
Congress has placed a limit on the number of foreign-born individual who are admitted to the U.S. annually as family-based or employment-based immigrants or as refugees.
Family-based immigration is limited to 480,000 persons per year. Family-based immigration is governed by a formula that imposes a cap on every family-based immigration category, with the exception of “immediate relatives” (spouses, minor unmarried children, and parents of U.S. citizens). The formula allows unused employment-based immigrant visas in one year to be dedicated to family-based immigration the following year, and unused family-based immigration visas in one year to be added to the cap the next year. This formula means that there are slight variations from year to year in family-based immigration. Because of the numerical cap, there are long waiting periods to obtain a visa in most of the family-based categories.
There is no numerical cap on the number of “immediate relatives” admitted annually to the U.S. as immigrants. However, the number of immediate relatives is subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year (with a floor of 226,000).
Employment-based immigration is limited to 140,000 persons per year. In most cases, before the U.S. Citizenship and Immigration Service (USCIS) will issue an employment-based immigrant visa to a foreign-born individual, the employer first must obtain a “labor certification” from the U.S. Department of Labor (DOL) confirming that there are no U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. The DOL also must confirm that employment of the foreign-born individual will not adversely affect the wages and working conditions of U.S. workers. Under the PERM regulations, which took effect on March 28, 2005, the DOL is processing new “labor certification” applications within just 45-60 days.
The United States accepts only a limited number of refugees from around the world each year. This number is determined every year by the President in consultation with Congress. The total number of annual “refugee slots” is divided among different regions of the world. For the fiscal year 2005, the number of refugee admissions was set at 70,000.
There is no limit on the number of people who can be granted asylum each year. Both refugees and asylees may apply to become Legal Permanent Residents after one year, but only 10,000 asylees are permitted to become Legal Permanent Residents in any fiscal year. No such limitation is imposed on refugees.
For more information and a “free” initial legal consultation please contact Immigration Attorney James E. Root at 1(888) ROOT-LAW or visit his website at www.RootLaw.com. Mr. James E. Root heads an Exclusive Immigration Law practice with two offices in Southern California.