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Immigration Basics: Status, Law, Agencies, and Courts

Contents

    Immigration Status

    There are different immigration statuses for everyone in the U.S. You can think about status as a spectrum, ranging from being a U.S. citizen on one end to being “out of status/without status” on the other. All the different statuses are listed below.

    U.S. Citizens

    If you were born on U.S. soil (regardless of how your parents entered the U.S.), you are automatically a citizen at birth. If you were born outside of the U.S., you can become a citizen in one of three ways:

    • Acquisition – You were born abroad to at least one U.S. citizen parent;
    • Derivation – One of your parents with whom you live naturalizes before you turn 18 and you were already a lawful permanent resident (LPR, or green card holder);
    • Naturalization – You apply for citizenship after being an LPR for a certain number of years.

    No matter how you become a citizen, all citizens have the same rights and responsibilities. The one exception is naturalized citizens cannot become president of the U.S. Citizens cannot be deported or have their citizenship revoked (canceled) unless they got their citizenship by fraud.

    To learn more about citizenship, read Citizenship and Naturalization.

    Lawful Permanent Residents (Green Card Holders)

    Lawful permanent residents (LPRs, or green card holders) have many of the same rights and responsibilities as citizens. The main differences are that LPRs:

    • Cannot vote
    • Cannot run for public office
    • Cannot be on a jury
    • Cannot be employed by the federal government
    • Cannot help their parents, siblings, or married children to become LPRs
    • Have limitations on their travel outside the U.S. (usually trips must be less than six months)
    • Can be deported for certain types of misconduct no matter how long they have lived in the U.S.

    Most immigrants become LPRs through family, employment, or by being approved as a refugee or asylee. To learn about these paths to becoming an LPR, read Family & Marriage-Based Immigration, look at the Humanitarian Relief toolkit (coming soon), or look at the USCIS website.

    Once you are an LPR, you keep that status indefinitely, unless you naturalize, abandon your residency, or are deported. Your green card is usually valid for only ten years, but you are able to renew it. Even if your green card expires, you are still an LPR; you just won’t be able to prove your status without renewing your green card. To learn more about deportation, read Inadmissibility, Deportation, and Bars to Reentry.

    Conditional Permanent Residents

    In 1986, Congress changed the law to prevent sham (or “green card”) marriages. This change created the conditional permanent resident (CPR) status. CPRs get green cards that are only valid for two years. If you married a U.S. citizen or LPR less than two years before being approved for a green card, you are a CPR. For example, if you married your citizen or LPR spouse in May of 2015 and were approved for a green card through that spouse in October of 2016, you are a CPR.

    In general, CPRs have the same rights and responsibilities as LPRs. However, you and your spouse must file a joint Petition to Remove Conditions of Residence within 90 days of your CPR status expiration date. If your petition is approved, you will become an LPR. If you do not file the petition during those three months, you can be detained and/or deported. To learn about deportation, read Inadmissibility, Deportation, and Bars to Reentry.

    There are exceptions to the joint petition requirement if you are divorced, widowed, a survivor of domestic violence from your spouse, or you would suffer extreme hardship if removed from the U.S.

    The joint filing requirement can be complex. If you would like to learn more about these exceptions or if you need help applying for one, you may want to talk to an immigration lawyer. The Michigan Immigrant Rights Center may be able to help you. You can also use the Guide to Legal Help to find immigration lawyers and legal services in your area.

    Domestic Violence Survivors

    The Violence Against Women Act (VAWA) offers certain survivors of domestic violence a path to becoming an LPR by filing a petition individually, without the need for the abusive U.S. citizen or LPR spouse to file a petition first. VAWA applies to women and men. To learn more about VAWA, read Protection for Immigrant Survivors of Domestic Violence (coming soon).

    Temporary Protected Status

    Temporary Protected Status (TPS) is a short-term form of immigration relief that allows citizens of certain countries that have experienced natural disasters or war to stay in the U.S. for a certain period of time. To be eligible for TPS, you generally must already be inside the U.S. when TPS is declared for your country of citizenship. Once here, you are allowed to apply for TPS and for work authorization.

    To learn more about TPS, and for a full list of currently designated TPS countries, visit the USCIS TPS website.

    Visa Holders (Nonimmigrants)

    If you enter the U.S. for a time-limited purpose, you are known as a nonimmigrant. Nonimmigrants either applied for a visa (like student, tourist, or temporary worker visas) abroad, or were admitted through a visa waiver program (VWP). Through the VWP, the U.S. has agreements with certain countries to allow tourists to enter for a short period without first getting a visa.

    Usually your Form I-94 will tell you how long you are allowed to be in the U.S. Depending on when and how you entered the U.S., your I-94 can be physically stamped/stapled in your passport by Customs and Border Protection (CBP) or it could be electronically recorded. You are not allowed to work with a nonimmigrant status, unless your visa specifically allows it (like H-2A visas for farmworkers).

    Parole and Deferred Action 

    Parole and deferred action are not technically forms of status, but they allow you to be “legally present” in the U.S. If you are legally present in the U.S., you may be eligible for temporary work authorization, but it depends on the type of legal presence you have. You may be paroled into the U.S. for certain reasons, like emergency health care. However, despite having legal presence, you may be out of status.

    Deferred action is another form of legal presence that means any deportation activity against you is deferred (delayed). This is because your deportation is not a priority. During the deferral period, you may apply for work authorization as long as you continue to follow the terms of the deferred action program.

    No Status and Unlawfully Present

    Being without status and without legal presence affects millions of people in the U.S. If you were never formally admitted to the U.S., you likely do not have any immigration status. The same is true if you overstayed the time you were allowed to be in the U.S. on a visa. If you are out of status, it is more difficult to fix your immigration status. However, you still have certain rights when it comes to interacting with immigration officers.

    Know Your Rights

    Regardless of your immigration status, you have certain rights. Immigration and Customs Enforcement (ICE) officers must have a search warrant signed by a federal judge in order to enter your home without your permission. If officers knock on your door, you do not have to open it. Ask if they have a warrant. If they have a warrant, ask them to slide it under your door or show it to you through a window.

    Look at the warrant carefully. It should list all of the following:

    • The United States District Court for the district in which your home is located
    • Your address
    • The name of the person they are looking for
    • The judge’s name and signature
    • The dates the warrant is effective

    You have the right to not let the officer enter if the warrant does not have all this information. If your child opens the door, it is as if you did.

    The officer could have an ICE warrant, but that is not the same thing as a warrant from a judge. An ICE warrant allows ICE officers to arrest someone who is unlawfully in the U.S. An ICE warrant does not allow officers to enter private places, like a home.

    If you are stopped by a border patrol or ICE officer, you do not have to answer questions about your immigration status. You can explain your status to the officer if you want to, but you may want to speak with a lawyer first.

    Do not sign any papers officers give you if you do not understand them. You may be giving up your rights. You have a right to a hearing in front of an immigration judge. You also have the right to call your country's consulate or to have the police tell your consulate that you are arrested.

    You have the right to talk to a lawyer before answering any questions or signing any papers. Generally, you have the right to call a lawyer if you are detained. One exception to this right is if an immigration officer is detaining and deporting you using the expedited removal process. To learn more about this, read the “Expedited Removals” section of Inadmissibility, Deportation, and Bars to Reentry.

    You have the right to have a lawyer with you at any hearing in front of an immigration judge. You do not have the right to a court-appointed lawyer. You must find your own lawyer. You can use the Guide to Legal Help to find immigration lawyers and legal services near you.

    The Michigan Immigrant Rights Center offers resources that could help you and your family prepare for interactions with immigration agents.

    Immigration Law, Agencies, and Courts 

    Immigration law has various sources. The U.S. Constitution, the Immigration and Nationality Act, and Section 8 of the United States Code establish the basis for immigration law. Other federal regulations and memos (including those from the president) also add to it. Court decisions also shape how the laws are interpreted and enforced.

    The U.S. Department of Homeland Security (DHS) is in charge of many aspects of the immigration system. DHS has three main sub-agencies that deal with immigration: U.S. Citizenship and Immigration Services (USCIS); U.S. Immigration and Customs Enforcement (ICE); and U.S. Customs and Border Protection (CBP).

    U.S. Citizenship and Immigration Services (USCIS)

    USCIS is where petitions and applications are filed and processed for things like:

    • Work authorization
    • Permanent residency
    • Humanitarian relief (like asylum)
    • Citizenship and naturalization

    The USCIS Detroit Field Office processes some applications and performs interviews for certain common types of cases. The rest are filed with different offices around the country for processing.

    U.S. Immigration and Customs Enforcement (ICE)

    ICE is the enforcement arm of DHS. It is in charge of detaining (jailing) and prosecuting people suspected of violating immigration law. ICE officers can detain people who are “without status” or who broke the law and are deportable. ICE can search homes looking for people who are out of status, but only with a search warrant signed by a federal district court judge.

    To learn more about detention and deportation, read Inadmissibility, Deportation, and Bars to Reentry.

    ICE contracts with four Michigan county jails (Calhoun, Chippewa, Monroe, and St. Clair) to jail people it detains.

    U.S. Customs and Border Protection (CBP)

    CBP is in charge of securing U.S. borders and ensuring that people who are entering the U.S. are allowed to do so. It operates within 100 miles of the northern and southern international borders. CBP Officers can detain people who are “out of status.”

    To learn more about detention and deportation, read Inadmissibility, Deportation, and Bars to Reentry.

    Other Departments

    The U.S. Department of State (DOS) is in charge of approving visas for people to travel to the U.S. These visas are divided into two categories: immigrant and nonimmigrant. Immigrant visas allow someone to get a green card upon arrival in the U.S. Nonimmigrant visas are for all other types of temporary stays in the U.S., such as tourists, students, temporary employment, and entertainers. The DOS also maintains a monthly visa bulletin that tells you when certain visas become available based on the type of visa, country of origin, and petition dates.

    The U.S. Department of Labor (DOL) is involved with employment-based immigration. It certifies that foreign workers do not displace local workers. The DOL also investigates unfair immigration-related employment practices, document fraud, and cases of employment discrimination based on national origin.

    Immigration Courts

    The U.S. Department of Justice’s Executive Office for Immigration Review is in charge of the immigration administrative law courts.

    The Michigan immigration court is located in Detroit. Appeals from this court go to the Board of Immigration Appeals (BIA) in Virginia. In some cases, people can appeal a BIA decision to a federal court of appeals and then to the U.S. Supreme Court. These appeals are discretionary, meaning that the court can decide to accept them or not.