Immigration Law Overview: Who Can Legally Live, Work and Travel Within the United States?

The Immigration and Nationality Act (“INA”) was originally enacted in 1952 and although it has been amended numerous times, it addresses all aspects of our immigration system, including, birthright citizenship, asylum, deportation, travel visas, and legal authorizations to live and work in the United States. The most relevant government agencies that are charged with implementing and enforcing this law are: The United States Department of Homeland Security (“DHS”), the United States Citizenship and Immigration Services (“USCIS”), Customs and Border Patrol (“CBP”), Immigration and Customs Enforcement (“ICE”), the Executive Office for Immigration Review (“EOIR”), and the United States Department of State (“DOS.”)

Due to the immense complexity of our immigration laws, it’s quite easy to misunderstand the different ways that someone is legally authorized to live, work and travel within the United States.

Here is a simple breakdown of the most common ways in which our immigration laws afford individuals these rights:

birthright citizenship

When a person is born in the United States, they are issued a birth certificate and social security number. The simple act of being born within our borders entitles that person to the full protections of our laws, without limitation or restriction. Under birthright citizenship, a person may live and work within the United States as well as travel internationally. This is the most commonly known aspect of our immigration laws.

Naturalization

For individuals who were born outside the United States, but want to become U.S. citizens, they must first qualify for Legal Permanent Resident (“LPR”) status (discussed below) and follow a lengthy application and interview process. Once LPR status is granted and maintained for a period of three years (if obtained via marriage) or five years (if obtained via other means), the individual can petition to naturalize and become a United States citizen. Once naturalized, this person possesses all the same rights as if they were born in the United States.

However, if it is revealed at a later date that naturalization was obtained by fraud or other illegal means, the United States government can revoke naturalization and place the individual into deportation proceedings, which could result in removal to their home country.

A common misconception is that once someone marries a non-citizen, that individual is automatically granted U.S. citizenship. To the contrary, the U.S. citizen spouse must file paperwork seeking LPR status for their spouse, who is then required to complete a rigorous background check, fingerprinting and interview process. If their application is granted, they must remain married and in good standing with LPR status for three years before they can petition to naturalize. Only after they complete an additional lengthy background check and application process and the naturalization petition is approved, can the spouse become a U.S. citizen.

LEGAL PERMANENT RESIDENt status

In order to apply for legal permanent resident status (i.e., to become a green card holder), an individual must fall within one of the several eligibility categories. Some of the most common categories include: family-based, employment-based, refugee or asylee status, crime victims, human trafficking victims, etc. As with any application for immigration benefits, the individual must complete background checks, fingerprinting, paperwork and an interview. Once the application is granted, an LPR is afforded many of the same rights as a U.S. citizen. They are free to live and work in the United States and travel internationally.

However, LPR status can be revoked if the green card holder commits a crime or otherwise abuses their status, subjecting the individual to deportation proceedings and possible removal to their home country.

For individuals who obtain LPR status through a marriage of less than two years, the status will be conditional for the first two years and must be petitioned to be removed before the renewal period. It is possible to completely lose LPR status if a petition is not filed before the expiration period, prompting a restart of the entire process.

EMPLOYMENT AUTHORIZATION

For individuals that are not U.S. citizens, naturalized citizens or LPRs, in order to legally work within the United States, they must qualify and apply for Employment Authorization. There are currently forty (40) different eligibility categories, which includes, asylum seekers, seasonal workers, religious workers and individuals granted Deferred Action (“DACA”). Once granted, the individual is issued an Employment Authorization Document (“EAD”).

It is important to note that Employment Authorization is always accompanied with a legal immigration status/visa. There would not be an instance where someone is authorized to work in the United States, but not authorized to be here.

IMMIGRANT / NON-IMMIGRANT VISAS

For individuals traveling to the United States for a lawful purpose, whether to visit as a tourist, marry their fiancé, or start a new job, they must first obtain a visa in order to be granted lawful entry upon their arrival. Visas are simply the legal authorization to enter and remain in the United States for the period of time specified on the visa document.

Immigrant visas are for individuals who intend to live and remain in the United States permanently, while non-immigrant visas are common for tourists, temporary workers and students, etc. Once issued, the individual is authorized to enter the U.S. legally and when coupled with an immigration status, they might also be able to live and work within the United States.

GENERALLY SPEAKING, within each of these above topics, there are countless nuances and complications. Not everyone is eligible for an immigration benefit that allows them to live and/or work in the United States. Regardless, a conversation with an experienced immigration attorney is the first step in navigating the complexities of our immigration laws.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.