APA Final Paper on Immigration

How the United States Immigration System Works

U.S. immigration law is complex, and there is much confusion as to how it works. Immigration law in the United

States has been built upon the following principles: the reunification of families, admitting immigrants with skills

that are valuable to the U.S. economy, protecting refugees, and promoting diversity. This fact sheet provides

basic information about how the U.S. legal immigration system is designed and functions.

The body of law governing current immigration policy is called The Immigration and Nationality Act (INA).

The INA allows the United States to grant up to 675,000 permanent immigrant visas each year across various visa

categories. On top of those 675,000 visas, the INA sets no limit on the annual admission of U.S. citizens’ spouses,

parents, and children under the age of 21.1 In addition, each year the president is required to consult with

Congress and set an annual number of refugees to be admitted to the United States through the U.S. Refugee

Resettlement Process.2

Once a person obtains an immigrant visa and comes to the United States, they become a lawful permanent

resident (LPR). In some circumstances, noncitizens already inside the United States can obtain LPR status

through a process known as “adjustment of status.”

Lawful permanent residents are foreign nationals who are permitted to work and live lawfully and permanently

in the United States. LPRs are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S.

citizens) and can remain in the country permanently, even if they are unemployed. After residing in the United

States for five years (or three years in some circumstances), LPRs are eligible to apply for U.S. citizenship. It is

impossible to apply for citizenship through the normal process without first becoming an LPR.

Each year the United States also admits a variety of noncitizens on a temporary basis. Such “non-immigrant”

visas are granted to everyone from tourists to foreign students to temporary workers permitted to remain in the

U.S. for years. While certain employment-based visas are subject to annual caps, other non-immigrant visas

(including tourist and student visas) have no numerical limits and can be granted to anyone who satisfies the

criteria for obtaining the visa.

I. Family-Based Immigration

Family unification is an important principle governing immigration policy. The family-based immigration

category allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based

immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.

Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and

How the United States Immigration System Works | American Immigration Council | October 2019

Page 2 of 10

petitioners must meet certain age and financial requirements.3 Immediate relatives are:

▪ spouses of U.S. citizens;

▪ unmarried minor children of U.S. citizens (under 21 years old);4 and

▪ parents of U.S. citizens (petitioner must be at least 21 years old to petition for a parent).

A limited number of visas are available every year under the family preference system, but prospective

immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial

requirements.5 The preference system includes:

▪ adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least

21 years old to petition for a sibling), and

▪ spouses and unmarried children (minor and adult) of LPRs.

In order to balance the overall number of immigrants arriving based on family relationships, Congress

established a complicated system for calculating the available number of family preference visas for any given

year. The number is determined by starting with 480,000 (the maximum number in principle allocated for all

family-based immigrants) and then subtracting the number of immediate relative visas issued during the

previous year and the number of aliens “paroled” into the U.S. during the previous year. 6 Any unused

employment preference immigrant numbers from the preceding year are then added to this sum to establish

the number of visas that remain for allocation through the preference system.7 However, by law, the number of

family-based visas allocated through the preference system may not be lower than 226,000.8 The number of

immediate relatives often exceeds 250,000 in a given year and triggers the 226,000 minimum for preference visas.

As a result, the total number of family-based visas often exceeds 480,000.9 In Fiscal Year (FY) 2017, family-based

immigrants comprised 66 percent of all new LPRs in the United States.10

The family-based immigration system is summarized in Table 1.

Table 1: Family-Based Immigration System

Category U.S. Sponsor Relationship Numerical Limit

Immediate Relatives U.S. Citizen adults Spouses, unmarried

minor children, and

parents

Unlimited

Preference allocation

1 U.S. citizen Unmarried adult

children

23,400*

2A LPR Spouses and minor

children

87,900

2B LPR Unmarried adult

children

26,300

How the United States Immigration System Works | American Immigration Council | October 2019

Page 3 of 10

3 U.S. citizen Married adult children 23,400**

4 U.S. citizen Brothers and Sisters 65,000***

* Plus any unused visas from the 4th preference.

** Plus any unused visas from 1st and 2nd preference.

***Plus any unused visas from all other family-based preferences.

Worldwide level of family preference allocation: 480,000 minus visas issued to immediate relatives and parolees, plus

unused employment-visas from previous fiscal year. Floor for preference categories: 226,000.

Source: William A. Kandel, U.S. Family-Based Immigration Policy, (CRS Report No. R43145) (Washington, DC:

Congressional Research Service, 2018), https://fas.org/sgp/crs/homesec/R43145.pdf

In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must

petition for an individual relative, establish the legitimacy of the relationship, meet minimum income

requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the

family member(s) upon arrival in the United States or adjustment to LPR status within the United States.11 The

individual relative also must meet certain eligibility requirements that include submitting to a medical exam and

obtaining required vaccinations, an analysis of any immigration or criminal history, as well as demonstrating

that they will not become primarily dependent on the government for subsistence.

The spouses and children who accompany or follow the principal immigrant (the one sponsored by the U.S.

citizen or LPR under the family-preference category) are referred to as derivative immigrants. Derivative

immigrants also count toward the numerical cap for the categories in the table above. That means that many of

the visa slots allotted for members of these categories are often actually used by the spouses and children of the

members. For example, in FY 2017, 65,649 people were admitted in the category “brothers and sisters” of U.S.

citizens, but only 22,611 of them were actual brothers or sisters of U.S. citizens. The rest were spouses (15,648)

and children (27,390) of the siblings of U.S. citizens.12

II. Employment-Based Immigration

The United States provides various ways for immigrants with valuable skills to come to the country on either a

temporary or a permanent basis.

Temporary Visa Classifications

Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals

for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them

and have limited ability to change jobs.13 There are more than 20 types of visas for temporary nonimmigrant

workers. These include L-1 visas for intracompany transfers; various P visas for athletes, entertainers, and skilled

performers; R-1 visas for religious workers; various A visas for diplomatic employees; O-1 visas for workers of

extraordinary ability; and various H visas for both highly-skilled and lesser-skilled workers. The visa

classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring

dependents, and other factors. In most cases, they must leave the United States if their status expires or if their

employment is terminated. It may be possible, depending on the type of job and the foreign national’s

qualifications, for an employer to sponsor the worker for permanent employment. A foreign national does not

How the United States Immigration System Works | American Immigration Council | October 2019

Page 4 of 10

have to be working for the employer in order to be sponsored. However, depending on the permanent

immigration category sought and the foreign national’s current nonimmigrant category, the foreign national

may be able to complete the steps to become an LPR while continuing to live and work in the United States.

Permanent Immigration

The overall numerical limit for permanent employment-based immigrants is 140,000 per year.14 This number

includes the immigrants plus their eligible spouses and minor unmarried children, meaning the actual number

of employment-based immigrants is less than 140,000 each year. The 140,000 visas are divided into five

preference categories, detailed in Table 2. For some categories, the sponsor must first test the U.S. labor market

under terms and conditions established by the Department of Labor, and the Secretary of Labor must certify

that the petitioner’s application met certain requirements before the sponsor may file a petition with USCIS. For

some categories, the sponsor’s first step is to file a petition with USCIS or the foreign national may self-petition.

The final step is the foreign national’s application for an immigrant visa at a U.S. Embassy or Consulate abroad

or an application to adjust status to LPR if in lawful status in the United States. For consular processing, the

immigrant visa application cannot be filed until after USCIS approves the immigrant petition. For adjustment of

status, the time to file the application depends on whether a visa number is considered to be immediately

available.15

Table 2: Permanent Employment-Based Preference System

Preference Category Eligibility Yearly Numerical Limit

1 “Persons of extraordinary ability” in

the arts, science, education,

business, or athletics; outstanding

professors and researchers,

multinational executives and

managers.

40,040*

2 Members of the professions

holding advanced degrees, or

persons of exceptional ability in the

arts, science, or business.

40,040**

3 Skilled workers with at least two

years of training or experience,

professionals with college degrees,

or “other” workers for unskilled

labor that is not temporary or

seasonal.

40,040***

“Other” unskilled laborers

restricted to 5,000

4 Certain “special immigrants”

including religious workers,

employees of U.S. foreign service

9,940

How the United States Immigration System Works | American Immigration Council | October 2019

Page 5 of 10

posts, former U.S. government

employees and other classes of

foreign nationals.

5 Persons who will invest $500,000 to

$1 million in a job-creating

enterprise that employs at least 10

full time U.S. workers. For petitions

filed on or after 11/21/2019 the

investment amounts increase to

$900,000 to $1.8 million, with future

increases at specified intervals.16

9,940

*Plus any unused visas from the 4th and 5th preferences.

**Plus any unused visas from the 1st preference.

***Plus any unused visas from the 1st and 2nd preferences.

Worldwide level of employment-based immigrants: 140,000 for principal applicants and their dependents.

Source: U.S. Dep’t of Homeland Security, Office of Immigration Statistics, Annual Flow Report: Lawful

Permanent Residents: August 2018, 2018, p. 10,

https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2017.pdf

In FY 2017, immigrants admitted through the employment preferences made up 12 percent of all new LPRs in

the United States.17

III. Per-Country Ceilings

In addition to the numerical limits placed upon the various immigration preferences, the INA also places a limit

on how many immigrants can come to the United States from any one country. Currently, no group of

permanent immigrants (family-based and employment-based) from a single country can exceed seven percent

of the total number of people immigrating to the United States in a single fiscal year.18 This is not a quota to

ensure that certain nationalities make up seven percent of immigrants, but rather a limit that is set to prevent

any immigrant group from dominating immigration patterns to the United States.

IV. Refugees and Asylees

Protection of Refugees, Asylees, and other Vulnerable Populations

There are several categories of legal admission available to people who are fleeing persecution or are unable to

return to their homeland due to life-threatening or extraordinary conditions.

Refugees are admitted to the United States based upon an inability to return to their home countries because

of a “well-founded fear of persecution” due to their race, membership in a particular social group, political

opinion, religion, or national origin.19 Refugees apply for admission from outside of the United States, generally

from a “transition country” that is outside their home country. The admission of refugees turns on numerous

How the United States Immigration System Works | American Immigration Council | October 2019

Page 6 of 10

factors, such as the degree of risk they face, membership in a group that is of special concern to the United States

(designated yearly by the president and Congress), and whether or not they have family members in the United

States.

Each year, the president, in consultation with Congress, determines the numerical ceiling for refugee

admissions.20 The total limit is broken down into limits for each region of the world as well. After September 11,

2001, the number of refugees admitted into the United States fell drastically. After the Bush administration put

new security checks in place, annual refugee admissions returned to their previous levels and rose during the

Obama administration. In the Trump administration, the refugee ceiling has sharply fallen, from 110,000 in 2017

to 45,000 in 2018 and 30,000 in 2019. Since 2017, actual admissions of refugees have also fallen well below 50

percent of the actual annual ceiling.21 At 22,491, 2018 had the lowest number of admitted refugees since the

system was created in 1980.22 On September 26, 2019, the president set the annual cap on refugees for fiscal year

2020 at just 18,000, the lowest level ever.23

Of the 30,000 admissions determined by the president for 2019, the regional allocations are shown in Table 3

below.

Table 3: Presidential Determination on Refugee Admissions, FY 2019

Africa 11,000

East Asia 4,000

Europe and Central Asia 3,000

Latin America/Caribbean 3,000

Near East/South Asia 9,000

Unallocated Reserve n/a

TOTAL 30,000

Source: Refugee Admissions and Resettlement Policy, (Washington,

DC: Congressional Research Service, December 18, 2018),

https://fas.org/sgp/crs/misc/RL31269.pdf

Asylum is available to persons already in the United States who are seeking protection based on the same five

protected grounds upon which refugees rely.24 They may apply at a port of entry at the time they seek admission

or within one year of arriving in the United States. There is no limit on the number of individuals who may be

granted asylum each year, nor are there specific categories for determining who may seek asylum. In FY 2017,

26,568 individuals were granted asylum.25

Refugees and asylees are eligible to become LPRs one year after admission to the United States as a refugee or

one year after receiving asylum.26

V. The Diversity Visa Program

The Diversity Visa lottery was created by the Immigration Act of 1990 as a dedicated channel for immigrants from

countries with low rates of immigration to the United States. Each year, 55,000 visas are allocated randomly to

How the United States Immigration System Works | American Immigration Council | October 2019

Page 7 of 10

nationals from countries that have sent fewer than 50,000 immigrants to the United States in the previous five

years.27 Of the 55,000, up to 5,000 are made available for use under the Nicaraguan Adjustment and Central

American Relief Act program, created in 1997 to provide relief to certain asylum seekers who applied for asylum

before a specific date. This results in a reduction of the actual annual limit to 50,000. Beginning in 2020, DOS

expects most of the 5,000 visas to be restored to the Diversity Visa program. Although originally intended to favor

immigration from Ireland (during the first three years of the program at least 40 percent of the visas were

exclusively allocated to Irish immigrants), the Diversity Visa program has become one of the only avenues for

individuals from certain regions in the world to secure a green card.

To be eligible for a diversity visa, an immigrant must have a high-school education (or its equivalent) or have,

within the past five years, a minimum of two years working in a profession requiring at least two years of training

or experience. Spouses and minor unmarried children of the principal applicant may also enter as derivatives.28

A computer-generated random lottery drawing chooses selectees for diversity visas. The visas are distributed

among six geographic regions with a greater number of visas going to regions with lower rates of immigration,

and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over

the last five years.

People from eligible countries in different continents may register for the lottery. However, because these visas

are distributed on a regional basis, the program especially benefits Africans and Eastern Europeans.

VI. Other Forms of Humanitarian Relief

Temporary Protected Status (TPS) is granted to people who are in the United States but cannot return to their

home country because of “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed

conflict.”29 TPS is granted to a country for six, twelve, or eighteen months and can be extended beyond that if

unsafe conditions in the country persist. TPS does not necessarily lead to LPR status or confer any other

immigration status.

Deferred Enforced Departure (DED) provides protection from deportation for individuals whose home countries

are unstable, therefore making return dangerous.30 Unlike TPS, which is authorized by statute, DED is at the

discretion of the executive branch. DED does not necessarily lead to LPR status or confer any other immigration

status.

Deferred Action for Childhood Arrivals (DACA) is a program established in 2012 which permits certain individuals

who were brought to the United States under the age of 16 and who had resided continuously in the United

States since June 15, 2007, to remain in the United States and work lawfully for at least two years, so long as they

have no significant criminal record and have graduated high school or college or received a degree equivalent.31

It does not confer any path to permanent legal status and requires renewal every two years. In 2017, the Trump

administration ended DACA, but due to a court order, individuals who had DACA before the program was ended

are still permitted to renew their work authorization and protection from deportation.

Certain individuals may be allowed to enter the U.S. through parole, even though they may not meet the

How the United States Immigration System Works | American Immigration Council | October 2019

Page 8 of 10

definition of a refugee and may not be eligible to immigrate through other channels. Parolees may be admitted

temporarily for urgent humanitarian reasons or significant public benefit.32

VII. U.S. Citizenship

In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green

card) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or

through the Violence Against Women Act, VAWA). There are other exceptions including, but not limited to,

members of the U.S. military who serve in a time of war or declared hostilities.33 Applicants for U.S. citizenship

must be at least 18 years old, demonstrate continuous residency, demonstrate “good moral character,” pass

English and U.S. history and civics exams (with certain exceptions), and pay an application fee, among other

requirements.34

Endnotes

1 This number results from adding the family-based annual limit, the employment-based annual limit, and the diversity program annual

limit; also see Ruth Ellen Wasem, U.S. Immigration Policy on Permanent Admissions (CRS Report No. RL32235) (Washington, DC:

Congressional Research Service, 2010), p. 3, https://www.fas.org/sgp/crs/homesec/RL32235.pdf.

2 American Immigration Council, An Overview of U.S. Refugee Law and Policy (Washington, DC: June 18, 2019),

https://www.americanimmigrationcouncil.org/research/overview-us-refugee-law-and-policy.

3 INA §212(a) and INA §212(a)(4). Also see William A. Kandel, U.S. Family-Based Immigration Policy (Washington, DC: Congressional

Research Service, February 9, 2018), p. 7, https://fas.org/sgp/crs/homesec/R43145.pdf.

4 Visa numbers are also available for children adopted by U.S. citizens. See U.S. Department of State, “Intercountry Adoption,” accessed

October 7, 2019, https://travel.state.gov/content/adoptionsabroad/en.html.

5 Ibid.

6 INA §201(c).

7 Ruth Ellen Wasem, U.S. Immigration Policy on Permanent Admissions (Washington, DC: Congressional Research Service, March 13, 2012),

p. 3, https://www.fas.org/sgp/crs/homesec/RL32235.pdf.

8 INA §201(c)(1)(B)(ii).

9 Ruth Ellen Wasem, U.S. Immigration Policy on Permanent Admissions (Washington, DC: Congressional Research Service, March 13, 2012),

p. 3, https://www.fas.org/sgp/crs/homesec/RL32235.pdf.

10 Katherine Witsman, Annual Flow Report: Lawful Permanent Residents, U.S. Department of Homeland Security Office of Immigration

Statistics, August 2018, p. 5, https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2017.pdf.

11 An affidavit of support is a document an individual must sign to accept financial responsibility for another person who is coming to the

U.S. to live permanently. Sponsors of the affidavit of support must be at least 18 years old, be a U.S. citizen or lawful permanent resident,

and reside in the U.S. and provide evidence showing that their annual income is no less than 125% of the federal poverty level. See

USCIS, “Affidavit of Support,” https://www.uscis.gov/green-card/green-card-processes-and-procedures/affidavit-support.

12 U.S. Department of Homeland Security, “Table 7. Persons Obtaining Lawful Permanent Resident Status by Type and Detailed Class of

Admission: Fiscal Year 2017,” Yearbook of Immigration Statistics 2017, Last updated October 2, 2018, accessed February 28, 2019,

https://www.dhs.gov/immigration-statistics/yearbook/2017/table7.

How the United States Immigration System Works | American Immigration Council | October 2019

Page 9 of 10

13 Some nonimmigrant visa classifications permit foreign workers to work in the United States without an employer having first filed a

petition on the foreign worker’s behalf. These include such nonimmigrant classifications as E-1, E-2, E-3, and TN. USCIS, “Temporary

(Nonimmigrant) Workers,” accessed March 5, 2019, https://www.uscis.gov/working-united-states/temporary-nonimmigrant-workers.

14 INA §201(d); U.S. Department of State, “Employment-Based Immigrant Visa,” accessed February 28, 2019,

https://travel.state.gov/content/visas/en/immigrate/employment.html.

15 Whether a visa is immediately available is determined by the foreign national’s “priority date.” When labor certification is required, the

foreign national’s “priority date” is the date that the sponsor filed the application with DOL. But the “priority date” does not “attach,” as

to the foreign national’s ability to receive an immigrant visa number, unless DOL issues the labor certification and USCIS approves the

immigrant petition. If no labor certification is required, the “priority date” is the date USCIS accepted the immigrant petition for filling,

but USCIS petition approval is required for the date to “attach.” If the “priority date” that would attach upon agency approval is current

when the immigrant petition is being filed, then the foreign national, and derivatives if applicable, in lawful status in the United States,

may file their adjustment applications at that time. If the annual and per country limits result in too few visas available for the demand,

then a backlog occurs and the “priority date” gives the foreign national a place in the backlog queue. When the “priority date” is reached,

then the foreign national (and derivatives, if applicable) may file an application to adjust status if lawfully in the United States and the

immigrant petition is pending or has been approved. If the immigrant petition is not approved (or in some situations, was not approvable

when filed), then the priority date will not “attach” and USCIS also will deny the adjustment applications.

16 84 Fed. Reg. 35750, 35808 (July 24, 2019) (to be codified at 8 C.F.R. § 204.6(f)(1)-(3)). The regulations also specify how the increases are

to be calculated and when. Id.

17 Katherine Witsman, Annual Flow Report: Lawful Permanent Residents, U.S. Department of Homeland Security Office of Immigration

Statistics, August 2018, p. 4, https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2017.pdf.

18 INA §202(a)(2). There are exceptions to this limit, mainly in the area of family-based immigration. For example, 75% of the second

family preference immigrants are exempt from the per-country limit. See William A. Kandel, U.S. Family-Based Immigration Policy

(Washington, DC: Congressional Research Service, February 9, 2018), https://fas.org/sgp/crs/homesec/R43145.pdf.

19 8 U.S.C. §§1101 et seq. P.L. 96-212, March 17, 1980. This definition conforms with the definition used in the United Nations Convention

and Protocol relating to the status of refugees.

20 INA §207(a).

21 Andorra Bruno, Refugee Admissions and Resettlement Policy (Washington, DC: Congressional Research Service, December 18, 2018), p.

2, https://fas.org/sgp/crs/misc/RL31269.pdf.

22 Ibid. at p. 5.

23 Priscilla Alvarez, CNN, US sets a refugee cap of 18,000 for next year -- a new historic low,

https://www.cnn.com/2019/09/26/politics/refugee-cap-historic-low/index.html.

24 INA §208.

25 U.S. Citizenship and Immigration Services, “Table 16. Individuals Granted Asylum Affirmatively or Defensively: Fiscal Years 1990 to

2017,” accessed August 22, 2019, https://www.dhs.gov/immigration-statistics/yearbook/2017/table16.

26 INA §209(a). Asylees may apply for LPR status after one year, but are not required to do so. There are no numerical limitations on

refugee or asylee adjustments of status.

27 INA §203(c).

28 U.S. Department of State, Bureau of Consulate Affairs, “Diversity Visa Program: Confirm Your Qualifications,” accessed March 5, 2019,

https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-if-you-are-selected/diversity-

visa-confirm-your-qualifications.html.

29 INA §244.

How the United States Immigration System Works | American Immigration Council | October 2019

Page 10 of 10

30 U.S. Citizenship and Immigration Services, “Delayed Enforced Departure,” updated March 30, 2018,

https://www.uscis.gov/humanitarian/temporary-protected-status/deferred-enforced-departure.

31 U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals,” accessed April 26, 2019,

https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca.

32 U.S. Citizenship and Immigration Services, “Humanitarian Parole,” updated December 15, 2017,

https://www.uscis.gov/humanitarian/humanitarian-parole.

33 INA §319.

34 William A. Kandel, U.S. Naturalization Policy (Washington, DC: Congressional Research Service, January 16, 2014), p. 4-7, https://fas.org/sgp/crs/misc/R43366.pdf.