This article briefly describes the immigration benefits available under U.S. immigration law not covered in our Quick References to nonimmigrant visas, employment-based immigrant visas, and family-sponsored immigrant visas.
Deferred Action for Childhood Arrivals
You may request consideration of deferred action for childhood arrivals if you:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
To ameliorate a harsh and unjust outcome, the Bureau of Citizenship and Immigration Services (BCIS) may decline to institute removal proceedings, terminate proceedings, or decline to execute a final order of deportation. This deferred action is granted by the regional commissioner based on a personal recommendation from the district director. Factors considered include:
- The likelihood of ultimately removing the alien, including: (1) the likelihood that the alien will depart without formal proceedings; (2) the age or physical condition affecting ability to travel; (3) the likelihood that another country will accept the alien; (4) the likelihood that the alien will qualify for some form of relief.
- The presence of sympathetic factors that could lead to a result that could adversely affect future cases or could lead to a large amount of adverse publicity.
- Whether the alien is a member of a class of aggravated violators whose cases have been given a high enforcement priority.
Diversity Visa Lottery
Each year, 50,000 immigrant visas are made available through a lottery to people who come from countries with low rates of immigration to the U.S. The State Department publishes each year the names of countries eligible to participate in that year’s lottery. The State Department chooses winners randomly from all qualified entries. Anyone who is selected under this lottery will be given the opportunity to apply for permanent residence. The applicant or their spouse must be a native of a country that is eligible to participate in the Diversity Visa Lottery. The applicant may also be eligible to apply if their parent was born in a country that is eligible to participate. An applicant must have a high school diploma or the equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or the applicant must have two years of work experience within the last five years in an occupation that requires at least two years of training or experience to perform. Before each year’s lottery drawing, the Department of State will publish the names of countries eligible to participate in that year’s lottery and explicit instructions on how to apply. Instructions are usually posted in August, and entries must be submitted during the 30-day period beginning on the first Monday in October.
Refugees and Humanitarian Immigration Classifications
A “refugee” is defined by U.S. immigration law as:
(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or
(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
A person abroad seeking refugee status should contact the UN High Commissioner for Refugees, an international non-profit voluntary agency, or a U.S. embassy or consulate. If you might be eligible for resettlement in the U.S., you must then complete a packet of forms, and the Bureau of Citizenship and Immigration Services (BCIS) will conduct a formal interview with you to determine if you qualify for refugee status. If BCIS determines that you should be resettled in the United States as a refugee, the State Department, together with other organizations, will then complete your processing.
To qualify for asylum, a person must meet the above definition of “refugee.” In contrast with refugee processing, which takes place abroad, to apply for asylum a person must be in the U.S. or at a port of entry. A person must apply for asylum within one year of their last arrival in the United States but may apply for asylum later than one year if there are changed circumstances that materially affect eligibility for asylum or extraordinary circumstances directly related to their failure to file within one year. These may include certain changes in the conditions in the applicant’s country, certain changes in the applicant’s own circumstances, and certain other events.
Withholding of Removal
Withholding of removal is available to a person who establishes that it is more likely than not that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. Withholding has a higher standard of proof than asylum (likelihood versus “well-founded fear” of persecution). However, withholding is mandatory, whereas asylum is discretionary.
Convention Against Torture
To qualify for protection under the Convention Against Torture, the applicant must establish that it is more likely than not that he or she would be tortured by or with the acquiescence of the government if removed to the proposed country of removal.
Temporary Protected Status
Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof) who are temporarily unable to return to their homeland because of ongoing armed conflict, environmental disasters, or other extraordinary and temporary conditions.
During the period for which the Attorney General has designated a country under the TPS program, TPS beneficiaries are not required to leave the United States and may obtain work authorization. When the Attorney General terminates a country’s TPS designation, beneficiaries return to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS.
Deferred Enforced Departure
Deferred Enforced Departure (DED) is a temporary protection from removal which is granted to aliens from a designated country. DED is designated by the Office of the President through Executive Order or Presidential Memorandum, as a constitutional power to conduct foreign relations.
The Attorney General may, in his discretion, parole into the United States temporarily, under such conditions as he may prescribe on a case-by-case basis, for urgent humanitarian reasons or significant public benefit, any alien applying for admission to the United States. Parole is an extraordinary measure, sparingly used to bring an otherwise inadmissible alien into the United States for a temporary period of time due to a very compelling emergency. Humanitarian parole can only be requested for persons who are outside of the U.S. Examples of instances in which humanitarian parole has been used include:
- Receive medical treatment
- Prevent inhumane separation of families.
- Enable the parolee to qualify for naturalization or adjustment of status in certain limited situations.
- Enable entry as a witness or defendant in a criminal case.
Adjustment of Former Diplomatic Officers for Compelling Reasons
Each year, a maximum of 50 foreign diplomatic officers admitted in A or G nonimmigrant status and their immediate families may be granted adjustment of status despite their failure to maintain status. The Attorney General may grant such application after consulation with the Secretary of State if the applicant is a person of good moral character, is admissible, and has shown compelling reasons demonstrating an inability to return to their home country, and that such adjustment would not be contrary to the national welfare, safety or security.
Country-Specific Immigration Benefits
Cuban Adjustment Act of 1996 (CAA)
This Act provides for a special procedure under which Cuban nationals or citizens, and their accompanying spouses and children, may obtain a haven in the U.S. as lawful permanent residents. The CAA gives the Attorney General the discretion to grant permanent residence to Cuban nationals or citizens seeking adjustment of status if they have been present in the U.S. for at least 1 year after admission or parole and are admissible as immigrants. The public charge ground of inadmissibility does not apply to applicants filing for benefits under the CAA. Nor does inadmissibility for having arrived at a place other than an open port of entry apply. The CAA applies to the alien’s spouse and children regardless of their country of citizenship or place of birth, provided:
- the relationship existed at the time the principal alien obtained lawful permanent residence;
- the relationship continues to exist until the dependent spouse or child adjusts status;
- they are residing with the principal alien in the United States;
- they are eligible to receive an immigrant visa; and
- they are admissible to the United States for such permanent residence.
Syrian Adjustment Act
This Act allows up to 2,000 eligible Syrian nationals who were previously granted asylum in the United States to obtain permanent residency independent of the annual statutory limit of 10,000 asylum-based adjustments. In order to be eligible for adjustment of status under this law, the principal alien must:
- Be a Jewish national of Syria;
- Have arrived in the United States after December 31, 1991, after being permitted by the Syrian government to depart from Syria; and,
- Be physically present in the United States at the time of filing the application to adjust status.
In addition, all applicants, including the spouse, child, or unmarried son or daughter of a principal alien described above, must:
- Apply for adjustment of status under this law no later than October 26, 2001, or have applied for adjustment of status under another provision of the Immigration and Nationality Act and request that the basis of that pending application be changed to the Syrian Adjustment Act;
- Have been physically present in the United States for at least 1 year after being granted asylum;
- Not be firmly resettled in any foreign country; and
- Be admissible as an immigrant under the Act at the time of examination for adjustment of status.
Lautenberg (Specter) Amendment for Soviet and Indochinese Parolees
Certain nationals of the Soviet Union, Vietnam, Laos, and Cambodia have been paroled into the U.S. despite being denied refugee status. This amendment allows such persons to apply for adjustment to permanent resident if they were inspected and paroled between Aug. 15, 1988 and Sep. 30, 2001.
Polish and Hungarian Parolees
This is a special adjustment program with no application deadline for Hungarian and Polish nationals paroled into the U.S. between Nov. 1, 1989 and Dec. 31, 1991 after being denied refugee status.
Chinese Student Protection Act
Certain nationals of China previously qualified for adjustment of status under this law if they were present in the U.S. some time between June 5, 1989 and Apr. 11, 1990 and applied for this benefit before June 30, 1994. This law is relevant today because a spouse or child whose relationship to the principal alien was established prior to the approval of the principal’s adjustment may be accorded the derivative priority date and preference category of the principal alien.
Haitian Refugee Immigration Fairness Act
This law allowed certain Haitian nationals residing in the U.S. since Dec. 31, 1995 to apply for permanent residence. The application deadline was Mar. 31, 2000. Currently, only depends are able to apply for permanent residence under this law. Dependents include the spouse, minor child, or unmarried son or daughter 21 years or older who are Haitian nationals and are admissible to the U.S. They must be physically present in the U.S. at the time of fling. In addition, an unmarried son or daughter 21 years or older must have been physically present in he U.S. for a continuous period beginning no later than Dec. 31, 1995, and ending not later than the date the application is field (absences totaling 180 days or less allowed).
Adjustment of Status for Certain Aliens from Vietnam, Cambodia, and Laos
A citizen or native of Vietnam, Cambodia, or Laos is eligible to adjust to permanent resident status if he or she:
- was inspected and paroled into the United States before Oct. 1, 1997;
- was physically present in the United States prior to and on Oct. 1, 1997;
- was paroled into the United States: (a) From Vietnam under the auspices of the Orderly Departure Program; (b) From a refugee camp in East Asia; or (c) From a displaced persons camp administered by the United Nations High Commissioner for Refugees in Thailand; and
- applies for adjustment of status during the period beginning on Jan. 27, 2003 and ending on Jan. 25, 2006.
Private Congressional Bill
Each year, Congress passes a very small number of private immigration bills granting permanent residence to individuals. Private bills are rare and are reserved for the most compelling cases. The immigration subcommittees of the House and Senate have detailed rules on what is required for introduction of a private bill.
Legal Immigration and Family Equity (LIFE) Act Legalization
Under the LIFE Act, a person is eligible for permanent residency if: (1) on or before Oct. 1, 2000 they file a written claim for class membership in the CSS v. Meese, LULAC v. Reno, or INS v. Zambrano class action settlement; (2) they entered the U.S. before Jan. 1, 1982 and resided continuously in the U.S. in unlawful status from that point through May 4, 1988; (3) they were continuously physically present in the U.S. from Nov. 6, 1986 through May 4, 1988; and (4) they demonstrate a minimal understanding of ordinary English and a basic understanding of U.S. government. Applications must be submitted by May 31, 2003.
Legalization under the Immigration Reform and Control Act (IRCA) of 1986
Several class action lawsuits were filed to challenge INS procedures under IRCA:
- Catholic Social Services v. Ashcroft (covering people who did not apply for amnesty because they were told they were ineligible for having traveled outside the U.S. without INS permission)
- Newman (LULAC) v. INS (covering people who did not apply for amnesty because they were told they were ineligible for having traveled outside of the U.S. returned with a visitor’s visa, student visa, or any other type of visa or travel document)
- Proyecto San Pablo v. INS, No. Civ 89-456-TUC-WBD (D.Ariz.) (covering certain applicants for legalization whose applications were denied or whose temporary residence was terminated on the basis that some time during the period beginning before Jan. 1, 1982, and ending on the date the application was filed, the applicant was outside the United States as a result of a departure under an order of deportation).
Registry allows a person to apply for permanent residence if they entered the U.S. before Jan. 1, 1972, have resided in the U.S. continuously since that entry, and have good moral character.
Cancellation of Removal for Certain Non-Permanent Residents
In general: A person in removal proceedings may be granted cancellation of removal upon a showing that:
- they have been physically present in the U.S. for a continuous period of 10 years immediately preceding the date of application.
- they have been a person of good moral character during such period.
- they have not been convicted of certain crimes.
- they establish that removal would result in exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent, or child.
Battered spouse or child: To obtain cancellation, they must show that:
- they were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident spouse or parent or are the parent of a child who was battered or subjected to extreme cruelty by the child’s U.S. citizen or permanent resident parent.
- they have been physically present in the U.S. for three years immediately preceding the date of the application.
- they have been a person of good moral character during such period.
- they are not inadmissible or deportable for certain crimes.
- they or their child would suffer extreme hardship upon deportation.
Nicaraguan Adjustment and Central American Relief Act (NACARA): To qualify, a person must be one of the following:
- they are a Salvadoran national who first entered the U.S. on or before Sep. 19, 1990 and who registered for benefits pursuant to the American Baptist Churches (ABC) settlement agreement or applied for temporary protected status on or before Oct. 31, 1991;
- they are a Guatemalan national who first entered the U.S. on or before Oct. 1, 1990 and who registered for benefits pursuant to the ABC settlement on or before Dec. 31, 1991.
- they are a Guatemalan or Salvadoran national who filed an asylum application with INS on or before Apr. 1990.
- they are the spouse or child of an individual who receives suspension of deportation or cancellation of removal under NACARA (except for individuals who receive relief under this paragraph or the next paragraph) at the time such decision is rendered.
- they are the unmarried son or daughter of an alien parent who received suspension of deportation or cancellation of removal under NACARA at the time such decision is rendered. If the unmarried son or daughter is over 21 at the time such decision is rendered, the son or daughter must have entered the U.S. on or before Oct. 1, 1990.
- they are a national of certain Eastern European or ex-Soviet bloc countries who entered the U.S. on or before Dec. 31, 1990 and who filed an asylum application on or before Dec. 31, 1991. Spouses and unmarried children are also eligible to apply, as well as unmarried sons and daughters age 21 and older who were in the U.S. on or before Oct. 1, 1990.
In addition, in order to qualify under NACARA, the applicant must have been continuously present in the U.S. for at least seven years immediately preceding the date of such application, must have been a person of good moral character during this period, and must establish that removal would result in extreme hardship to the alien or to the alien’s U.S. citizen or permanent resident spouse, parent, or child.