Differences
between Immigrant and Non-Immigrant Status
Generally,
aliens entering the United States are classified as either immigrants
or non- immigrants. Immigrants are normally defined as aliens whose
stay in the U.S. 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." Permanent resident alien status
allows the immigrant to work, study, and live permanently in the United
States. Non-immigrants are aliens who are entering the United States
for a specific duration of time. Non-immigrants are allowed to participate
in various activities (tourism, study, or work) depending on the type
of non-immigrant visa. Upon conclusion of the non-immigrant's stay,
the non-immigrant is required to leave the U.S., unless the non-immigrant
receives an extension of stay, a change to another non-immigrant status,
or an adjustment of status to become an immigrant. Because immigration
law presumes that every alien entering the United States intends to
be an immigrant, aliens applying for a non-immigrant visa at U.S. embassies
overseas may have to prove the alien does not intend to be an immigrant.
However, there are certain types of non-immigrant visas which allow
an alien to have dual intent. Dual intent visas presume the alien intends
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.
Typically,
non-immigrant visas are easier to obtain than immigrant visas and take
much less time. Non-immigrant visas can be obtained by undergoing a
change of a non-immigrant status from one category to another if the
alien is in the United States, or the alien can obtain a non-immigrant
visa from a U.S. consulate if the alien is outside the United States.
Immigrant visas can be obtained by applying to the Immigration and Naturalization
Service for Adjustment of Status from a non-immigrant to an immigrant
if the alien is already in the United States, or by applying through
a U.S. embassy if the alien is overseas.
The
Immigration and Nationality Act
Initially,
U.S. immigration was unregulated, however, some states attempted to
statutorily restrict immigration. The United States Supreme Court held
that the right to regulate immigration laws belonged to U.S. government
and determined the state immigration restrictions to be unconstitutional
and not to Congress and not to the individual states. The U.S. government
has enacted various immigration laws, but the most for reaching law
is the Immigration and Nationality Act. Since its passage in 1952, the
Immigration and Nationality Act has undergone almost yearly amendments.
Immigration law is going through dramatic changes in light of the terrorist
attacks of September 11, 2001.
Governmental
Agencies
The
State Department and the Department of Justice share jurisdiction over
U.S. immigration laws. Because U.S. embassies are part of the State
Department, an alien's application for 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 Immigration and Naturalization Service, which is a branch of the
Department of Justice. The Immigration and Naturalization Act confers
authority to the Attorney General, who in turn delegates most of its
authority to the Commissioner of the Immigration and Naturalization
Service. Other government entities which are independent of the INS
but which report to the Attorney General are include immigration judges;
the Board of Immigration Appeals, which reviews removal orders; and
the Executive Office of Immigration Review, which has administrative
charge over both immigration judges and the Board of Immigration Appeals.The
Department of Labor (DOL) has jurisdiction over certain work visa applications
for temporary and permanent workers. Several visa categories require
that the DOL certifies 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 laws aimed at protecting
the U.S. work force.
The
Role of the Immigration Attorney
Immigration
law allows an alien to be represented by counsel while appearing or
conducting business with various federal agencies. Because immigration
law is a federal law, an attorney can generally represent an alien in
any state, but that attorney may not be able to advise the alien on
other matters of state law unless that attorney is licensed to practice
law in that state. The general trend is that although an alien has the
right obtain legal counsel that right is not a constitutional right.
Therefore, an alien's failure to hire an attorney generally does not
constitute constitutional violation. There is also no requirement that
legal counsel be paid at the government's expense. Occasionally, aliens
attempt to submit their own paperwork to the various U.S. governmental
agencies. Without knowledge of the requirements of the agency, and the
potential problems submission may cause, self submitting aliens may
create substantial problems. Immigration attorneys are versed in immigration
law and legal procedures, can avoid errors and mistakes, and can often
speed up the process. Attorneys are also able to identify issues and
present the alien with possible alternatives which may be available
to the alien.
Bio
Mr.
Miley has an MBA in Finance from the University of Texas, and
is licensed to practice law in California and Nevada. Mr. Miley has
represented insurance companies, casinos and doctors, but now represents
individuals in various areas of practice, including criminal law, personal
injury, car accidents, corporate law, small business law, and immigration.
Mr. Miley can be reached at (702) 562-7826.
