The immigration process: Short- and long-term admission

Coming to the United States can be difficult. While many people come illegally, this is a dangerous route. Coming legally is also difficult, but a lawyer who specializes in immigration law can help people get through this process.

The procedure for gaining admission to the U.S. is designed to give the authorities many opportunities to determine whether the person should in fact be allowed in.

The procedure usually involves two steps: (1) filing an application before a U.S. Consul overseas and (2) appearing at the port of entry of the U.S. (the border, airport or seaport) before an Immigration & Naturalization Service ("INS") officer. Even if the person has a visa issued by a consular officer, admission is not guaranteed, because he must also be approved after thorough questioning by an officer of the Immigration and Naturalization Service (INS).

Admission requires a travel document known as a "visa" (permission to enter the U.S.). The visa is normally placed in the person's passport. It allows admission for a temporary period - either to visit or work for a specifically designated employer. Another type of visa allows the person to enter for an extended period of time.

Short-term admission
How long may I remain in the U.S. with a visa?
What happens if I "overstay"?
Visitors for business or pleasure
Students
What school may I attend with a student visa?
May I work while going to school?
May I stay after I graduate?
Long-term admission

Short term admission

Persons admitted for short periods are described as "nonimmigrants", meaning that they do not expect to remain in the U.S. Nonimmigrants may be admitted for purposes such as tourism, study, or business. Some nonimmigrants may enter to work for a specific employer - such as multinational corporations, religious organizations, or educational institutions - for periods from one or more years.

How long may I remain in the US with a visa?

People are often confused about how long they may remain in the U.S. A visa issued by a U.S. Consul allows a person only to seek admission at the port of entry for the period and number of times indicated on the face of the document.

When the person arrives, he is interviewed by the INS officer, who indicates on a separate document (the arrival-departure record, or I-94) how long the person may remain in the U.S. The INS officer can place almost any date that he or she deems proper, but most of the time it will be limited to a relatively short period, depending on how much time the person needs to complete the purpose of his visit. A tourist, for example, will not often be granted more than 6 months. A student will be allowed to remain as long as she is in school. An H-1 or intracompany transferee (L-1) may be granted 3 or more years.

Even where a person is given permission to remain for an extended period of time, each time he leaves the country he will be allowed to reapply for admission only if he still has a valid visa.

What happens if I "overstay"?

A nonimmigrant who stays longer than permitted may be deported and face other serious penalties. Once the person overstays the permitted time, he or she is considered to be unlawfully present in the United States.

A nonimmigrant who is unlawfully present in the United states for more than 180 days can be barred from returning to the United States for three years. A nonimmigrant who leaves the United States after being here unlawfully for more than a year will be barred for ten years.

If you are in this situation, do not go to the immigration service for advice, for you will most likely be arrested. See an experienced immigration lawyer right away. He or she might help you extend your visa or otherwise avoid deportation or other consequences of having been in an unlawful status.

Visitors for business or pleasure

Tourists ("visitors for pleasure") make up about 80% of the nonimmigrants who visit the United States each year. They are issued B-2 visas. Generally, immigration inspectors will allow tourists to remain in the United States for six months.

Tourists cannot work in the United States. Visitors for business may not work, but may conduct short term business needs - as long as they are not being paid a salary by a U.S. employer.

Students

Tourists may enroll in school as part-time students, so long as the course will be completed within the permitted time to visit.

Some people may enter as full-time students (a minimum of 12 hours of instruction per week) to attend colleges, universities, seminaries, conservatories, academic high schools, elementary schools, or other academic institutions or language training programs. Some students enter to attend vocational education programs.

What school may I attend with a student visa?

Foreign students are barred from entry into public elementary schools or publicly funded adult education programs. But they may attend public high schools for up to 12 months, if the student is able to pay the school for the full cost of the education.

The student may attend only a school that has been approved by the INS. The student must have the school issue a Form I-20 (Certificate of Eligibility), which must be filed with the foreign student visa application. Generally, the school or program's advertising literature will indicate whether it is authorized to accept foreign students.

May I work while going to school?

Foreign students may work up to 20 hours per week on campus without the permission of immigration officials. Work authorization is given by the foreign student advisor. This may include working in the dorm or the school cafeteria, or even as a teaching assistant.

Working off-campus is permitted in certain circumstances (such as an emergency or an unanticipated change in a person's financial situation) after the first year of study, if the student is carrying a full load and is not working more than 20 hours per week while school is in session. During the summer, the student may work 40 hours per week.

Off-campus employment requires advance approval by immigration officials, who will want to know if there is economic necessity for such employment. The INS may consider working off campus without permission as a violation of condition of status and a ground for deportation.

May I stay after I graduate?

The student must be prepared to leave the US after graduation, unless he has been given permission to change to another status.

A student who has completed college studies might get permission to work in "practical training". The school must certify that the employment is recommended for practical training in the student's field of study. The application for practical training must be made not more than 60 days before graduation nor more than 30 days after graduation. The maximum period of practical training is 12 months. Previously authorized off-campus work during the school year will be counted in the 12-month period of practical training, so someone who has already worked off-campus might not be able to get this additional practical training.

Practical training can be very valuable. It can help a student learn to apply theoretical knowledge - and it can lead to a relationship with an employer who might later sponsor the student for another visa or possibly even permanent residence.