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by: Allen E. Kaye, Attorney-At-Law
What is a legal immigrant? A legal immigrant is a foreign-born individual who had been admitted to reside in the United States as a lawful permanent resident (LPR). LPRs are given immigrant visas, commonly referred to as "green cards." Non-immigrants are foreign-born individuals who are permitted to enter the United States for a limited period of time, and are given only temporary (non-immigrant) visas. Examples of non- immigrants are students, tourists, temporary workers, business executives, and diplomats.
How does someone come to the U.S. as an immigrant?Through family-based immigration, a U.S. citizen or LPR can sponsor his or her close family members for permanent residence. A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), children, and brothers and sisters. 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 his or her family member.Through employment-based immigration, a U.S. employer can sponsor a foreign-born employee for permanent residence. Typically, the employer must first demonstrate to the Department of Labor that there is no qualified U.S. worker 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. In order to be admitted to the U.S. as a refugee, the person 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 opinion; or national origin. Refugees generally apply for admission to the United States in refugee camps or at designated processing sites outside their home countries. In some instances, refugees may apply for protection from within their home countries (for example, Cuba, Vietnam, former Soviet Union). If accepted as a refugee, the person is sent to the U.S. and receives assistance through the "refugee resettlement program." A person who is already in the United States and fears persecution if sent back to his or her home country may apply for asylum in the U.S. Like a refugee, an asylum applicant must prove that he or she has a "well-founded" fear of persecution based on one of the five enumerated grounds listed above. 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?By statute, Congress has placed a limit on the number of foreign-born individuals who are admitted to the United States annually as family-based or employment-based immigrants or as refugees.Family-based immigration is limited by statute to 4120,000 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 employment-based immigration 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 immigrant categories. There is no numerical cap on the number of immediate relatives (spouses, minor unmarried children and parents of U.S. citizens) admitted annually to the U.S. as immigrants. However, the number of immediate relatives are subtracted from the 4120,000 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 by statute to 140,000 persons per year. In most cases, before the Immigration and Naturalization Service (INS) 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 confirming that there are an insufficient number of U.S. workers able, qualified and willing to perform the work for which the foreign-born individual is being hired. The Department of Labor also must confirm that employment of the foreign-born individual will not adversely affect the wages and working conditions of U.S. workers. The labor certification process takes an average of 2 years to complete. 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" are divided among different regions of the world. In fiscal year 1998, 78,000 refugees were permitted to come to the U.S. as follows:
There is no limit on the number of people who can be granted asylum each year. (In FY96, less than 20,000 people were granted asylum.) Both refugees and asylees may apply to become LPRs after one year, but only 10,000 asylees are permitted to become LPRs in any fiscal year. No such limitation is imposed on refugees.
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