Foreign nationals entering (or who wish to enter) the United States are generally classified as either immigrants or nonimmigrants. There are several important distinctions of immigrant versus nonimmigrant status in Michigan. Immigrants are granted the status of “permanent residence” allowing them to work, study, and otherwise live permanently in the United States. Nonimmigrants, on the other hand, are foreign nationals who are entering the United States for a specific duration of time and for a specific purpose. They are allowed to participate in various activities, such as tourism, employment, academic studies, depending on the designation of their nonimmigrant visa. Upon conclusion of their stay, they are required to leave the U.S., unless they obtain an extension of their stay, a change to another nonimmigrant status, or adjust their status to that of a permanent resident.

The immigration law presumes that every foreign national entering the United States is an intending immigrant, unless proven otherwise. Therefore, foreign nationals applying for a nonimmigrant visa at U.S. Consulates/Embassies overseas may have to prove that they are not intending immigrants. There are, however, certain types of nonimmigrant visas which allow a foreign national to have dual intent, i.e., an intent to come temporarily pursuant to the terms of the nonimmigrant visa, while at the same time having a long-term intent to immigrate into the United States.

Nonimmigrant visas are typically easier to obtain than immigrant visas and take much less time. They may be obtained at a U.S. Consulate/Embassy overseas. Immigrant visas, as well, may be obtained by applying overseas at a U.S. Consulate/Embassy, or, if the foreign national is already in the United States and meets the eligibility requirements, the foreign national may apply with the U.S. Citizenship and Immigration Services (USCIS) to adjust their status to that of a permanent resident.

The Government Agencies Involved

Immigration law is administered by the Department of State, the Department of Homeland Security, and the Department of Justice. Because U.S. Consulates/Embassies are part of the Department of State, a foreign national’s application for a visa at a consulate/embassy outside the U.S. is within the Department of State’s jurisdiction. When a foreign national is in the United States, his or her applications are adjudicated by the U.S. Citizenship and Immigration Services (USCIS), which is a branch of the Department of Homeland Security. The Department of Justice’s Executive Office for Immigration Review (EOIR) consists of the immigration judges and the Board of Immigration Appeals (BIA). Immigration judges conduct removal hearings, while the BIA is an administrative appeals body, and both are separate and independent from the immigration-related agencies. EOIR is directly accountable to the Attorney General. Unfavorable decisions by an immigration judge may be appealed to the BIA; unfavorable decisions by the BIA may be appealed to the federal courts.

The Department of Labor (DOL) also plays a role in the immigration process. DOL works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. In Michigan, they do so by requiring a certified labor condition application or a labor certification before a nonimmigrant petition or immigrant petition, respectively, is filed with the USCIS.

The Role of the Immigration Attorney

Immigration law provides the foreign national with the right to be represented by counsel, at their own expense, while appearing or conducting business with various federal immigration agencies. Because immigration law is federal law, an attorney can generally represent a foreign national in any state, although such an attorney may not be able to advise the foreign national on matters of state law if they are not licensed in that particular state. There are no substantive differences in immigration law based on where a foreign national resides or intends to reside (with a few exceptions).

An attorney can play an integral role in the immigration process. Often, individuals seeking to enter the U.S. attempt to submit their own paperwork to the appropriate agency. Without knowledge of the requirements of the agency, and the potential problems submissions may cause, their efforts may create substantial problems. For example, without knowing the grounds of inadmissibility, an individual could inadequately explain an issue on their application which may jeopardize not only their immediate application, but also future applications.

Also, an attorney is able to supply an individual with alternatives and/or options to which they may be entitled. Often, an individual is eligible for more than one visa, or is eligible to apply in different ways. An attorney can best counsel the corporation or foreign national as to the most cost effective process with the greatest likelihood of success.

The immigration attorneys at our firm may assist you as you try to navigate this process. To learn more about immigrant vs nonimmigrant status in Michigan, speak with a lawyer today.

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