Immigrant And Non-immigrant Status
Immigrant/Non-Immigrant Status, Government Agencies Involved, and the Role of the Immigration Attorney.
Distinguishing Immigrant from Non-Immigrant Status
Aliens entering (or who wish to enter) the United States are generally classified as either immigrants or non-immigrants. Immigrants are aliens whose stay in the U.S. normally provides them with time credit, after which they can apply to become U.S. citizens. Immigrants are also granted the status of "permanent resident aliens". This status allows them to work, study, and otherwise live permanently in the United States.
Non-immigrants, on the other hand, are aliens who are entering the United States for a specific duration of time and for a specific purpose. They are allowed to participate in various activities, such as tourism, study, or work, depending on the types of their non-immigrant visas. Upon conclusion of their stay, they are required to leave the U.S., unless they obtain an extension of their stay, a change to another non-immigrant status, or adjust their status to that of an immigrant. Immigration law presumes that every alien entering the United States is an intended immigrant, unless proven otherwise. Therefore, aliens applying for a non-immigrant visa at U.S. embassies overseas may have to prove that they are not intending immigrants. There are, however, certain types of non-immigrant visas which allow an alien to have dual intent.; i.e., an intent to come temporarily pursuant to the terms of the non-immigrant visas, while at the same time having a long-term intent to immigrate into the United States.
Non-immigrant visas are typically easier to obtain than immigrant visas and take much less time. They can be obtained at a U.S. consulate overseas, or may be obtained while the alien is already in the United States by applying to change status from one non-immigrant status to another non-immigrant status. Immigrant visas, as well, can be obtained either by applying overseas through a U.S. embassy, or, if the alien is already in the United States, by applying to the United States Citizenship and Immigration Services (USCIS) for Adjustment of Status from a non-immigrant to an immigrant.
The Government Agencies Involved
Immigration law jurisdiction is shared between the State Department and the Department of Homeland Security. Because U.S. embassies are part of the State Department, an alien's application for a visa at an embassy outside the U.S. is within the State Department's jurisdiction. When an alien is in the United States, his immigration applications are adjudicated by the U.S. Citizenship and Immigration Service, which is a branch of the Department of Homeland Security.
Another agency that has jurisdiction in certain work visa applications is the Department of Labor. There are several non-immigrant and immigrant visas for temporary and permanent workers who must obtain what would be equivalent to an approval from the Department of Labor. Several visa categories require either that the Department of Labor certifies that there are no U.S. workers able and willing to perform the work intended to be performed by the alien or that the employer petitioning for the worker has complied with certain requirements of the law aimed at protecting the U.S. work force.
The Role of the Immigration Attorney
Immigration law, like most other types of law, preserves the right of the alien to be represented by counsel while appearing or conducting business with various federal agencies. Because immigration law is federal law, an attorney can generally represent an alien in any state of the Union, although such an attorney may not be able to advise the alien on other matters of state law. There are no substantive differences in immigration law based on where an alien resides or intends to reside (with a few exceptions).
An attorney can also be an integral part of the visa process. Often, individuals seeking to enter the U.S. attempt to submit their own paperwork to the appropriate agency. Without knowledge of the requirements of the agency, and the potential problems submission may cause, their efforts may create substantial problems. For example, without knowing the grounds of inadmissibility, an individual could inadequately explain an issue in their application which may jeopardize not only their immediate application, but also future applications.
Also, an attorney is able to supply an individual with alternative visas to which the alien may be entitled. Often, an individual is eligible for more than one visa, or is eligible to apply in different ways. An attorney can best counsel the corporation or alien as to the most cost effective application with the greatest likelihood of success.
