Immigration often proves a controversial topic in the United States, especially among those who wrongly assume they understand how the United States immigration system works. Immigration law is complex, highly categorical and, with some exceptions, numerically limited.
This article examines how the United States immigration system works in broad strokes. We explore the government agency noncitizens work with most closely, visa categories and subcategories, and the steps to getting a visa.
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Published on September 25, 2024 · 9 min read
Key takeaways
Non-U.S. citizens may obtain immigrant or nonimmigrant visas.
Immigrant visas allow noncitizens to live in the U.S. permanently. Nonimmigrant visas are temporary, so holders can’t stay in the country long-term.
The only way noncitizens can legally remain in the U.S. for longer is if they qualify for an immigrant visa or humanitarian protection.
What is USCIS?
United States Citizenship and Immigration Services (USCIS) is the government agency primarily responsible for issuing U.S. visas. When you request more than the briefest stay, you typically go through USCIS.
Working with USCIS
USCIS is currently moving to an online system. To provide documents and track your case status, you may create an online myUSCIS account at myaccount.uscis.gov. Some applications may be submitted online during this transition period, while others must be submitted on paper through the mail to addresses that vary by visa type and your location. Even if you submit your application on paper, you may use the online USCIS case tracker to check your application’s current status.
USCIS issues visas to noncitizens who qualify for limited categories, unless no visa is available according to the Visa Bulletin or they’re “inadmissible”. Generally, noncitizens become inadmissible by violating criminal or immigration law or presenting a risk to the health or safety of people in the U.S.
USCIS typically requests all applicants age 14 and older provide their fingerprints and performs a background check while processing visa applications. This check examines the applicant’s entire history because some acts make an individual inadmissible for life.
Pro-tip:
Navigating what makes a noncitizen inadmissible and how the law applies in individual cases requires carefully interpreting the Immigration and Nationality Act (INA). Depending on the grounds, you may qualify for a waiver of inadmissibility.
USCIS issues visas to noncitizens who qualify for limited categories, unless no visa is available according to the Visa Bulletin or they’re “inadmissible”. Generally, noncitizens become inadmissible by violating criminal or immigration law or presenting a risk to the health or safety of people in the U.S.
USCIS typically requests all applicants age 14 and older provide their fingerprints and performs a background check while processing visa applications. This check examines the applicant’s entire history because some acts make an individual inadmissible for life.
Pro-tip:
Navigating what makes a noncitizen inadmissible and how the law applies in individual cases requires carefully interpreting the Immigration and Nationality Act (INA). Depending on the grounds, you may qualify for a waiver of inadmissibility.
Case processing
USCIS processes applications at different speeds depending on the visa type and whether issuance quotas have been met for the year. You may check specific case processing times online for more information. If that timeline is too slow, you may file an expedite request based on:
Emergencies and urgent humanitarian concerns
Severe financial loss the applicant did not cause
Government-identified national interest or national security issues
Certain visas also qualify for premium processing—at a cost currently ranging between $1,685 and $2,805, depending on the visa type.
Pro-tip:
If you apply through the mail, ensure you send your documents to the correct USCIS service center. USCIS identifies addresses on each form page and provides tips to guide you through filing by mail. USCIS may send wrongly addressed applications back to you rather than forwarding them, potentially costing significant time.
Pro-tip:
If you apply through the mail, ensure you send your documents to the correct USCIS service center. USCIS identifies addresses on each form page and provides tips to guide you through filing by mail. USCIS may send wrongly addressed applications back to you rather than forwarding them, potentially costing significant time.
Immigrant visas
If you’re wondering how to get a green card, immigrant visas are probably—though not exclusively—the answer. “Immigrant visa” is often used synonymously with “green card” and lawful permanent resident (LPR) status.
The U.S. offers family-based and employment-based immigrant visas along with a handful of other options to pursue a green card. Most immigrant visas require a sponsor and are limited in number. No country may account for more than 7 percent of the immigrant visas issued per year.
Let’s dive into the different types of immigrant visas.
The U.S. offers family-based and employment-based immigrant visas along with a handful of other options to pursue a green card. Most immigrant visas require a sponsor and are limited in number. No country may account for more than 7 percent of the immigrant visas issued per year.
Let’s dive into the different types of immigrant visas.
Family visas
Most family-based visas are immediate relative (IR) or family preference visas. IR visas are exempt from yearly limits, while the government only issues up to 226,000 family preference visas. If any visas go unused, they’re reallocated to other preference levels.
Employment visas
Employment-based visas are subject to a yearly limit of 140,000, plus any unused family preference visas. Many employment-based immigrant visas require an employer sponsor, a job offer and labor certification—confirmation that U.S. workers aren’t available to fill the job—from the U.S. Department of Labor (DOL).
The eclectic category of special immigrants includes:
Religious workers
Certain Afghan and Iraqi nationals
Special Immigrant Juveniles (SIJ)
Members of the U.S. armed forces
Criminal informants
Certain broadcasters, employees of the U.S. government abroad and retired employees or officers of international organizations
Pro-tip:
Several EB-4 visa types have little or nothing to do with employment. These visas happen to be included in INA provisions on employment, but don’t get caught up on the category. If involving an employer doesn’t make sense, you don’t need one, even if you’re applying for an “employment-based” visa.
Several EB-4 visa types have little or nothing to do with employment. These visas happen to be included in INA provisions on employment, but don’t get caught up on the category. If involving an employer doesn’t make sense, you don’t need one, even if you’re applying for an “employment-based” visa.
Other immigrant visas
You may also obtain permanent residence through:
Asylum and refugee status
The Diversity Immigrant Visa Program
Human trafficking and crime victim visas
The Cuban Adjustment Act
Steps in the immigrant visa process
Except for non-NIW EB-2 and EB-3 visas, you begin the immigrant visa path by filing an “immigrant petition” with USCIS. As detailed below, the next steps diverge depending on whether the noncitizen is in the U.S. or abroad.
First stage
If necessary, employer sponsor applies for labor certification.
Sponsor submits an immigrant visa petition to USCIS. If the visa is currently available and the noncitizen applicant is in the U.S., they may concurrently file I-485, Application to Register Permanent Residence or Adjust Status, with the petition.
USCIS sends an I-797 Notice of Action entitled “Receipt Notice” with your priority date and receipt number. As it processes the application, it may ask clarifying questions through Requests for Evidence (RFEs). Then USCIS decides whether to grant or deny the petition.
Second stage
For those abroad: If USCIS approves the petition, the noncitizen beneficiary submits Form DS-260, Immigrant Visa Electronic Application, and supporting documents through the Consular Electronic Application Center (CEAC) to request a green card through consular processing.
For those in the U.S.: If the beneficiary hasn’t already, they submit Form I-485 and supporting documents to USCIS to request a green card.
Third stage
Beneficiary provides additional documents and attends a visa interview at a consulate or USCIS office.
After the interview, USCIS or the U.S. consulate decides whether to grant the visa request. If yes, the agency issues the green card.
If the beneficiary is abroad, they travel to the U.S. and request admission.
Pro-tip:
These processes vary for many of the more unique programs. For example, the SIJ visa requires state juvenile system involvement before you file with USCIS, and the Diversity Visa program requires a lottery entry. Ensure you follow the specific requirements carefully.
These processes vary for many of the more unique programs. For example, the SIJ visa requires state juvenile system involvement before you file with USCIS, and the Diversity Visa program requires a lottery entry. Ensure you follow the specific requirements carefully.
Nonimmigrant visas
Temporary, nonimmigrant visas authorize noncitizens to come to the U.S. for a limited time and a limited purpose. With limited exceptions, the nonimmigrant visa applicant has an affirmative obligation to prove that they intend to depart the U.S. once the visa expires.
Most nonimmigrant visas fall into three general categories that don’t lead to permanent residence:
Most nonimmigrant visas fall into three general categories that don’t lead to permanent residence:
Student visas
Temporary employment visas
Travel visas
The primary exception is the K-1 fiance visa, which allows a U.S. citizen to sponsor their foreign fiance to travel to the U.S. to get married.
Pro-tip:
Some nonimmigrant visas are “multiple-entry” visas, while others are “single-entry” visas. A noncitizen on a multiple-entry visa may come and go from the U.S. until it expires, while a noncitizen on a single-entry visa may not return after departing.
Student visas
Student visas include:
F visas: Most traditional students
M visas: Vocational students
J visas: Exchange visitor programs
Temporary employment visas
U.S. temporary employment visas include:
H-1B: Specialty occupations
H-2A: Temporary, seasonal agricultural work
H-2B: Temporary, seasonal non-agricultural work
J: Exchange visitor work programs
L: Intracompany transferees
O: Individuals with extraordinary ability or achievement
R: Temporary religious workers
TN: Canadian or Mexican professionals
H-2A and H-2B visas require temporary labor certification, and H-1B visas require a Labor Condition Application (LCA) from the DOL.
Travel visas
You may travel to the U.S. for other temporary reasons through the following visas:
B-1/B-2: Short-term business/tourism
C: Transit the U.S.
D: Air or sea travel-based crewmembers
Certain foreign nationals may qualify for the Visa Waiver Program (VWP) as well.
Steps in the nonimmigrant visa process
The steps in the nonimmigrant visa application process vary by agency:
Temporary employment visas (except TNs): USCIS
Student visas: SEVP
Travel and TN visas: State Department
Through USCIS, the steps include:
Sponsor requests labor certification from the DOL (if necessary).
Sponsor submits nonimmigrant visa petition to USCIS.
(if abroad) Worker completes DS-160, Online Nonimmigrant Visa Application and requests a visa from their nearest U.S. consulate.
(if in U.S.) Worker submits Form I-539, Application to Extend/Change Nonimmigrant Status.
Pro-tip:
Temporary employment visa petitions may include the names of sponsored workers, but they may be submitted without names. In the latter case, the USCIS approval may be for a certain number of workers. You may fill in the names at the consulate, which tracks how many visas it has approved to ensure it doesn’t send too many.
Through SEVP, the steps include:
Temporary employment visa petitions may include the names of sponsored workers, but they may be submitted without names. In the latter case, the USCIS approval may be for a certain number of workers. You may fill in the names at the consulate, which tracks how many visas it has approved to ensure it doesn’t send too many.
Through SEVP, the steps include:
Applicant applies for admission to a school participating in a student visa or exchange visitor program.
The school issues an I-20 to the applicant.
Applicant submits DS-160 and supporting documents to their consulate.
Applicant attends visa interview.
Applicant travels to the U.S.
Finally, through the State Department, the steps include:
Applicant submits Form DS-160 and supporting documents through CEAC.
Applicant attends a visa interview, if necessary.
Applicant may travel to the U.S..
Miscellaneous statuses
Several programs, mostly humanitarian-based, allow noncitizens to remain in the U.S. without a visa, like:
Temporary Protected Status (TPS)
Humanitarian Parole
Deferred Action for Childhood Arrivals (DACA)
Deferred Enforced Departure (DED)
How a lawyer can help
If this sounds like a lot of information, it is. Unfortunately, we could say much more about almost everything touched on above.
An immigration lawyer may help you better understand how the United States immigration system works generally and how it may work for you. Your attorney can work with you and USCIS or the agency responsible for your case. They can help you prepare thorough applications, stay on top of deadlines, respond to questions and prepare for your interview.
An immigration lawyer may help you better understand how the United States immigration system works generally and how it may work for you. Your attorney can work with you and USCIS or the agency responsible for your case. They can help you prepare thorough applications, stay on top of deadlines, respond to questions and prepare for your interview.
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