Everyone who enters the United States lawfully enters as either an immigrant or a non-immigrant. People who enter as immigrants enter the United States with the specific purpose of becoming Americans and people who enter the United States as non-immigrants enter for a short or intermediate term purpose and intend to return home at the conclusion of that purpose. Here are a few examples of Immigrants and Non-Immigrants:
- Moving to U.S. to practice in a highly skilled profession – Physician, engineer, programmer, etc.
- Minor child moving to U.S. to live with Citizen Parents
- Moving to U.S. to Invest Significant Sums of Money
- Travel to the U.S. to study at an American University
- Travel to the U.S. for tourist purposes
- Travel to the U.S. to visit relatives
Immigrant Visas are much harder to get and, in most cases, require that the applicant have a sponsor here in the U.S.. There are additionally significant “caps” or numeric limits on the issuance of immigrant visas by country and type.
Non Immigrant Visas will require that the applicant demonstrate that he or she intends to return to their country of origin. This is not always as easy as it seems because the government presumes that all applicants for entry into the U.S. have the intent to immigrate and therefore the applicant for a non- immigrant visa will commonly be present evidence to overcome this presumption in order to take advantage of the less stringent non-immigrant visa issuance rules.
In many cases, situations will arise where someone who lawfully entered the United States as a Non-Immigrant may wish to, or need to, stay in the United States permanently. Common examples of this include people who entered as a Non-Immigrant but have married a U.S. Citizen (Family Based Immigration), or changes in you or your home country that mean you will be subjected to persecution if forced to return home (Applying for Asylum).
Other tricky situations some up, for example, when an American goes overseas and gets married to or engaged to a foreign citizen, particularly when that foreign citizen has minor children.
When dealing with an asylum case, there are other factors that must be considered. Asylum applications can be affirmative, where the applicant applies on their own to the United States for a grant of asylum, or defensive, where the United States seeks to deport someone who has perhaps overstayed their visa and that person raises an asylum claim as a defense to the deportation case.
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”