Immigration law in the United States is governed at the federal level by the Immigration and Nationality Act, (INA), created in 1952 and amended numerous times, which remains the main source of law. The Act is also set out in the US Code, a collection of all laws of the United States, under Title 8.

More

Immigration law in the United States is governed at the federal level by the Immigration and Nationality Act, (INA), created in 1952 and amended numerous times, which remains the main source of law. The Act is also set out in the US Code, a collection of all laws of the United States, under Title 8.

Section 201(a) of the INA sets out the main groups of people who may be issued with immigrant visas or otherwise obtain permanent residence in the US. These groups are: family sponsored immigrants; employment based immigrants; and diversity immigrants who are those that come from countries from which high numbers of immigrants have not travelled to the US. The total number allowed entry from these three groups must not exceed the worldwide level or quota established under the Act. The worldwide levels are set at 480,000 for family sponsored immigrants under section 201(c) (see 8.8-Family Reunion); 140,000 for employment based immigrants under section 201(d) (see further 8.5-Migrant Workers) and 55,000 for diversity immigrants under section 201(e).

A number of immigrants are exempt from the worldwide levels, these are set out in 201(b)(1) (A)-(E) and include under paragraph (A) certain categories of “special immigrants”, defined in section 101(a)(27) as: immigrants, lawfully admitted for permanent residence and is returning from a temporary visit abroad; or immigrants who were citizens of the United States and may, apply for reacquisition of citizenship. Paragraph B covers refugees admitted under section 207. Paragraph C covers agricultural workers under section 210 whose status has been made lawful. Paragraph D refers to immigrants whose removal under section 240A(a) has been cancelled because they have been lawfully admitted for permanent residence for 5 years; have resided in the US continuously for 7 years after having been admitted in any status, and have not been convicted of any aggravated felony. Finally paragraph E of section 201(b)(1) exempts those who under section 249 are allowed permanent residence status due to their arrival in the country prior to January 1, 1972.

Under section 208(1)(a) of the INA individuals have the right to claim asylum if on the territory of the US or if they have arrived in the US irrespective of their legal status. Refugees are defined in section 101 (a) 42 as those outside their country of origin or habitual residence who are “…unable or unwilling to return… and…unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”. This definition is based on the definition of a refugee within the UN 1951 Convention on the Status of Refugees. Paragraph 1(b) of section 208 sets out exceptions to the right to claim asylum which excludes: those that can be removed through bilateral or multilateral agreements to a third country where they are not at risk of persecution and where the asylum applications will be examined fairly; those that have not applied for asylum within one year of their arrival in the US and those that have made a previous asylum application. However paragraph 1(b) D states that if conditions in the country of origin, which materially affect the asylum application, have changed applicants excluded under paragraph 1(b) A-C may still apply for asylum.

Other persons who face danger in their countries of origin but do not fulfil the definition of a refugee may apply for Temporary Protection Status (TPS), a temporary immigration status, under section 244 of the INA. This is a status granted to individuals from designated countries who are unable to return to their homelands because of extraordinary or temporary conditions there. TPS does not lead to permanent status in the US although persons with this status may work and are entitled to work authorisations under section 244(a)B. Under section 212(d)(5) of the INA the Attorney General has discretion to parole into the United States, temporarily under prescribed conditions and on a case-by-case basis, for urgent humanitarian reasons or significant public benefit, any person applying for admission to the United States.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

Hide