Immigration Preferences for Entering Aliens

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 requires 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 received 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 identification 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 required 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 required, 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 applicable 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 authority 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, unless 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 indigence or as an alien enemy, or pursuant to a grant of volun tary departure at Government expense.’)