Understanding Immigration Law and Lawful Immigration Status in the United States

Immigration law is the legal process of allowing individuals, who are not citizens, to come to the United States. It encompasses a wide range of situations involving foreign nationals who come to the U.S. for temporary visits or with the intent to live here permanently. The process includes obtaining legal entry for temporary status, all the way to achieving U.S. Citizenship.

There are several subsets of immigration law, which primarily include Nonimmigrant Visas, Lawful Permanent Residence (Green Cards), and U.S. Citizenship. They are explained below.

Nonimmigrant Visas

A Visa is a travel document that allows non-citizens to travel to the U.S. to seek admission by U.S. Customs & Border Protection (USCBP). It is issued by U.S. Consulates, inside embassies overseas. A Visa allows individuals to obtain a nonimmigrant status, which is temporary in nature.

A person might come to the U.S. on a Visa (as a nonimmigrant) for many reasons, including to visit, work, go to school, participate in exchange programs, conduct research, invest in businesses, and create jobs.

Although some nonimmigrant classifications may lead to obtaining U.S. Lawful Permanent Residence status, the vast majority of nonimmigrant statutes do not. Most classes of nonimmigrant status anticipate persons will return to their home country after completing the approved activity in the U.S.

U.S. Lawful Permanent Residence status (“Green Card”)

A “Green Card” isthe common term for Lawful Permanent Residence status. Green Cards allow non-citizens to make the U.S. their home.

Lawful Permanent Residents can remain in the U.S. for as long as they wish. However, they must renew their Green Card every 10 years, and abide by other legal requirements to avoid being subject to deportation proceedings. 

It should be noted that a person with a Green Card does not have all the rights of a U.S. Citizen, such as they cannot register to vote or vote. Nonetheless, some people stay in the U.S. indefinitely by renewing their Green Cards every decade.

The process of obtaining U.S. Citizenship

U.S. Citizenship is obtained automatically to individuals born in the U.S. or -- in certain situations -- if a person is born outside of the country to a U.S. Citizen parent.

Aside from automatic citizenship, a person can apply to be a U.S. Citizen by going through a process called “Naturalization.”

There are many requirements to apply for Naturalization. For example, the individuals must have been a Green Card holder for at least five years, they must be at least 18 years old, be able to speak basic English, pass a U.S. civics exam, and be a person of good moral character.

There are exceptions for certain categories (such as some spouses of U.S. Citizens and members of the U.S. military) who may become eligible to apply for Naturalization after just three years of Green Card status.

Can a person can obtain U.S. Citizenship by marrying a U.S. Citizen?  

There is nothing automatic in immigration law. If a foreign national entered the U.S. with inspection (lawfully) and marries a U.S. Citizen, they must still go through the process of obtaining Green Card.

This process is called a “Marriage-based Immigrant Petition” and generally takes a long time. It requires the couple prove that their marriage is bona fide, and was not entered into to circumvent immigration laws.

The non-citizen spouse must meet other eligibility requirements to be allowed to “adjust” his or her status to U.S. Lawful Permanent Residence (Green Card) status.

If the non-citizen spouse entered the U.S. without inspection (unlawfully), or has other grounds of immigration inadmissibility, the process of obtaining a Green Card is more difficult -- but not impossible. The non-citizen spouse will likely need to return to his or her home country and be approved by the U.S. Consulate to return.

The non-citizen spouse will likely need a Waiver of his or her unlawful presence to be able to return legally to the U.S. This can be a difficult and lengthy process. In these complicated cases, it is highly recommended that an experienced immigration lawyer is hired to assist in the process to help achieve success.

Do Undocumented individuals have any legal rights in the U.S.?  

Those without lawful status in the U.S. should know that, despite being Undocumented, they still have certain rights under the U.S. Constitution. These rights include:

  • the right to remain silent;
  • the right to have an attorney to advise and defend them; and
  • the right to refuse a search without a judicial warrant.

If an Undocumented person is detained by Immigration Customs Enforcement (ICE), he or she may also have the right to fight their deportation in Immigration Court.

In Immigration Court, a person can contest their removability and, in some cases, even apply for relief and be granted Lawful Permanent Residence status by an immigration judge. In this scenario, it is critically important to contact an immigration lawyer as soon as possible to devise a legal defense going forward. 

Unfortunately, another common scenario is when an Undocumented spouse is being subject to physical abuse or extreme mental cruelty by their spouse, who is a U.S. Citizen or Lawful Permanent Resident. In these cases, there is a legal process where someone can Self-Petition to apply for a Green Card without having to rely on their abusive spouse to support the petition.  

Another situation, which is frequently discussed in the media, is in regard to young adults and children who qualify for DACA (Deferred Action for Childhood Arrivals). Although DACA is not lawful status (not a Green Card status), it provides temporary security against deportation and a temporary grant of employment authorization.

There are many more scenarios that Undocumented individuals face that can benefit from the help of an immigration lawyer.

When is an immigration lawyer needed?

It is highly recommended that anyone with immigration matters seek an experienced immigration lawyer who is a member of the American Immigration Lawyers Association (AILA), as soon as possible.

The immigration practice group at Murphy Desmond is available to discuss immigration options and devise a workable legal strategy to gain immigration status or U.S. Citizenship. We not only work with families and individuals, but we work closely with businesses, employers, and institutions of higher education on immigration matters.

Murphy Desmond’s immigration lawyers have successfully helped thousands of individuals with complicated immigration matters for over 20 years. We stay on top of changes in immigration laws, regulations, policies, and procedures, which are constantly changing.

For immigration questions or concerns, contact Murphy Desmond’s immigration group by emailing info@immigration.com or calling us at 608.270.5550. We have offices in Madison, Janesville, Appleton, and Dodgeville, Wisconsin.

Published March 25, 2021