Immigration

Immigration Preferences for Entering Aliens

By January 12, 2017 No Comments

Preferences for Entering Aliens: Second preference:

Spouses and unmarried sons and daughters of lawfully resident aliens
The second preference of 2fi%, a total of 70,200 plus any
visas not used by the first-preference group, is made avail
able to qualified immigrants who are the spouses or the
unmarried sons or daughters of an alien lawfully admitted
for permanent residence.2 Here too the statute’s use of
“unmarried sons or daughters” is intended to avoid its
definition of child. We note that although a resident alien’s
married child is not within the second-preference group,
such a child may qualify for the fourth preference if his
parent becomes a citizen. Moreover, the statute gives no
preference to the parents of a lawfully resident alien.
§2.24c Third preference: Professionals, scientists and artists
The third preference of 10%, a total of 27,000 visas, is
made available to:

“qualified immigrants who are members of the profes
sions, or who because of their exceptional ability in the
sciences or arts will substantially benefit prospectively
the national economy, cultural interests, or welfare of
the United States, and whose services in the profes
sions, sciences or arts are sought by an employer in
the United States.”

The statute defines “profession” to “include but not be
limited to architects, engineers, lawyers, physicians, sur
geons, and teachers in the elementary or secondary schools,
colleges, academies, or seminaries.”4 This statutory refer
ence to physicians and surgeons in effect is modified by
1976 legislation which radically curtailed the immigration
opportunities for foreign doctors.

The statutory listing manifestly is by no means exclusive,
and the designation of occupations which may be regarded

“sisters,” Congress again has used undefined terms, with
a manifest design for flexibility. However, the statutory
definition of “child” is followed in determining whether the
prospective immigrant qualifies as a brother or sister.

Sixth preference: Immigrants coming to perform labor
The sixth preference of 10%, a total of 27,000 visas, is
made available:

“to qualified immigrants who are capable of perform
ing specified skilled or unskilled labor, not of a tem
porary or seasonal nature, for which a shortage of em
ployable and willing persons exists in the United
States.’*

Like the third preference (and unlike the preferences
based on relationship), the sixth preference has a fixed
ceiling and does not inherit the visa numbers unused by
higher priority groups. In addition, it must satisfy the
special labor certification requirements. The statute re
quires that the alien must be capable of performing “speci
fied” labor, that the labor must not be of a temporary or
seasonal nature, and that there must be a shortage of
persons in the United States able and willing to perform
such labor.

Nonpreference immigrants

Any portion of the annual quotas which is not used by the
six preference groups is made available to other qualified
immigrants in the order of priority described in §2.24k. The
nonpreference group thus includes all immigrants who are
not entitled to immediate relative or special immigrant
status and who are not within one of the seven preference
categories. Every immigrant is presumed to be a nonpref
erence immigrant unless he establishes to the satisfaction
of the consular officer and the immigration officer that he
status on behalf of the prospective immigrant and obtaining
the Attorney General’s approval.

Preliminary certification from Department of Labor
Immigrants in the third and sixth preferences or in the
nonpreference category who seek to enter the United States
for the purpose of performing skilled or unskilled labor
are barred from entry unless they first obtain a certification
from the Secretary of Labor that (1) there is a shortage
of qualified and available workers in the United States
to perform such labor; and (2) the immigrant’s employ
ment will not adversely affect wages and working conditions
in the United States.

Timing of allocations from worldwide quota
Demand for immigration may be in excess of the avail
able supply of allocations. The general rule is that alloca
tions are made first to the preference classes in their numer
ical order of priority, with the prescribed numerical limita
tions for each class.

Within the nonpreference group the
rule of first come, first served, is followed, and qualified
immigrants within that category are assigned visas strictly
in the order in which they qualify. The visa priority date
of an immigrant with an individual labor certification is
the date a valid application for such certification was re
ceived in the appropriate State Employment Service office.
^#»x In regard to the six preference groups immigrant visas
\ within each group are issued to eligible aliens in the order
in which the visa petitions on their behalf are filed, except
when third or sixth preference immigrants are entitled to
an earlier priority date on the basis of an approved labor
certification. is ments (1) an immigrant visa or its
equivalent, and (2) a
passport.

Immigrant visa or equivalent document
The immigrant visa is the basic entry document and must
be presented by an immigrant as a prerequisite to a valid
entry. In order to satisfy the statutory command an immi
grant visa must be properly issued by a consular officer at
his office outside the United States to an eligible immigrant
under the immigration law, and must be both valid and
unexpired.

The requirement for an immigrant visa is satisfied, how
ever, by the presentation of an equivalent document attest
ing to immigrant status. Such equivalent documents include3
a reentry permit, a resident alien’s border crossing identifi
cation card, or an alien registration receipt card—commonly
known as the green card (if returning from a temporary
absence abroad not exceeding one year).

Exemptions from visa requirement
Certain applicants for entry as immigrants are not re
quired to present an immigrant visa or equivalent document.
These include:

(1) An alien child born subsequent to the issuance of an
immigrant visa to its accompanying partner

(2) An alien child born during the temporary absence
abroad of its lawfully resident alien or citizen or
noncitizen national mother, accompanying its
parent on the mother or father’s first return to the
United States.

(3) An American Indian born in Canada.

expired passport,” except that a passport is not required
for certain categories specified in the regulations.,
The law confers upon the Attorney General the power to
prescribe when a passport for immigrants shall be required,
and such power is exercised without the need for concur
rence or approval by the Secretary of State. The Attorney
General’s regulations declare that when a passport is re
quired, its presentation can be waived by the district direc
tor at the port of entry, upon a showing of good cause.

Documentary Requirements for Nonimmigrants
The statute precludes the entry of a nonimmigrant unless
he has two documents:

(1) A passport valid for at least six months after the
expiration of his contemplated period of stay or
initial admission in the United States.
(2) A valid nonimmigrant visa or nonresident alien’s
border crossing card.’

A passport is defined as a travel document issued by a
competent authority showing the bearar’s origin, identity
and nationality, if any, which is unconditionally valid for
the bearer’s entry into a foreign country. A nonimmigrant
visa means a visa properly issued to an alien as a nonimmi
grant by a competent officer.

Since nonimmigrants seek to come temporarily these
documentary requirements are not as rigid as those appli
cable to immigrants. Very expensive authority to waive the
need for documents is granted by the statute. Unlike its
mandates for immigrants the statute directs that the au
thority to waive the documentary requirements for non-

on aliens, when he finds that the entry of any class of aliens
would be detrimental to the United States.

* Exclusions Related to Formalities
in Applications for Entry •

Aliens Previously Excluded, Deported or Removed
Aliens against whom a final order of exclusion has been
executed are barred from reentry for one year, and aliens
against whom an expulsion order has been executed pur
suant to law or who have been removed from the United
States at Government expense are barred for 5 years, un
less in each instance the Attorney General has consented to
their reapplying for admission to the United States. The
statute requires similar consent to reapply when the alien
has been removed from the United States because of indi
gence or as an alien enemy, or pursuant to a grant of volun
tary departure at Government expense.’)

Francisco Hernandez

Author Francisco Hernandez

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