U.S. Immigration Law
U.S. Immigration Law
U.S. visa, residency, and immigration law (“U.S. immigration law”) is notorious for its opacity, complexity, and apparent arbitrariness. In 2013, a U.S. federal court noted the “fiendish complexity” of U.S. immigration law. Akram v. Holder, 721 F.3d 853 (7th Cir. 2013). While one applicant goes through the processes without a hitch, another makes a small mistake or disregards a requirement or regulation and, at best, loses only a bit of money and time or, at worst, cannot travel to the U.S. for 3 or even 10 years.
That is why it pays to work with an Attorney-at-Law who will help you find a US visa or US residency status that fits your plans and submit an appropriate application that has the best chance of being approved.
Purpose of U.S. Immigration Law
Essentially, U.S. immigration law is concerned with two questions:
1. Who can come? Or, to put the question another way: What documents must one present to enter the U.S.?
This question is relatively easy to answer: U.S. citizens present their U.S. passport and lawful permanent residents present a valid Green Card. Otherwise, you need either a valid ESTA authorization (for visa-free entry into the U.S.) or a valid visa – unless you are an asylum seeker.
2. Who can stay? Or, asked differently, what status must one have to stay in the U.S. on a short-term or permanent basis, e.g., as a business traveler, spouse of a U.S. citizen, artist, or investor?
U.S. citizens and green card holders can remain in the U.S. permanently. All others who wish to reside legally in the U.S. generally need a valid residency authorization, in the form of an I-94 document that contains the following information:
• Status (e.g., employment visa holder), and
• authorized duration of stay.
Government Agencies Responsible for U.S. Immigration Law
Legislative authority for U.S. immigration law rests with the federal government. And there are four federal agencies that are responsible for matters related to U.S. immigration law:
• U.S. Department-of-State (“State Department”).
• U.S. Citizenship and Immigration Service (“USCIS”)
• U.S. Customs-and-Border-Protection (“CBP”)
• U.S. Immigration and Customs Enforcement (“ICE”)
U.S. Visa Categories
There are many different US visas. Which visa you need depends on whether you want to immigrate to the US or just stay there for a few months or years. There are immigrant visas for immigrants and non-immigrant visas for everyone else (e.g. employees who are sent to the US for a temporary work assignment). More information about immigrant and non-immigrant visas can be found on the following pages:
• Immigrant Visas (Link zur Unter-Unterseite Einwanderungsvisa)
• Nonimmigrant visas (Link zur Unter-Unterseite Nichteinwanderungsvisa)
The U.S. Visa and the I-94 Document
Colloquially, a US visa is equated with US residency. But,as described above, you need:
• Certain documents to ask for admission at the border (e.g., a U.S. passport, a valid visa, or an ESTA authorization for visa-free entry), as well as
• Other documents to remain in the U.S. (e.g., a green card or valid I-94 document).
Because a visa is not a residence permit but a travel document, the validity period of a visa does not tell you how long you can stay in the US. Instead, the length of stay recorded in the I-94 document is generally determinative (provided there are no status violations or significant changes in U.S. activities).
The Visa Waiver Program (ESTA)
In addition to the various U.S. visas, some tourists and business travelers can travel to the U.S. “visa-free” within the framework of the so-called “Visa Waiver Program” (also known as ESTA). The primary requirement for using the ESTA program is that one is a citizen of one of 39 countries whose citizens are generally granted visa-free entry into the US. These countries include Germany, Austria, Poland, Spain and many other EU member countries. If you meet the requirements for the Visa Waiver Program, you do not have to visit the consulate in person to apply for a B-1, B-2 visa (for tourists and business travelers). Instead, you use the Electronic System for Travel Authorization ("ESTA") to apply for ESTA approval prior to your trip. The application consists of an online application form. In addition, one must pay a fee (currently $14.00 USD). After submitting the ESTA application, you will usually receive a decision within a few minutes.
Sending Employees to the U.S.
When businesses decide to send employees to the U.S. for a business meeting or an extended period of employment, they often pay too little attention to U.S. Immigration Law. But ignoring U.S. Immigration Law can have very negative consequences. For example, U.S. immigration law uses a very broad definition of “work,” that may include the activities an employee undertakes during a business meeting. If your employee has no work authorization and instead uses ESTA to enter visa-free as a business traveler, her unauthorized work activity may be discovered during an interrogation at the U.S. border – which may result in a denial of entry and make future trips to the U.S. difficult or impossible.
Violations of U.S. immigration law can significantly limit or even preclude future travel to the U.S. But you can avoid these pitfalls by working with an Attorney-at-Law who can advise you regarding:
• Whether and when a work visa is needed,
• Which work visa is the best fit, and
• When visa-free entry as a business traveler will suffice.