An Overview of U.S. Immigration

A. Nonimmigrants vs. Immigrants:

When determining your strategy to enter the U.S. you must determine whether you wish to seek admission as a nonimmigrant or as an immigrant.  Individuals wishing to enter the United States for a temporary period of time and for a limited purpose are considered nonimmigrants . Those who wish to remain in the U.S. permanently and intent to treat the U.S. as their primary physical domicile are considered immigrants.

1. Nonimmigrants:

There are a variety of visas available for nonimmigrants. Each category has set of criteria that must be met at the Consular level, if a Visa is required for the applicant’s nationality and again when undergoing inspection and admission by the U.S. Customs and Border Protection. Receiving a visa by itself does not guarantee admission into the U.S.

Nonimmigrants as a general rule cannot have ‘immigrant intent’. They must intend to enter for a temporary period only and must not have the intention of abandoning their foreign residence. They must have and ‘actual dwelling place in fact’ abroad and they cannot have a preconceived intent to enter for a purpose different from that expressed at the time of obtaining the visa.

There are some exceptions and in some cases, an ‘alien’ can be admitted as a nonimmigrant and then apply for an immigrant category, which will confer Lawful Permanent Residency in the U.S. For example, L-1A Intracompany Transferees can file for an Immigrant Visa or Status and Adjustment of Status if all the factual and legal conditions are met. In other cases, an alien can change from one nonimmigrant category to another.

Certain Rules For Canadian Citizens:

Canadians are normally visa exempt except for the E  (Treaty Trader and Treaty Investor) and K (Fiancé) categories. Thus Canadians do not have to apply for a visa at a U.S. Consulate abroad . They present their applications at any Class A designated Port of Entry and if approved, they will be  admitted under the appropriate status. For TN, H and L status, NAFTA has created special rules regarding the application process. The also have the option of applying for their nonimmigrant status by applying directly with the USCIS and thereafter seeking admission into the U.S. documenting their approved petition.

2. Immigrants:

Individuals applying for immigrant visas i.e. for Lawful Permanent Residency, do so under the following based petitions: Family Immigration; Employment Based Immigration, Asylum, Diversity Lottery and certain other special categories.
Family Immigration Is Divided Into the Following Preferences:
Immediate Relatives of United States Citizens: This category, unlike other categories, have no annual limit and applies to spouses of U.S. citizens; unmarried children of U.S. citizens under 21 years old and parents of U.S. citizens provided that the citizen-child is at least 21 years old.
1st: Unmarried Sons and Daughters of United States citizens.
2A: Spouses and Children (under 21) of Permanent Residents.
2B: Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents.
3rd: Married Sons and Daughters of United States citizens.
4th: Brothers and Sisters of Adult (over age 18) United States citizens.
Employment Based Immigration Is Divided Into the Following Preferences:
1st Priority Workers: Outstanding Researchers and Intra-company transfers, and Extraordinary Ability.
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (jobs requiring at least two years of training or experience).
4th: Certain Special Immigrants including religious workers.
5th: Employment Creation.
All immigrant visas are subject to numerical limitation divided between Family Sponsored Immigration; Employment-Based Immigration and Diversity Immigration.
If you qualify as an Immediate Relative  beneficiary (spouse, parent or child (under 21) of a U.S. citizen) then your petition is automatically current subject to wait times predicated by consular processing or adjustment of status.

If your visa category is one of the family preference or employment categories, there are legal limits on the numbers of visas that can be issued in each category and in most categories, the demand is higher than those limits. In these categories, waiting lists have been established based on your priority date, which is the date your sponsor filed your petition with the USCIS. Cutoff dates established by the Visa Office determine when your petition will be reached for processing. Your petition can only become current and thus ready for further processing when the cutoff date in your visa category has advanced up to your priority date. The Visa Bulletin page which indicates visa wait times is updated monthly by the U.S. State Department.