By Adrienne J. Vaughan
I’ve written this article to benefit those lawyers that do not practice U.S. Immigration law, but may find that it overlaps with their practice. In having worked in the field for over a decade, I’ve had many other areas of law overlap my practice and I’ve had to speak to family lawyers about divorces, tax attorneys about late filings, corporate lawyers about entity creation, etc. In so doing, I’ve often wished for a basic guide on those areas so that I could at least “speak the same language” and therefore better assist my clients. This is what I have attempted to do for you for immigration law. This article is far from comprehensive, but endeavors to give you a basic overview of the agencies that administer immigration law, some key definitions, and some of the key processes you may see. It also may help you guide your clients to some of the key government resources that they may use to obtain free information about their immigration case. And ultimately, the article will let you know how to find a good immigration lawyer if your clients need it.
The US Immigration Law system is codified at 8 U.S.C., and is commonly referred to as the US Immigration and Nationality Act (INA). The implementing regulations are found at 8 C.F.R. Both of these main bodies of law are now widely available online, with free access directly from the US Immigration Service’s website. Off of this link you can also access several other useful related government sources.
The government entity that is most commonly associated with immigration in the US is called US Citizenship and Immigration Services (USCIS). It became part of the Department of Homeland Security (DHS) shortly after that agency’s creation in 2003. Formerly it was called, and is still commonly referred to as “INS”. This agency is in charge of the adjudication of benefits in the US. These include the granting of green cards, work permits, and US citizenship.
There are, however, several other agencies (some part of DHS, and some not), that play a role in US Immigration. Individuals that are being deported from the US (now termed “removal”) are prosecuted by an agency called U.S. immigration and Customs Enforcement (ICE) and they appear before a special administrative court that is called the Executive Office for Immigration Review (EOIR). If they need to obtain a visa to enter the US, then they must go to a US consulate or Embassy, and these are under the US Department of State (DOS) jurisdiction. Likewise, when they enter the US at an international airport, they will have to be screened by a Customs and Border Protection (CBP) official. If they file for an employment based benefit in the US they will likely have to follow procedures set out by the US Department of Labor (DOL). These are just a few of the many agencies that can have overlapping jurisdiction over a foreign national during their stay in the U.S.
In the past several years, the agencies that administer immigration laws have tried to become much more “user friendly” to immigrants and employers. In many ways this has succeeded. The USCIS website is now an excellent starting point to understand US immigration law in layman’s terms. It also has some excellent tracking options to check the status of an application filed, or to gauge processing timeframes.  For some types of benefits, especially US citizenship “naturalization” applications, there are very comprehensive materials that go through the process step by step with checklists and best practices guides. As an immigration attorney I’m conflicted on this. Sometimes I think it is wonderful, and I often use the resources myself and encourage my clients to track their cases there. I even put several of these “self-help” links accessible from my own private firm website. However, I’m concerned that complex and risky processes are sometimes made to seem too easy, and that clients who should speak to an immigration attorney first about the risks, may be lulled into not doing so. As a fellow attorney, you may wish to recommend these resources with that caveat.
Another advancement of the US Immigration Service has been a toll-free National Customer Service number that individuals can call to ask questions. It is free and easy, so knowing what I know about the law and timelines; it is usually worth the call. Over the years though, I have had many clients tell me about the advice that they have received on this phone line and it has been absolutely wrong. Again, this creates a conflict for me. I think many of these people that call may follow bad advice or not pursue other remedies in reliance on this call, instead of seeing a lawyer. However, I suppose that sometimes the phone line is better than nothing, and if many of these individuals were not going to hire a lawyer anyways, maybe they sometimes get good advice. Overall, however, the folks at NCSC sometimes have a near impossible job sometimes to understand very complicated situations, often described in non-native English, and to advise. I do not doubt that when incomplete information is given, incomplete advice is given, and this is a huge risk for anything complicated. Thus again, it can be a wonderful tool sometimes, but proper caveats should always be given.
A better answer for some individuals that may not otherwise seek out an immigration attorney would be to go in person to a local “district” immigration office and obtain information. In order to make such an inquiry, however, most district offices require advance appointments to be made online. In the old days when I started practicing, foreign nationals (and their legal representatives) would have to line up at the district offices when they opened at about 7am and it would be a “first come first heard” system. However, of course in larger districts many folks would be turned away if it was a busy day, and folks would end up waiting for hours in crowded information rooms. I think the current appointment system is better, by far, but sometimes you can’t get an appointment when you really want or need one, and this can be a real hassle in many jurisdictions. Please note though, for your clients, if they are not in a legal status, or their status is indeterminate, I would not advise that they go into an immigration office, appointment or not. The national customer service line could be an option, but by far the best advice is to go to an immigration attorney.
My own practice does not involve asylum or removal (deportation) defense. Thus, I cannot go into great detail about those procedures for you. However, there is one very useful phone number that I have had occasion to use often in my practice that you may also find useful. This is the Immigration Court (EOIR)’s automated phone line at 1-800-898-7180. If you have a client that has been before an immigration judge, or had a benefits application denied, and their status is unknown, it can be wise to call to get a general idea if they are in removal proceedings, or have been deported in their absence. To use the number the foreign national must know their alien registration (“A”) number which appears on many immigration documents. Of course, if there is any uncertainty, you should have the person call a US immigration lawyer.
Now let me give you a very rough overview of our federal immigration system. Most foreign nationals who come to the US from overseas will have gone to a US consulate or embassy to obtain a “visa stamp” in their passport. This visa stamp (which is essentially a travel document) will be given for a certain number of years. For instance, a visitor from Thailand will likely obtain a visitor’s visa (B2) which is good for ten years. This means that they have been pre-approved to travel to the US for that purpose (as a visitor) over the next decade. On the face of the visa stamp is designated a letter which specifies what type of visa it is, and thereby what actions it entitles the foreign national in the US. For instance, an individual with a B2 visitor for pleasure can visit, but may not work in the US. In contrast, an individual that is admitted with a work visa designation like H-1B, must work in order to preserve their status and right to remain.
When a person enters the US, they are given a certain amount of time to stay on that particular visit (by a CBP officer at the airport or land crossing). It is a very important thing to know that the amount of time they are granted on each visit is often far less than the validity of the visa stamp. For instance, a visitor from Thailand, even one in possession of a ten year visitor’s visa, will only be admitted usually for up to 6 months. This expiration date of each admission is sometimes stamped in their passport, or is also designated on a little white card called an “I-94 card”. [Starting in spring 2013, as a cost cutting measure, individuals are not being given an I-94 card when they enter the US, but are instead being told to go to a government (CBP) website and to download their card.] As with everything, there are exceptions. Some countries are allowed to have their nationals come to the US without a visitor’s visa because their fraud/overstay rates are so low. These folks come on a program aptly named “visa waiver”. Additionally, Canadians are “visa exempt” in most categories and do not need a visa. If in doubt, I would always suggest that you call an immigration attorney for an opinion because there are serious consequences to overstaying one’s status.
The plethora of immigration designations available starts with A and runs through almost every letter of the alphabet. Within each letter there can also be important differences, such that an H-1B is a professional worker that can work and remain in the US for up to 6 years, whereas an H-2B is a seasonal worker, and an H-3 is a trainee.  There are also several statuses which are available only to nationals of certain countries (TN for Canadians and Mexicans only; E3 for Australians only, etc.). Some statuses allow for work permission, while some do not. Additionally, of those that allow for work permission, many are employer-specific, so that foreign nationals are allowed to enter for a specific job opportunity and cannot switch employers without filing for such change in advance. For a general overview, I think the USCIS website does a good job.
Most foreign nationals I work with came to the US initially as “nonimmigrants” (often as a student (F-1) or temporary worker (H-1B)). After a period of time, they may want to change their status (such as a graduating student that wants to work) or change employers. There are complicated rules and the timing can be very important in order to ensure the individual legally remains in status. After a certain amount of time, many foreign nationals in the US have become acclimated and wish to remain. Those individuals will therefore need to start a process to obtain Lawful Permanent Resident (LPR) status. This is often nicknamed a “green card” because of the color of the card designating the status. It’s quite misleading though because there are many versions of the “green card” and many of them are not green. The USCIS website has some samples of what a green card should look like, if in doubt.
There are several ways to apply for a green card. This includes through close family, an employer, through asylum, or even as the result of a program termed “the diversity lottery” which runs annually and allocates a significant number of green cards to nationals of countries with low US immigration rates. There are also limited ways for a foreign national to sponsor themselves, if they have some extraordinary abilities, their work is deemed in the US national interest, or through an investment. Most individuals you meet will probably be in the more traditional family or employer routes though.
Our immigration system currently has a “backlog” in many categories, both for those applying through their employer, as well as those sponsored by family. The Department of State monthly puts out a “visa bulletin” which specifies how long the waitlist is and thus which individuals are now “current” and able to be granted a green card. To additionally compound this confusing system, in most categories, each country is only allowed a certain number of green cards for their nationals each year. Thus, some populous countries like India and China, have longer waiting lists than less populous countries which have less green card applicants in the US. Based on this, we find that nationals of India with an advanced degree applying for an employment based green card can have a ten year backlog, whereas nationals of Ireland with the same degree and job opportunity have no backlog. Needless to say, this system is the bane of immigration lawyers’ existence, and in the employment based categories, clients from “wait list countries” try to push into “available” categories, instead of what the immigration lawyer advises is the most suitable “fit”.
Family-based cases face similar backlogs in many categories. Our immigration system allocates family based green cards according to what you might say is “degrees of separation” from the sponsor. In this way, some family members are considered “immediate relatives” while others are allocated into one of four remaining categories according to the degree of separation to the individual that files the petition. Thus, a spouse of a US citizen is an “immediate relative” while a brother of a US citizen is a “fourth preference (F4)” category immigrant. Importantly, immediate relatives have no waiting list, whereas siblings of US citizens in the F4 category currently may have to wait about a decade.
Many individuals that ultimately obtain a green card based on family or employment or another method, will ultimately go on to become US citizens. This requires, for most individuals, waiting for five years after obtaining the green card, and then filing a separate application with fee, and passing a test of US civics and English language reading and writing. There are numerous exceptions.
Hopefully now you have some idea of our current immigration system in the US. What does the future hold? As anyone who watches the news knows, a huge overhaul of the immigration system is being debated, and what the final version will look like is anyone’s guess still. It may be far different than what we have today. However, what seems inevitable is the need for change both to the existing legal nonimmigrant and immigrant system I have described above (especially in terms of the backlogs), but possibly most importantly for the millions of individuals who are here without a legal status. At present, most of those individuals are barred from applying for any type of legal work permits or status.
In the coming months, a good resource to check out to follow immigration news is the American Immigration Lawyers Association (AILA) website at www.aila.org. Although much of the content is restricted to members, there still is very valuable content which can be accessed by nonmembers. I expect that AILA will make much of their legislative information available to nonmembers.
I’d also like to mention the AILA website as an excellent resource to find an immigration lawyer. Those of us who are members of AILA pay dues to this organization in exchange for an amazing wealth of news, legislative and legal updates. Here in New England we have a local chapter which is amazing and holds monthly meetings and sends out weekly news blast emails to keep the membership aware of any changes. I am one of about 600 members in New England, so there are certainly a wide variety of types of firms and locations for our members. Our members can be searched from the AILA website by area of expertise, or location of their firm, among others. I would heartily advise that if you have a client that has an immigration issue, that you consider referring them to this website to find someone that practices in their specialty. Let me just add that the world of immigration lawyers, generally falls along two lines. Some lawyers specialize in court related practice, while others specialize in non-court practice. Those that mainly do “business immigration” or visas for workers, often do not do court work. Many lawyers that do court work will also do family work, and many that do employment work will also do family work. But your client should always be advised to speak to an immigration lawyer and make sure that they are competent in the type of matter your client has, before proceeding. Most good immigration lawyers I know refer out many cases, because becoming a specialist in all-things-immigration is just too large a specialty.
The last thing I would like to add is that after practicing immigration law for over a decade, I can honestly tell you that my colleagues in the profession are wonderful people overall. Very few of us went into immigration law because we love money. Most I know went into the field because we have some overriding passion for our country and the ideals of inclusion it represents. Therefore, if you have an issue with a client and you need immigration advice, find a good one on the AILA website and just pick up the phone. I think you would be surprised how many of us will pick up the phone and be happy to brainstorm the issue with you for a few minutes to make sure your client’s immigration rights are protected.
Focusing exclusively in the area of United States immigration law, Adrienne Vaughan founded the Law Office of Adrienne J. Vaughan in April 2012. Based in Boston, Massachusetts, the firm provides legal services for corporations of all sizes on a broad range of nonimmigrant (temporary) and immigrant (permanent) visa options for their valued employees. Services also include advice for individuals in employment, marriage and family immigration matters. Attorney Vaughan is licensed to practice law in the Commonwealth of Massachusetts and the United States District Court. Prior to starting her own firm, she worked for a decade at a prominent downtown boutique immigration firm. She is active in the American Immigration Lawyers Association, having edited the New England conference coursebook for two years, and moderated an advanced panel at their regional conference in 2012. She will be a discussion leader at the national AILA conference in June 2013.
 See the “How do I Guides” as an example: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=7cd99ddf801b3210VgnVCM100000b92ca60aRCRD&vgnextchannel=7cd99ddf801b3210VgnVCM100000b92ca60aRCRD
 See INA Section 212(a)(9)(B) discussing “unlawful presence” and bars to re-entry.