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SISKIND’S IMMIGRATION BULLETIN – FEBRUARY 5, 2000 E-mail subscribers as of February 5, 2000: 24,664 persons (50 states/144 countries). Published by Greg Siskind, partner at the Immigration Law Offices of Siskind, Susser, Haas & Devine, Attorneys at Law; telephone: 800-748- 3819, 901-737-3194 or 615-345-0225; facsimile: 800-684-1267, email: email@example.com, WWW home page: http://www.visalaw.com. SSHD serves immigration clients throughout the world from its offices in the US, Canada and the People's Republic of China. To schedule a telephone or in- person consultation with the firm, go to http://www.visalaw.com/intake.html. Writers: Amy Ballentine and Greg Siskind. To receive a free e-mail subscription to Siskind's Immigration Bulletin, fill out the form at http://www.visalaw.com/subscribe2.html. To unsubscribe, send your request to firstname.lastname@example.org. To subscribe to the free Siskind's Immigration Professional Newsletter, go to http://www.visalaw.com/sip-intro.html. DOWNLOAD THE ENTIRE NEWSLETTER IN PDF FORMAT. 1. A MESSAGE FROM SISKIND, SUSSER, HAAS & DEVINE 2. AMERICAN IMMIGRATION LAWYERS ASSOCIATION CONDEMNS RECENT H-1B RAID 3. MORE DEVELOPMENTS IN ELIAN GONZALEZ CASE 4. AMERICAN IMMIGRATION LAW FOUNDATION SEEKS PLAINTIFFS FOR LAWSUIT TO FORCE HEALTHCARE WORKER REGULATIONS 5. FEDERAL COURT UPDATE 6. FEDERAL JUDGE DECLARES INDEFINITE DETENTION UNCONSTITUTIONAL 7. BORDER NEWS 8. THE ABCs OF IMMIGRATION– E-1 TREATY TRADER VISAS 9. GOVERNMENT PROCESSING TIMES 10. INS DETAINEES REMOVED FROM NEW HAMPSHIRE JAIL AFTER ALLEGATIONS OF SEXUAL ABUSE BY GUARDS 11. MEXICAN CHILD SUES US GOVERNMENT FOR TREATMENT WHILE IN DETENTION 12. LANDLORD INDICTED FOR ROLE IN IMMIGRATION SEX SCANDAL 13. SAN FRANCISCO MOVES TO PROTECT UNDOCUMENTED IMMIGRANTS IN SAME-SEX RELATIONSHIPS WITH US CITIZENS 14. AGRICULTURAL WORKERS SUE TIMBER COMPANIES FOR WAGE VIOLATIONS 15. CALIFORNIA LEGISLATORS WANT LAWS TO PROTECT IMMIGRANTS FROM FRAUD 16. STATE DEPARTMENT ISSUES NEW ADDRESS FOR VISA REVALIDATION AND REISSUANCE APPLICATIONS 17. INS PROPOSES USING PRIVATE CONTRACTOR TO REVIEW EMPLOYMENT AUTHORIZATION 18. TANZANIAN NURSE SEEKS ASYLUM TO AVOID FEMALE CIRCUMCISION 19. EFFORT TO MAKE VISA APPLICATIONS EASIER FOR CUBANS ALMOST THWARTED 20. GUEST ARTICLE - US IMMIGRATION LAW OVERVIEW – BY STEVE YALE-LOEHR ____________________________________________ 1. A MESSAGE FROM SISKIND, SUSSER, HAAS & DEVINE Dear Readers: Finally. This coming week the first serious legislative push to raise the H- 1B cap since the 1998 H-1B legislation will begin this week with the introduction of a bill in the Senate that will raise the cap and may also contain provisions to exempt certain people from the cap all together. We’ll tell you what we know in this issue. We plan on updating our H-1B Emergency Update page at http:/www.visalaw.com/intake.html frequently and will provide detailed information on the legislation there as soon as it is available. The Elian Gonzalez saga continues as well. The case continues to divide the nation (not to mention immigration lawyers). Congress has gotten into the act and the legislature may take the rare step of passing a bill to grant the young Cuban American citizenship. And lest you think that Congress is only interested in H-1Bs and Cuban minors, there are other immigration bills that will come up this year. We preview a few of them in our Legislative Update article. We also report on a shocking mass arrest by the INS of 40 Indian computer programmers in San Antonio, Texas. The workers were arrested at a US Air Force base where they were working, handcuffed in front of all of their American co-workers and then detained by the INS. The charge – Labor Condition Applications that allegedly failed to list the location of their work site. And, as always, we remind our readers that this publication is produced by SSHD, a law firm serving clients in all 50 states as well as Canada. Readers are welcome to request telephone or in person consultations with our firm’s lawyers. Just go to http://www.visalaw.com/intake.html to learn more. We are normally able to schedule appointments within two business days of making a request and you can actually choose your appointment time online. Greg Siskind and Amy Ballentine ____________________________________________ 2. AMERICAN IMMIGRATION LAWYERS ASSOCIATION CONDEMNS RECENT H-1B RAID The American Immigration Lawyers Association (AILA) has written a letter to the INS Associate Commissioner for Field Operations criticizing the recent INS raid at Randolph Air Force Base during which 40 H-1B computer consultants, all Indian nationals, were arrested and detained. The letter outlines a number of problems with the raid, from the way in which it was conducted to its legal basis. AILA points out that in the area of computer consulting, a position is rarely of long duration. Therefore, the place where the worker is needed when the H-1B petition is filed is not necessarily going to still need workers when the petition is improved. This situation is made even worse because of lengthy INS and Department of Labor delays. Because it is unclear where an H-1B computer consultant will work when the petition is eventually approved, AILA argues that for the employer to use any worksite address other than their own would be inappropriate. AILA also takes the position that the INS’s actions in conducting the raid were illegal. The INS ties the need to file a new H-1B petition because of a change in job location to whether the Department of Labor requires a new labor condition application. In 1996, Department of Labor regulations on short-term placement of workers were invalidated, leaving no requirement for the filing of a new labor condition application for short-term placement. Therefore, amended H-1B petitions were not required. As more stories from those involved come out, the incident looks even uglier than it did initially. INS officials apparently used racial and ethnic slurs in addressing the Indians. Even worse, they did not detain workers of other nationalities who did not have their immigration documents with them. While in detention, INS workers offered them only beef tacos while clearly indicating their awareness that the Hindu detainees were vegetarian. The INS is clearly not pleased with the results of the raid, and has withdrawn control of the case from the San Antonio office responsible for the raid, and transferred it to Dallas. The agency’s actions have also prompted statements from both the State Department and President Clinton. The administration has expressed its “deep regret” over the incident, and the Assistant Secretary of State for South Asia has apologized to the Indian Ambassador for the INS’s treatment of the Indian nationals. Both the State Department and the Indian Ambassador have requested a report from the INS about the incident. ____________________________________________ 3. MORE DEVELOPMENTS IN ELIAN GONZALEZ CASE The federal judge assigned to hear the case brought by the Miami Gonzalez family has moved up by two weeks the first hearing in the case. It will now occur on February 22. This is not actually the custody case. Rather, it is a claim that the INS violated Elian’s constitutional rights by refusing to hear the asylum claim filed on his behalf. Among the issues that must be decided at this hearing is whether the federal court has jurisdiction to review the denial of the asylum petition, and whether Lazaro Gonzalez, Elian’s great-uncle who filed the suit, has the legal standing required to request asylum on his behalf. In his order moving up the hearing date, the judge also sharply criticized the attorneys representing Elian. These attorneys have been giving extensive interviews in which they have been critical of the government. The judge ordered the attorneys to cease talking about the case outside of court. A hearing is still scheduled for March 6 in Florida family court, at which a final custody decision will be made. On January 10 the family court awarded Lazaro Gonzalez temporary custody. Elian’s father, Juan Miguel Gonzalez, this week sent a letter to Attorney General Janet Reno and INS Commissioner Doris Meissner asking that Elian be cared for by another family member as long as he remains in Miami. He expressed his concern that in Elian’s current situation, too many people who are not family members are allowed to manipulate him. Legislation has been introduced in both the House and Senate to grant Elian citizenship, but it seems to have lost momentum as the case has dragged on. Originally the legislation was to be fast-tracked, but as opposition to it has grown within Congress, it seems a vote will be delayed until after the court hearings. ____________________________________________ 4. AMERICAN IMMIGRATION LAW FOUNDATION SEEKS PLAINTIFFS FOR LAWSUIT TO FORCE HEALTHCARE WORKER REGULATIONS In 1996, Congress passed legislation requiring the creation of regulations for foreign workers in seven healthcare fields. Regulations were finally passed in 1998 for nurses and occupational therapists after a lawsuit was filed by the American Immigration Law Foundation (AILF). To force the enactment of regulations for the remaining five categories, AILF is again seeking to bring a lawsuit in federal court. AILF is looking for people who fall into one of the following categories: • Physical therapists, speech/language pathologists, medical technologists, medical technicians and physician’s assistants who filed a I-485 before September 30, 1996; • Hospitals and health care providers who have been hurt by the INS’s failure to issue regulations • Children of healthcare workers who will turn 21 in 2000 • Healthcare workers who have been separated from their family because of the lack of regulations These regulations are needed to implement the 1996 law. This law makes an immigrant healthcare worker excludable from the US, and if in the US ineligible to adjust status, unless they have a certificate from the Commission on Graduates of Foreign Nursing Schools, or a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services. If your meet the criteria outlined above and are interested in learning more about participating in the suit, please contact Greg Siskind by emailing him at AILFemail@example.com. ____________________________________________ 5. FEDERAL COURT UPDATE Alanis-Bustamante v. Reno, Eleventh Circuit In this case, the court ruled that for purposes of applying the 1996 immigration laws, a person is placed in deportation proceedings when the INS issued them an order to show cause. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) made many fundamental changes to immigration law. It also changed the names of many things that are still otherwise the same. For example, deportation became removal, and an order to show cause – the document the INS issued to initiate deportation proceedings – became a notice to appear. IIRAIRA also implemented two sets of new rules for appealing a deportation order. One set, the transitional rules, is applied to cases that were started before April 1, 1997, when the IIRAIRA went into effect. Permanent rules apply to cases begun after that date. Bustamante was convicted of possession with intent to distribute marijuana in 1994. In 1995, while still in prison, he was served with an order to show cause and a warrant of detainer, a document that gives the INS the authority to take custody of a person. The INS did not, however, file the order with an Immigration Court, which, under INS regulations is necessary to commence formal proceedings. In June 1997, the INS filed a notice to appear. The Immigration Judge found him removable and ineligible for a waiver of deportation because the 1996 laws eliminated it for those with drug convictions. The Board of Immigration Appeals affirmed. Bustamante filed a petition for a writ of habeas corpus with the district court. The district court dismissed the petition, finding that IIRAIRA had eliminated habeas corpus jurisdiction in cases brought to challenge deportation and removal orders. Bustamante then appealed to the Eleventh Circuit. The resolution of this case depended on when INS proceedings against Bustamante were started – in 1995 when he was issued the order to show cause and the warrant of detainer, or in June 1997 when the INS filed a notice to appear with the Immigration Court. If the proceedings began in 1995, habeas corpus relief would still be available. If they began in 1997, there could be no habeas corpus relief. Bustamante argued that proceedings against him began in 1995, and the INS, of course, argued that they did not begin until 1997. The court found that the order to show cause plus the warrant of detainer were sufficient to commence proceedings against Bustamante. As soon as the INS issued the order to show cause, it had the authority to arrest him. Moreover, the warrant of detainer meant that even after Bustamante was released from prison, he was subject to INS detention. Therefore, proceedings began in 1995, making Bustamante subject to the transitional rules, under which an action in habeas corpus is available. The case was sent back to the district court, which will now decide whether Bustamante is eligible for a waiver of deportation. ____________________________________________ 6. FEDERAL JUDGE DECLARES INDEFINITE DETENTION UNCONSTITUTIONAL Since the implementation in October 1998 of a requirement that the INS detain certain criminals, indefinite detention has become one of the most litigated immigration issues. Under the law, the INS is to detain aliens convicted of certain crimes until they are deported. For nationals of countries with which the US does not have repatriation agreements, the law has resulted in detention without any foreseeable end. The results of lawsuits challenging indefinite detention have been fairly evenly split. Some judges find the practice constitutional, and others believe that it violates the detainees’ constitutional rights. A federal district court judge in Los Angeles is the latest to join those who have ruled that indefinite detention is unconstitutional. This case started with petitions for habeas corpus filed by a number of people in indefinite detention. All of the cases were consolidated so that one judge could render a single decision that would be applied to each case. The INS first argued that the detainees had not exhausted all of the remedies provided by the INS. The judge rejected this argument. Usually administrative remedies must be exhausted before a petition for a writ of habeas corpus can be filed, but there is an exception if pursuing that remedy would not provide an opportunity to present the constitutional arguments. INS regulations do allow an indefinite detainee to seek release, and to appeal an unfavorable decision to the Board of Immigration Appeals. The judge found these procedures insufficient. First, the judge found that the regulations and accompanying INS policy statements did not provide due process. Second, the INS’ failure to provide meaningful review when requested violated the detainees right to procedural due process. There are two types of due process – procedural and substantive. Procedural due process refers to the procedures that must be observed before government action can be taken. Substantive due process deals with actions that the government simply cannot take, regardless of the procedural protections available. The court in this case found that the procedures for indefinite detention were inadequate, violating the detainees’ right to procedural due process. It also found that indefinite detention violated substantive due process by denying the detainees their fundamental right to liberty. Substantive due process inquiries are guided by the type of private interest at issue. A person’s interest in being free from confinement is fundamental. Therefore, government actions to deprive a person their liberty must be “narrowly tailored” to further a “compelling government interest.” In the context of indefinite detention, this means that the detention cannot be for purposes of punishment, but must be designed to meet a regulatory goal. The INS gave three goals it was trying to meet through indefinite detention: first, to ensure that the deportation did occur; second, to prevent flight before the deportation occurs; and third, to protect the public. The court found that only the first goal was permissible for the INS because it was the only one related to immigration, and that the second two were only incidentally related to the first. The court found that when deportation is unlikely to occur, automatic detention violates substantive due process. When deportation is unlikely, the only way to continue detention is by placing the alien in involuntary commitment proceedings. When there is still a possibility that deportation will occur, the INS can continue detention, but only if it provides sufficient procedural protections. The judge outlined four protections that must be provided in a determination to continue detention. First, the INS must bear the burden of proving the need for continued detention by clear and convincing evidence. It may use evidence of flight risk and danger to the community in this hearing. Second, the detainee is entitled to the assistance of an attorney at the hearing. Third, the detainee has the right to examine the evidence against them, the right to cross-examine witnesses, and to present evidence and witnesses of their own. Fourth, if the government cannot show the need for continued detention, release must be granted. This release may be made contingent on certain requirements, such as the posting of a bond and reporting periodically to the INS, to ensure they remain available for deportation, if and when it occurs. This decision means that the cases of over 130 detainees being held in this district must be given hearings on whether their detention should be continued. The INS has not announced whether it will appeal, but it is unlikely they will because the same issue is scheduled to be heard by the Ninth Circuit later this month. Cases from federal court in Los Angeles are appealed to the Ninth Circuit. ____________________________________________ 7. BORDER NEWS The murder trial of four New York City police officers accused of gunning down Amadou Diallo, an immigrant from West Guinea, has begun in Albany, New York. The shooting, which occurred almost one year ago, sparked many protests, with a number of civil rights leaders claiming that racial discrimination was a major factor in the incident. ********* As security along the southern border grows increasingly tight, immigrants take more and more desperate measures to enter the US. One of the most dangerous ways to enter the US is by swimming the New River, which runs from Mexicali, Mexico, across the border to Calexico, California, and then into the California desert. What makes this river so dangerous, apart from the strong currents, is that it is one of the most polluted rivers in the US. The river is full of toxic chemicals, and swallowing the river water can make a person seriously ill. Despite the danger, it is becoming a popular crossing point – already this year over 100 people have entered the US by swimming the river. ********* January was the busiest month on record for the Tucson Sector of the Border Patrol, with over 70,000 apprehensions. The previous record was 60,537 apprehensions in March 1999. The Tucson Sector covers almost the entire Arizona border, about 300 miles in all. Within the sector, Douglas was the busiest station, with over 30,000 apprehensions. ********* Last weekend, five Indian nationals, all adherents of the Sikh religion, were arrested after illegally crossing the border in Arizona. They have requested an asylum hearing, claiming they will be subjected to persecution because of their religious beliefs if forced to return to India. ********* The St. Martin Parish Jail in Louisiana, the place where seven Cuban detainees took the warden and several guards hostage in December, is again holding INS detainees. Currently there are 21 detainees being housed in the jail, and more are expected to arrive in the following weeks. One reason the jail is willing to continue housing detainees is that the INS pays $45 a day for each detainee, more than twice the amount paid by the state to house state prisoners. ____________________________________________ 8. THE ABC’S OF IMMIGRATION – E-1 TREATY TRADER VISAS E-1 Treaty Trader Visas are available to people who will enter the US solely to carry on substantial trade, including trade in services or trade in technology, principally between the US and the foreign country of which the person is a national. The US and the trader's home country must have a ratified treaty of “friendship, commerce, and navigation,” or have some other diplomatic agreement that allows for treaty trader status. At least 50% of the ownership of the trading firm must be in the hands of nationals of the visa applicant's home country. To be eligible for an E-1 visa the person should be an owner, manager, executive, or hold an “essential” position within the company. The applicant must also be a national of the treaty country. Some of the most important requirements for an E-1 visa include the following: • The trading company must be “trading.” “Trading” can include the exchange, purchase, or sale of goods or services, as long as the goal of the trade is the development of international commercial trade between the US and the treaty country. • The trading must involve an actual exchange of qualifying commodities (including goods, services, or money) and the consideration must be traceable or identifiable. A transfer of title must pass from the trader of one nationality to the trader of the other. • Trade between the foreign company and the US must already exist. The visa applicant should be prepared to document existing and past contractual trade relationships. • The trading company must be engaged in “substantial” trade with the US. The visa applicant must show numerous transactions over time and a significant monetary value of business. There is no statutory minimum amount of trade, but the visa applicant should at least be able to show the volume of trade is enough to support the business as well as the visa applicant and his or her family. Consulates are cautioned, however, not to deny visas to small business people so long as there is continuing trade between the US and the treaty country. • Over 50 percent of the total volume of the company’s trade must be between the US and the treaty country. Applications for E-1 visas are made directly to the US consulate and not through the INS, unless the applicant is in the US in another visa status and seeks to change to an E-1 visa. Each consulate has its own version of an E visa questionnaire form and most require extensive documentation accompanying the application. The length of time the visa will be issued is determined by agreements between the US and the Treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-1 status. Spouses and children of E-1s are entitled to visas as well. E-1 family members will not be deported because they accept employment, but they will be considered out of status and ineligible to change status in the US. Without section 245(i) they will not be able to adjust status in the US. The following countries have ratified trade treaties with the US and their nationals are eligible to apply for E-1 status: Argentina Australia Austria Belgium Bolivia Bosnia Brunei Canada China (Taiwan) Colombia Costa Rica Croatia Denmark Estonia Ethiopia Finland France Germany Greece Honduras Iran Ireland Israel Italy Japan Korea Liberia Luxembourg Mexico Netherlands Norway Oman Pakistan Paraguay Philippines Spain Suriname Sweden Switzerland Thailand Togo Turkey United Kingdom Yugoslavia (includes Bosnia-Herzegovina, Croatia, Macedonia, Slovenia, and Serbia-Montenegro, which even though it is not recognized by the US, is bound by its treaty obligations.) ____________________________________________ 9. GOVERNMENT PROCESSING TIMES Local INS Office Processing Times Last Updated 20 November 1999 Permanent Naturalization Advance Residence Work District or Filing Until Parole Filing Until Authorization Suboffice Swearing In Approval Approval Approval (4) (2) (3) I-485 (1) Albuquerque 365-740 365-540 14-21 14-21 Atlanta 450-540 365-540 30-45 90 Baltimore 365-540 365-540 1-14 14 Boston 180 n/a 1 1 Buffalo 200-300 365-390 2-15 1-14 Charlotte 730 240-1095 30-60 80-90 Chicago 540-720 540-840 1 21 Cincinnati 360-450 150-510 21 1 Dallas 810-840 600-660 45-60 150-180 Denver 660-720 180-240 2-5 42-65 Detroit 450-480 480-540 45-60 60-90 El Paso 870-910 730-910 15-20 15-20 Harlingen 910 760 162 91 Honolulu 240-300 30-60 3-7 1 Houston 980-1200 455-545 30 90 Indianapolis 180-365 180-365 1-21 1 Kansas City 420-540 210-450 21 1 Louisville 480-600 600-720 21-30 21-30 Los Angeles 730-920 300-365 30-60 30-45 Memphis 630-690 390-450 18-40 80-100 Miami 540-720 540-720 2-4 80-90 Milwaukee 820-950 365-981 35-45 30 Newark 390-450 270-570 1 90-150 New Orleans 270-450 270-500 7-14 20-90 New York 540 450-810 80 75 Oklahoma City 360-420 330-420 30-60 30-60 Omaha 545-730 365-455 20-30 20-30 Orlando 540 720 50 90 Phoenix 1140-1260 990 4-5 90 Philadelphia 75 330-365 4-7 1-2 Portland 1050 240 21-30 21-30 Sacramento 570-630 290-1800 1-5 1 Salt Lake City 493-700 300-365 14 48-50 San Antonio 500-540 360-385 45-60 45-60 San Diego 860-900 510-720 50-60 80-90 San Francisco 450 365-420 1-14 1-7 San Juan 548 180-365 10 1 Seattle 120-180 360-390 10-20 20-30 St. Paul 365-540 240-300 3-6 1-3 Tampa 500-600 365-900 10-14 90-120 Wash, DC 365-420 180-420 10-21 30-45 (Arlington) Further Instructions of 1-4: (1) I-485 Filing Until Approval (2) Naturalization Filing Until Swearing-In (3) Advance Parole Approval (4) Work Authorization Approval Source: American Immigration Lawyers Association (not approved by INS) Consular Post Processing Times NVC – IV (Family) IV (Emp’t) NIV (gen.) E-1 Post Beijing  Varies N/A N/A Same Day N/A C. Juarez ** 2 months 2 months Same Day 2-3 weeks Frankfurt **  4-6 weeks 2-4 weeks 10-21 days 2-3 weeks  Islamabad 90 days 2-4 weeks 4-6 weeks 2-3 weeks 2-3 weeks London  30 days 7-21 60-90 3-10 14-21 days (London days (seasonal) 1- INS) or 21- 8 days 28 days(US (courier) INS) Manila 30-60 1 Year 30-90 21 Days  Unavailable Days Days Tel-Aviv 2-6 weeks 2 weeks  2 weeks 3 days 2 weeks (travel agent) 2 weeks (walk-in) Tokyo  5 days  10-20 days 10-20 5 days 20-25 days  days FOOTNOTES  For H and L visas, Beijing requests the original approval notice plus an attorney certified copy of the supporting documents. If the application is granted, the applicant can go to the last window and within 15 minutes the visa will be issued.  Basically irrelevant, as file is sent from NVC to post usually before or simultaneously with Packet 3 transmission from NVC to attorney. (What counts, of course, is file transfer from INS Service Center to NVC).  Depend on whether immediate relative or not, as no request for visa number from VO need be made of IR case. In IR cases, can be as early as 2- 4 weeks after Packet 3 received if requested by attorney and post scheduling permits; normally about 4-6 weeks. Is preference category, whether family or employment based, two months after receipt of Packet 3 if Packet 3 received by 15TH months (e.g., if Packet 3 received March 10, then interview in May).  In order for Embassy London to accept an application from an individual physically present in the United States, he/she must meet the following criteria: 1. Applicant must be normally resident in the United Kingdom; 2. Applicant must have entered the United States in a petition – based visa category, i.e, H, L, O, or P, or in treaty / investor status. 3. Applicant must be in valid status in the United States in one of the above visa categories. Applicants who entered the United States in B, F, I, M, Q or R status, as well as those who entered under VWPP, are ineligible to apply for a visa from the United States.  The U.S. Embassy in Manila has announced that, as of December 6, 1999, they will no longer accept nonimmigrant cases on a walk-in basis. Make an appointment by calling 1-909-101-0000 in Philippines. There is current a three-week wait for appointments, but this period will probably lengthen as we approach the holidays. Applicants may make the appointments before receiving the I-797 approval notice, but must present the original I-797 approval notice at the time of the interview (along with a copy of the I-129 and supporting documents submitted to INS). If the I-797 is not received in time for the interview, the interview may be postponed by calling the appointment line.  According to the Consul, “For petitions filed here at post, we often give packets 3 & 4 simultaneously at the window, particularly in immediate relative cases; in cases where applicants appear documentarily qualified, we accept a petition, schedule an appointment, and if we have an FBI check, issue a visa, all within one week.”  Interviews are generally not required. For B-1/B-2, a strong supporting letter should be submitted to show necessity of a visa in view of the fact that visa waiver is available.  E-1 processing time are generally shorter for companies that have already been issued E visas, and longer for smaller businesses involving an individual proprietor. Osaka/Kobe processes E visas in 5-10 working days.  Vice Consul Colleen F. Stack has recently replaced John Martin in the IV Section. She is ably assisted by Mr. T. Suzuki who is the Chief Clerk of the IV Section. Both Tokyo and Osaka/Kobe will accept NIV applications by mail provided that the applicant is in status. Tokyo will accept a copy of the passport initially on these applications by mail and then will request the passports when the visa is ready to be issues. Both posts have a special bilingual OF- 156 with instructions and a provision for the prepayment of the MRV fee of $45.00 payable in yen equivalent at any branch of the Bank of Tokyo- Mitsubishi. Source: American Immigration Lawyers Association ____________________________________________ 10. INS DETAINEES REMOVED FROM NEW HAMPSHIRE JAIL AFTER ALLEGATIONS OF SEXUAL ABUSE BY GUARDS Over 250 INS detainees have been removed from the Hillsborough County Jail in New Hampshire after allegations that some of the guards sexually abused female detainees. If such conduct did in fact occur, it could result in the filing of rape charges against the guards because the guards’ position of power makes it impossible for a female inmate to consent. The alleged incident is being investigated by the FBI and the US Attorney’s office. According to Steve Farquharson, the District Director of the INS Boston Office, the detainees were removed at the request of the US Attorney in New Hampshire, who expressed concerns for their safety. Hillsborough County officials say they were removed because the INS was delaying payments to the county for housing them. The INS pays the jail $65 a day to house the detainees. This equals over $5 million a year, more than half the jail’s budget. It also seems the removal of the detainees did not go smoothly. When INS officials arrived to remove the female detainees, explaining that they were being removed for their safety during the pending investigation, the superintendent of the jail, James O’Mara, told the INS that it could take its “federal detainees and $6 million and shove it.” He then told the INS that they could not take the female detainees without also taking 50 men, and he would choose them, not the INS. The INS had to call the state Attorney General to explain to O’Mara that what he wanted to do was illegal. Even after this O’Mara continued to be uncooperative. This is why the INS removed all of its detainees, because it “decided we no longer had confidence in the facility and its management.” Detainees have complained of their treatment at this facility before. Last August, detainees went on a hunger strike, claiming they were denied needed medical treatment and locked in their cells for over 20 hours a day. Further adding to the jail’s problems is the fact that the investigation into the charges of sexual abuse comes only days a state investigation into the recent death of an inmate began. ____________________________________________ 11. MEXICAN CHILD SUES US GOVERNMENT FOR TREATMENT WHILE IN DETENTION With the case of Elian Gonzalez, much new attention has been given to the plight of unaccompanied minors who come to the US without documentation. By now most people know that the vast majority of these children are not accorded the treatment Elian has received, but few children go through what Giovani Abel Gomez says he endured. At age six, in 1997, Gomez attempted to cross the border at Douglas, Arizona with an adult friend of his family. After being apprehended, he should have been released into the custody of his mother who went to Douglas as soon as she heard her son was there. This, according to the attorney representing the boy, is not what happened. Apparently the boy was taken to the Southwest Key Program, a detention center that houses unaccompanied minors. While there, a lawsuit filed on behalf of the child alleges, he was molested. This detention center has been the subject of criticism before. In 1997 a report released by the Children’s Rights Project, run by Human Rights Watch, the center does not follow INS regulations on the treatment of minors. ____________________________________________ 12. LANDLORD INDICTED FOR ROLE IN IMMIGRATION SEX SCANDAL Lakireddy Bali Reddy, a Berkeley, California landlord who has been at the center of an investigation by the INS for his alleged involvement in a scheme to bring in workers using fraudulent documents and to bring in underage girls for illegal sexual purposes, has now been indicted by a federal grand jury. According to the indictment, workers that were to be given programming jobs were instead put to work in Reddy’s restaurants. Reddy also allegedly faked family relationships between the workers and the girls so they could come to the US as dependents. Reddy’s son has also been indicted. Authorities say his company, Active Tech Solutions, was used as a front to obtain visas. The investigation into Reddy started when one of the girls with whom he allegedly had a sexual relationship died of carbon monoxide poisoning in one of his apartments. If he is convicted on all counts of the indictment, Reddy faces up to 70 years in prison and a fine of $1 million. ____________________________________________ 13. SAN FRANCISCO MOVES TO PROTECT UNDOCUMENTED IMMIGRANTS IN SAME-SEX RELATIONSHIPS WITH US CITIZENS The San Francisco Board of Supervisors, the city’s legislative body, is preparing to pass a law that would establish a “City of Refuge” for undocumented immigrants who are in same-sex relationships with US citizens. Specifically, the law would bar city employees from assisting federal authorities in efforts to deport such people. Leslie Katz, the sponsor of the legislation, proposed it because US immigration laws deny same-sex partners the right to immigrate, even though “the fundamental principle of immigration law is family unification.” Because US law does not allow same-sex marriages, such couples do not have the rights a bi-national heterosexual couple has, where a US citizen spouse can petition for permanent residence for their spouse. The law has the support of all 11 members of the Board of Supervisors. Thirteen countries allow same-sex partners to immigrate through a citizen spouse. Most Western European countries allow it, as do many English speaking countries, including Australia, Canada, New Zealand, and South Africa. There are efforts to change US policy, including a bill to be proposed later this month by Rep. Jerrold Nadler (D-NY) that would give same-sex couples the same immigration rights as heterosexual couples. San Francisco has adopted similar laws in the past. A law passed in 1989 barred city employees from assisting the INS in the deportation of any undocumented person. The law was amended in 1993, after the state threatened to withdraw funding for criminal justice programs, to allow city law enforcement officials to notify the INS when they have custody of a felon they believe does not have authorization to be in the US. ____________________________________________ 14. AGRICULTURAL WORKERS SUE TIMBER COMPANIES FOR WAGE VIOLATIONS A group of foreign workers, most of whom are Mexican nationals, have filed suit against three large timber corporations. The workers, who were here on H-2A visas for temporary agricultural work, claim they were not paid the prevailing wage by International Paper, Georgia-Pacific, or Champion International Corporation. The H-2A program requires that the US employer pay the foreign workers at least the prevailing wage received by US workers doing the same job. According to the complaint, not only were the workers not paid the prevailing wage, they were also not paid overtime. According to attorneys familiar with this area of immigration law, there could be as many as 6000 workers who are eligible to join the lawsuits against these three companies. They estimate the possible recovery to be in the millions of dollars. ____________________________________________ 15. CALIFORNIA LEGISLATORS WANT LAWS TO PROTECT IMMIGRANTS FROM FRAUD Last week we reported on efforts underway in Arizona to make immigration “consultants,” often called notarios, accountable for the damage they often do to people’s status in the US and opportunity to reside here legally. Lawmakers in California are taking similar steps to protect the state’s immigrants, legal and otherwise, from unscrupulous people who would take advantage of their situation. On January 1st a new law went into effect that raises the bond that must be posted by immigration consultants from $25,000 to $50,000. Over the next few months, prosecutors in Los Angeles will conduct investigations to identify those consultants who have not paid the increased bond, as well as for those who have not posted any bond at all. Only a few days later, the Mexican Consulate in Los Angeles began assembling a team of private lawyers to offer advice to those who have been victimized by bogus consultants. One legislator has proposed increasing the fine for perpetrating such fraud from $10,000 to $100,000. Officials hope to reduce the rate of this sort of fraud, which has been steadily increasing over the past few years. Prosecutors in particular are stressing that they want to prosecute fraudulent consultants, not report undocumented people to the INS. ____________________________________________ 16. STATE DEPARTMENT ISSUES NEW ADDRESS FOR VISA REVALIDATION AND REISSUANCE APPLICATIONS The State Department Visa Office has changed the addresses to which applications for visa revalidation and reissuance should be sent. One address is for applications sent by regular mail, and the other for those submitted by courier service. Regular mail: US Department of State/Visa P. O. Box 952099 St. Louis, MO 63195-2099 Fax: 202-663-1608 Courier Service US Department of State/Visa (Box 2099) 1005 Convention Plaza St. Louis, MO 63101-1200 Fax: 202-663-1608 Cases that the Visa Office has denied that are being returned with additional documentation should be sent to: Department of State CA/VO/P/D 2401 E Street, N.W. Room L-701 Washington, D.C. 20522-1016 The Visa Office treats these cases as new applications, meaning they start at the beginning of the reissuance process, not where they would have been if they had not been denied. ___________________________________ 17. INS PROPOSES USING PRIVATE CONTRACTOR TO REVIEW EMPLOYMENT AUTHORIZATION In 1998, the INS announced a large-scale investigation into the meatpacking industry in the Midwest. This investigation, known as Operation Vanguard, was halted last summer after the Social Security Administration refused to open its records to the INS. Social Security was concern that the INS’ plan to check information on all workers using social security records was a privacy violation. While talks between the INS and the Social Security Administration are still ongoing, the INS has also been approaching private contractors about doing the checks. Under this plan, the contractor would run information collected by the INS through commercially available databases. According to the INS, one sample review conducted by a potential contractor uncovered 80 workers who were using the social security numbers of dead people. This new plan has not met with favorable reactions from advocacy groups who feel it has the same problems that prompted the Social Security Administration to end its cooperation in the program. They are also concerned that the INS’s plan to check employment authorization of all workers even when there is a reason to believe they are undocumented not only violates the workers’ privacy, but also unfairly targets Hispanics, who make up the bulk of workers in the meatpacking industry. The plan is also opposed by the industry itself, which fears the investigation will drive workers away. _________________________________ 18. TANZANIAN NURSE SEEKS ASYLUM TO AVOID FEMALE CIRCUMCISION Margareth Awiti, a Tanzanian national, came to the US in 1996 on a visitor visa and later applied for asylum. She claims that if she is returned to Tanzania she will be forced to marry the nephew of her late husband, and then will be forced to submit to female circumcision. Her asylum hearing is scheduled for later this spring. She is facing an uphill battle in the Immigration Court. The judge who will hear her application has previously rejected an asylum claim based on female circumcision, a decision that was reversed on appeal. Also, the INS is expending great effort to counter her claims. The agency is seeking experts to dispute her description of what will happen upon her return to Tanzania, and is also seeking family members who will give negative testimony about Awiti’s character. Asylum cases based on female circumcision are relatively rare, but are growing more common. The procedure, which is also known by a more graphic name – female genital mutilation – is performed in unsanitary conditions and causes the women who are subjected to it a lifetime of pain and medical problems. ___________________________________ 19. EFFORT TO MAKE VISA APPLICATIONS EASIER FOR CUBANS ALMOST THWARTED This week there was an immigration related dispute between the US and Cuba that did not involve Elian Gonzalez. US officials at the US Interests Section in Havana accused the Cuban government of blocking new procedures that would make it easier for Cubans to apply for visas. In 1994 20,000 immigrant visas were made available for Cuban nationals. The rules required applications to be submitted by mail. Under the new procedures, which US officials said Cuban officials agreed to, applicants would be able to submit their application via a drop box at the US Interests Section. Fortunately, this latest disagreement was quickly resolved and the new procedures should go into effect in the next few weeks. It is not known if this incident was fueled by the Elian Gonzalez situation, but given its prominence in US-Cuba relations over the past two months, it was most likely on everyone’s mind. ________________________________ 20. US IMMIGRATION LAW OVERVIEW By Stephen Yale-Loehr and Jessica Bellinder Table of Contents 1.1 Introduction/Overview 1.2 The Constitutional Sources of Immigration Law 1.3 Scope of Immigration Law 1.4 Brief History of U.S. Immigration Law 1.5 How Immigration Legislation is Made 1.6 The Statute 1.7 Regulations 1.8 Agencies Involved in Administering Immigration Law 1.9 Key Concepts/Terms 1.9.1 Alien 1.9.2 Nonimmigrant v. Immigrant 1.9.3 Consular Processing Overseas v. Adjustment of Status in the United States 1.9.4 Entry v. Admission 1.9.5 Exclusion v. Inadmissibility 1.9.6 Removal v. Exclusion/Deportation 1.9.7 Visa v. Status 1.10 Visa Categories 1.10.1 Nonimmigrant (Temporary) Visa Categories 1.10.2 Immigrant (Permanent) Visa Categories 1.11 Refugees/Asylum Seekers 1.12 Admission Issues 1.12.1 Grounds of Inadmissibility 1.12.2 Admission Procedures 1.13 Removal Issues 1.13.1 Grounds of Deportability 1.13.2 Removal Procedures 1.13.3 Expedited Removal 1.13.4 Relief from Removal 1.14 Keeping Immigrant Status 1.15 Citizenship 1.16 Public Benefits/Rights of Aliens 1.17 Conclusion 1.1 Introduction/Overview This article is intended to serve many different purposes. In part it provides a general overview of U.S. immigration law, including how U.S. immigration laws are made and the agencies that implement and enforce immigration law. The article also discusses some of the key concepts in U.S. immigration law. Finally, the article discusses additional topics such as citizenship and public benefits issues. 1.2 The Constitutional Sources of Immigration Law The U.S. Constitution does not contain any specific language that gives either Congress or the President the power to control the entry of foreigners. The Constitution includes provisions giving Congress authority to regulate foreign commerce and to adopt a uniform rule of naturalization, but neither provision mentions immigration directly. By 1875, however, the Supreme Court of the United States had determined that the federal government, as represented by the Congress, has nearly complete power to determine immigration policies, thereby restricting the states from enacting immigration legislation of their own. The Supreme Court views controlling a nation’s borders as an implicit federal power, essential to the establishment and preservation of national sovereignty. 1.3 Scope of Immigration Law U.S. immigration law is primarily concerned with controlling the admission of aliens, including the criteria and means for their selection and the basis and procedure for their removal. Laws set the terms of an alien’s stay in the United States and describe their various rights and benefits and restrictions on their activity. Immigration laws also establish the grounds and procedures for the removal of aliens or, alternatively, relief from removal. They provide for administrative and judicial review of the proceedings involved; and create civil and criminal liability as a means of enforcing immigration controls. The law of U.S. citizenship is traditionally treated as a part of immigration law. Citizenship law deals primarily with how citizenship is ordinarily gained by birth in the United States, or, under certain circumstances, by birth outside the United States when even one such parent is a U.S. citizen. U.S. law also includes provisions for obtaining citizenship by naturalization and its loss by denaturalization. 1.4 Brief History of U.S. Immigration Law The United States has always had an ambivalent attitude toward immigration. While we like individual immigrants, we worry that large numbers of immigrants may hurt our country. During its first 100 years the nation had virtually unrestricted immigration. Large numbers of people were needed in the early years to populate an enormous country and to provide the labor that building a nation demanded. Colonial attempts to limit immigration of "undesirable" persons, paupers, criminals, and those inclined to become "public charges" did not find their way into federal legislation until 1875. Over the years the number of qualitative controls on immigration increased steadily to include people with certain diseases, polygamists, the insane, anarchists and the feeble minded, among others. Congress also enacted overtly racist restrictions to deter immigration from particular regions of the world. 1952 saw the first successful attempt to coordinate all of the existing immigration laws into a single statute, the Immigration and Nationality Act of 1952 (INA). Originally combining "quality control" exclusions with a racist national origins quota system and a preference system for certain categories of immigrants, the INA remains the basic statute for current U.S. immigration law. Since 1952 Congress has enacted several significant amendments to the INA. 1965 saw the end to the racist and controversial national origins quotas and the beginning of per-country quotas instead. That year Congress also reshuffled priorities in the immigrant visa selection system, strengthening the preferences for family members of U.S. citizens and resident aliens. In 1986 Congress passed the Immigration Reform and Control Act of 1986 (IRCA). That law attempted to address the problem of illegal immigration in two ways. First, Congress granted a one-time amnesty for certain out-of-status foreign nationals, enabling them to become permanent residents. Second, Congress imposed employer sanctions on businesses who hired unauthorized workers. IRCA also established requirements for verifying the employment eligibility of workers. That verification is done on Form I-9. The Immigration Act of 1990, often referred to as IMMACT 90, increased legal immigration by 35 percent, enabling more family-sponsored immigration and increasing employment-based immigration, while providing a "diversity" program for immigrants from countries traditionally underrepresented in the U.S. immigrant mix (e.g., Ireland and some African countries). This program is also known as the "green card visa lottery." In 1996 Congress adopted a get-tough attitude toward out-of-status foreign nationals, enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, pronounced IRA-IRA). The 1996 law increased penalties for many immigration violations. The law also affects legal immigrants, nonimmigrants, refugees and others in surprisingly many ways. 1.5 How Immigration Legislation is Made Laws in the United States are started in the U.S. Congress, which is divided into two chambers, the Senate and the House of Representatives. After an immigration bill is introduced in either the House or Senate, it is normally referred to either the Senate Judiciary Committee’s Subcommittee on Immigration and Refugee Policy or the House Judiciary Committee’s Subcommittee on Immigration, Refugees, and International Law. Some bills with important immigration provisions may be referred to other subcommittees, however, or to more than one subcommittee. This happened, for example, with the 1996 and 1997 welfare bills, which had important immigration restrictions. The subcommittees hold hearings on the bill. From there the bill goes to the respective committee, which may make further changes, and which issues a formal report on the bill. Once the full committee votes out its version of the bill, the full House or Senate votes on the measure and may make further changes. From there the bill is introduced in the other legislative chamber, and goes through the same process. Usually bills passed by both the House and Senate differ in language. In that case they go to a joint House-Senate conference committee. This committee issues a Conference Report outlining compromises made between the House and Senate versions of the bill and the committee’s recommendations. The unified bill is sent back to both the House and Senate floors for a final vote. If both houses pass an identical bill it is considered to have passed the Congress and then is sent to the President for approval or veto. If the President signs the bill it becomes law. 1.6 The Statute A statute is an act of the legislature declaring, commanding or prohibiting something. Depending on the context, a statute may mean a single act of a legislature, or a body of acts collected and arranged in a certain scheme. People sometimes refer to a statute as the “black letter law,” meaning that what the statute says is absolute, or in black and white. Unfortunately, like anything written, a statute is usually not as clear as people think or would like. In U.S. immigration law, almost all immigration statutes are enacted at the federal level, by Congress. The main immigration statute, the Immigration and Nationality Act (INA), is codified as Title 8 of the United States Code (U.S.C.). The U.S.C. is the full collection of federal laws of the United States. Different titles of the U.S.C. deal with different subjects. Title 8 of the U.S.C. concerns immigration. New immigration laws usually amend the INA. Thus, you will see references such as "section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, amending INA section 212(a)(9), 8 U.S.C. section 1182(a)(9)." 1.7 Regulations While the INA provides the basic structure of the immigration system, the various governmental agencies that administer the immigration laws promulgate regulations to implement the statute. These regulations are published in the Federal Register, and incorporated into the Code of Federal Regulations (C.F.R.). Such regulations must be consistent, however, with the statute, as well as the U.S. Constitution. The regulations of the Immigration and Naturalization Service (INS) are found in Title 8 of the C.F.R. The State Department’s immigration regulations are in Title 22 of the C.F.R., as are the J-1 regulations issued by the U.S. Information Agency (USIA). The Labor Department’s regulations are in Title 20 of the C.F.R. 1.8 Agencies Involved in Administering Immigration Law The Departments of Justice and State are primarily responsible for administering the immigration laws. The State Department’s Bureau of Consular Affairs and Visa Office perform consular services overseas that include the initial screening and visa issuance or denial to potential immigrants and nonimmigrants. For most nonimmigrant admission categories, the applicant simply applies to a consular officer for a visa and demonstrates his or her qualifications. For a few nonimmigrant categories and nearly all immigrant categories, a "visa petition," usually filed by a U.S. citizen or lawful permanent resident (not by the alien beneficiary who hopes ultimately to receive the visa) must be approved by the INS before the consular officer will consider the case. The petitioner takes the initiative to demonstrate to the INS that certain qualifications are met: for example, that the beneficiary has the family relationship to the petitioner necessary for certain immigrant categories, or that there is an insufficient supply of U.S. workers for the job the beneficiary would fill. Aside from issuing visas, nearly all of the authority to administer and enforce the immigration laws is vested in the Attorney General, who in turn delegates most of her responsibilities to other officials in the Department of Justice (DOJ). The most important DOJ unit for immigration purposes is the INS, headed by a Commissioner. The INS maintains a headquarters office in Washington D.C., as well as four regional service centers and thirty-four district offices throughout the United States and overseas. The district offices, each headed by a district director, as well as the regional service centers, are the basic working units of the INS. Immigration examiners in the district office or at a regional service center rule on a wide variety of matters, including visa petitions, requests for extension of stay filed by nonimmigrants, requests for permission to work filed by nonimmigrants in those categories to which such permission may be granted, and applications for adjustment of status. In addition, the INS controls admission into the United States by inspecting travelers at over two hundred designated ports of entry and by patrolling the border. The second important administrative unit in the DOJ is the Executive Office of Immigration Review (EOIR), which consists of two subunits, the immigration judges and the Board of Immigration Appeals (BIA). The immigration judges conduct removal hearings, while the BIA is an administrative appeals body separate and independent from the INS, and directly accountable to the Attorney General. The BIA decides appeals from decisions of immigration judges. The BIA issues several thousand decisions a year, most of which are not publicly available. These decisions are known as Matter of [last name of alien], or In re [last name of alien]. A few BIA decisions are designated as “precedents,” which means that they are binding on the BIA and immigration judges. Precedent decisions are printed in a series of volumes known as “Administrative Decisions Under Immigration and Nationality Laws of the United States,” or I. & N. Dec. for short. Thus, you may see references to citations such as “Matter of Smith, 21 I. & N. Dec. 123 (BIA 1997).” Appeals from the BIA to the federal courts is possible. 1.9 Key Concepts/Terms 1.9.1 Alien An "alien" is a foreign-born person who is not a citizen or national of the United States. INA section 101(a)(3), 8 U.S.C. section 1101(a)(3). Within U.S. immigration law there are four broad classes of aliens: (1) persons seeking admission to the United States; (2) persons admitted permanently as immigrants (also called permanent residents or green card holders); (3) persons admitted temporarily as nonimmigrants; and (4) undocumented persons or "illegal" aliens who are here without permission from the federal government. Generally, until a person has been admitted to the United States they have virtually no rights under U.S. law. Congress determines who will be admitted. Once they are admitted, however, aliens can claim certain general protections under the Constitution. 1.9.2 Nonimmigrant v. Immigrant Aliens may come to the United States as nonimmigrants or immigrants. The primary distinction between nonimmigrants and immigrants is that most nonimmigrants must intend to return to their country of origin after their period of authorized stay has ended, while immigrants can and normally have the intent to stay permanently in the United States. Nonimmigrants are persons who come temporarily to the United States for a particular purpose (e.g., as students, tourists, diplomats, or temporary workers). An applicant for a nonimmigrant visa usually must convince the INS or consular officer that they do not intend to immigrate to the United States and that they intend to return to their home at the end of their authorized stay. However, the State Department and the INS have long recognized a doctrine of "dual intent." The INS has stated, for example, that the fact that a nonimmigrant visa applicant has "previously expressed a desire to enter the United States as an immigrant-and may still have such a desire-does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant." Matter of H-R-, 7 I. & N. Dec. 651, 654 (INS Reg. Comm’r 1958). Thus the possibility exists for an individual to apply for and receive a nonimmigrant visa after being denied an immigrant visa, or while waiting for an immigrant visa priority date to become current. Receiving a nonimmigrant visa in such circumstances is often difficult, however. Much depends on the facts of the particular case, the credibility of the applicant, and the attitude of the consular or INS decision maker. It is often possible to extend periods of nonimmigrant stay, and under certain circumstances a nonimmigrant may "adjust status" to that of an immigrant, thereby gaining the right of permanent residence. Immigrants are people who have a right to live permanently in the United States. They go by different names: lawful permanent residents (LPRs); green card holders; permanent residents. They all mean the same thing. Aliens generally qualify for immigrant status by having a close family member or employer sponsor them. Once immigrant visa status is approved, they are admitted for lawful permanent residence and are issued an alien registration card ("green card"), which grants them rights of reentry and the right to live anywhere in the United States and to work in any way they choose. Most resident aliens are eligible for U.S. citizenship after five years of residence. However, they need not naturalize, and may maintain lawful permanent resident status indefinitely. 1.9.3 Consular Processing Overseas v. Adjustment of Status in the United States Aliens who qualify for one of the immigrant visa classifications can become permanent residents in either of two ways. They can obtain an immigrant visa overseas at a U.S. consular post in their homeland, through a procedure known as consular processing. Alternatively, they may be able to adjust their status through the INS in the United States. INA section 245, 8 U.S.C. section 1255. Adjustment permits an alien who is otherwise qualified to apply to the INS for lawful residence if a visa is immediately available. Adjustment, which is discretionary, may be denied if the INS officer believes that the applicant entered as a nonimmigrant with the preconceived intent of remaining as an immigrant. The INS official ruling on the adjustment application must determine that the usual requirements for approval of a visa petition are met and also must make the determinations ordinarily made by a consular officer (primarily, that the alien is not disqualified under one of the grounds of inadmissibility set forth in INA section 212(a), 8 U.S.C. section 1182(a)). As in consular processing determinations, the burden in adjustment of status is on the alien to demonstrate that he or she is not inadmissible at the time of adjustment. 1.9.4 Entry v. Admission Until 1996, aliens who "entered" the United States, even surreptitiously, by evading inspection, were subject to deportation grounds and procedures. Aliens who had not entered the United States were subject to exclusion grounds and procedures. Aliens in deportation proceedings had greater constitutional and procedural rights than aliens in exclusion proceedings. This gave an advantage to those aliens who had crossed the border illegally and successfully evaded inspection rather than abide by the law and seek admission at the border. To eliminate this advantage, in 1996 Congress replaced the term "entry" with "admission" to mean the lawful entry of an alien into the country after inspection. INA section 101(a)(13), 8 U.S.C. section 1101(a)(13). Admitted aliens have greater rights than nonadmitted aliens under U.S. immigration law. 1.9.5 Exclusion v. Inadmissibility With enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress changed the term "exclusion" to "inadmissibility" throughout the INA. Despite the change in terminology, the terms "exclusion" and "inadmissibility" are functionally equivalent. Both refer to the state of being ineligible for admission to the United States because of a failure to meet one or more of several predetermined admission criteria, or grounds of inadmissibility. INA section 212(a), 8 U.S.C. section 1182(a). Until 1996, the distinction between the terms "exclusion" and "deportation" was an important one, hinging on whether an alien had made an "entry" into the United States. 1.9.6 Removal v. Exclusion/Deportation The IIRIRA also consolidated exclusion and deportation proceedings into one "removal" proceeding. Although there is now only one type of proceeding, some differences remain that are functionally equivalent to pre-IIRIRA exclusion and deportation. Consistent with pre-IIRIRA law, an alien who has not been admitted to the United States has the burden to prove admissibility. If an alien has been admitted to this country, however, the government has the burden to show deportability. 1.9.7 Visa v. Status A visa stamp in an alien’s passport is not necessarily the same as that alien’s status in the United States. A visa is like a key to a door; you need it to enter the United States, but once you have been admitted you can ignore the key while you remain in the room (i.e., the United States). You may also have more than one visa stamp (i.e., more than one key to the U.S. door), but you use only one visa stamp to enter the United States. The I-94 card or other documentation that an nonimmigrant receives when admitted controls how long that alien may remain in the United States, not the visa stamp or expiration date on the underlying petition for visa classification. For example, the INS may approve a petition for three years in the H- 1B nonimmigrant worker classification. Because of reciprocity limits in some countries, however, the consular officer may stamp the H-1B visa in the passport as being valid for only three months. See, e.g., U.S. Dep’t of State, 9 Foreign Affairs Manual (FAM) Part IV Appendix C, Reciprocity Schedule for Iran (H visas limited to three months). When arriving in the United States, however, the alien is supposed to be admitted for the length of time stated on the underlying petition for visa classification (in this case, three years). Is the H-1B worker out of status four months later, because the visa is no longer valid? No. The alien is in valid immigration status because he was admitted for three years and the ending date on his I-94 card shows that. Or consider an F-1 student whose F-1 visa expires two months after graduation, but who has applied for and received one year of optional practical training. Is the student out of status after her visa expires? No, because her status has been extended in the United States for 12 months. If an alien leaves the United States for any reason, however, they need another "key" (i.e., visa) to reenter. If the alien’s visa is still valid, they may reenter on that visa. If an alien’s visa has expired, they need a new visa to be readmitted to the United States. Once in the United States again, status controls, not the visa validity period. 1.10 Visa Categories 1.10.1 Nonimmigrant (Temporary) Visa Categories An alien who wishes to come to the United States as a nonimmigrant must fit into one of numerous qualifying categories, designated by the symbols "A" through "S," corresponding in general to the paragraphs in INA section 101(a)(15), 8 U.S.C. section 1101(a)(15), where they are defined. Most nonimmigrant categories require that the alien intend the stay to be temporary and that the alien has a residence in a foreign country that s/he does not intend to abandon. Most nonimmigrant categories have no limit on the number of aliens who can enter the United States. 1.10.2 Immigrant (Permanent) Visa Categories INA section 203, 8 U.S.C. section 1153, sets forth three broad types of immigrant visa categories: family-sponsored (section 203(a)); employment-based (section 203(b)); and diversity-based (section 203(c)). There is no limit on the number of immediate relatives of U.S. citizens who may immigrate. Other immigrant visa categories, however, have annual numerical limits. 1.11 Refugees/Asylum Seekers The terms "refugee" and "asylum seeker" both refer to people who fear persecution. The legal test is the same for both groups: they must show that they have a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group or political opinion." INA section 101(a)(42)(A), 8 U.S.C. section 1101(a)(42)(A). The procedures differ, however, based on location. Refugees are aliens who appeal for protection from persecution while still in another country. They do not reach U.S. soil until they have been processed, screened, and selected as refugees. Asylum seekers make the same appeal but are physically in the United States or at its border when they seek protection. Typically those who gain admission through the overseas refugee programs are located in a refugee camp in a foreign country at the time of selection. Sometimes, however, they are selected and processed for refugee status while still within their countries of origin. The President retains the authority to decide yearly, after consultation with Congress, the number of refugees to be selected for admission from abroad, and from what areas worldwide. Unlike beneficiaries of the overseas refugee programs, applicants for asylum reach the territorial United States on their own and only then claim protection against involuntary return. Applicants enter by several means: some enter on nonimmigrant visas and overstay; others enter without inspection before filing their claim; others ask for asylum at a border post or when they first encounter the border patrol; and still others are nonimmigrants still in status who file, for example, because a sudden political change at home makes it risky for them to return. No statutory ceiling exists on how many people can be given asylum each year. Historically 15-30 percent of applicants have successfully received asylum. In nearly all circumstances asylum applicants remain in the United States while their claims are reviewed, which can take years. People selected as refugees or granted asylum status are eligible to remain permanently in the United States, and after completion of processing, are granted lawful permanent resident status. 1.12 Admission Issues 1.12.1 Grounds of Inadmissibility Well before any Congress enacted numerical limits on immigration to the United States, it acted to exclude aliens on qualitative grounds. Although there are many grounds of inadmissibility, the number of aliens actually barred is relatively small, and has decreased over time. Generally, the grounds of inadmissibility apply equally to immigrants and nonimmigrants. The grounds of inadmissibility listed in the INA are exclusive. They cannot be enlarged by executive fiat or disregarded by executive officers or the courts. An alien may not be held inadmissible on a ground other than those given in INA section 212, 8 U.S.C. section 1182. The several grounds of inadmissibility set forth in nine broad categories, forming an imposing list of obstacles. The enumerated grounds of inadmissibility are: health-related; criminal and related; national security; the likelihood of becoming a public charge (i.e., relying on public benefits); lack of labor certification (or for foreign doctors, lack of certain medical qualifications); having undergone removal in the past five years; failure to possess certain required documents; permanent ineligibility for citizenship and draft evasion; and a miscellaneous category that includes polygamists, international child abductors, and guardians of certain helpless aliens. The grounds of inadmissibility are wholly distinct from the numerical requirements. For example, an alien who qualifies for immigrant visa classification under the family-sponsored first preference as the unmarried daughter of a U.S. citizen might nevertheless be inadmissible because she has AIDS. Waivers of some of the grounds of inadmissibility are possible, but can be difficult to obtain. 1.12.2 Admission Procedures Under our double-check admissions system, aliens wishing to enter the United States ordinarily must first obtain an appropriate visa at a U.S. consular post overseas. A visa is not a guarantee of entry to the United States, however. When an alien arrives at a port of entry, whether at an airport, seaport, or land border, an INS inspector makes an independent determination whether the alien should be admitted to the United States. This process is known as “inspection.” As discussed above, a person is not lawfully admitted to the United States until he/she has been inspected. A person may be physically on U.S. soil, but not be admitted yet. A person undergoing secondary inspection at an airport; a person in a car talking to an INS inspector at a border crossing post; passengers on a ship in a U.S. harbor waiting to deboard: all these are examples of people physically in the United States who have not yet been inspected and admitted. The visa application process differs for nonimmigrants and immigrants. Nonimmigrants must prove that they are qualified for the visa category they are seeking. Upon arrival at the port of entry, the nonimmigrant applicant must present a passport and visa, if required, and may be asked questions bearing on eligibility for admission. If admitted, the nonimmigrant normally will be given an arrival-departure record (INS Form I-94), endorsed to show the visa status and period of admission. Form I-94, usually stapled to a passport page, is to be turned in when leaving the United States. The INS keeps a counterpart as a control. A nonimmigrant may apply to the INS to extend his or her stay in the United States or change to another nonimmigrant status. A change of status does not require a new visa if the alien will not be leaving the United States. But neither does it eliminate the need for a visa; if the alien goes abroad and wishes readmission in the new status, a visa in the new classification is required. The immigrant admission process is usually more elaborate. Nearly all potential immigrants must be sponsored by a family member who is a U.S. citizen or resident alien, or a U.S. employer. The immigrant visa application is usually examined carefully and questions are sometimes put relating to its contents, but ultimately to the issue of admissibility. Admission is recorded in the passport, and the alien registration card is processed for later delivery to the alien, who becomes a lawful permanent resident when the inspection ends. Technically, any alien who appears inadmissible to the INS inspector at the port of entry is to be detained for a removal hearing. In practice, an inspector facing a long line will detour a questionable applicant to "secondary" inspection for more intensive interrogation. If the alien is not admitted there, the inspector may "defer" inspection to a later time at the local INS district office. The alien is usually paroled into the United States pending the deferred inspection. Alternatively, the inspector may serve the alien with a notice of removal hearing for determination of admissibility by an immigration judge. In some circumstances the INS may permit an alien to withdraw his or her application for admission and return home. In that case, the alien’s visa is canceled and the issuing consulate is advised of the circumstances. By withdrawing an application for admission an alien avoids the legal restrictions placed on those who have undergone removal procedures in the United States. 1.13 Removal Issues 1.13.1 Grounds of Deportability The very first immigration law in 1798 granted the President authority to deport any alien found “dangerous to the peace and safety of the United States.” The Supreme Court has repeatedly sustained Congress’ power to provide for the banishment of aliens from the United States. The Court has justified this power as being inherent in our nation’s sovereignty--the same basis as Congress’ power to determine inadmissibility. The Court has rejected constitutional challenges to Congress’ deportation authority, holding that deportation is a civil rather than a criminal sanction. INA section 237, 8 U.S.C. section 1227, contains six broad categories of deportation, many with numerous subparts. Some grounds of deportability are designed to protect the integrity of the admissions process. Others penalize aliens who have committed certain crimes. Others relate to fraudulent alien registration or entry documents. Some involve security-related grounds. One deportation ground targets aliens who become a public charge within five years of entry. Another ground is targeted at aliens who have engaged in immigration document fraud. Some but not all of these deportation grounds may be waived by the Attorney General. An alien might seem safe from removal on some grounds after five years. However, if the alien leaves the country and then reenters, the reentry may activate the grounds of deportability again from the date of reentry. 1.13.2 Removal Procedures In 1996 Congress consolidated the formerly separate exclusion and deportation hearing process into one removal proceeding. Despite the unified name, some aspects of the removal procedure differ, depending on whether or not the alien has been admitted to the United States. For example, an alien in removal proceedings who is seeking admission has the burden of proof to show "clearly and beyond doubt" that he or she is entitled to be admitted and is not inadmissible under INA section 212, 8 U.S.C. section 1182. By contrast, if an alien establishes that she is lawfully present pursuant to a prior admission, the INS has the burden of proof to establish "by clear and convincing evidence" that the alien is deportable. All removal proceedings begin with a notice to appear. This is similar to the old orders to show cause. The notice to appear indicates the reasons the INS believes the alien is inadmissible or deportable, and the time and place of hearing before an immigration judge. The alien is also advised of the right to counsel at no expense to the government and given a list of free legal services programs. 1.13.3 Expedited Removal “Expedited removal” is the term coined by the IIRIRA for the truncated procedures by which immigration officers may summarily determine that an alien is not admissible to the United States. This is also sometimes called “summary exclusion.” Under INA section 235(b), 8 U.S.C. section 1225(b), if an immigration officer determines that an arriving alien is inadmissible because they arrived with either no immigration documents or fraudulent documents, the officer may order the alien removed from the United States without a regular removal hearing. However, if the alien indicates either a fear of persecution or an intention to apply for asylum, the officer must refer the alien for an interview by an asylum officer. 1.13.4 Relief from Removal There are many forms of discretionary relief from deportability and inadmissibility. The number and variety are such that it is advisable to seek legal counsel for guidance about the forms of relief that are most likely to succeed in a particular instance. One common kind of relief from deportation is voluntary departure. VD, as it is often called, can be granted by the INS for up to 120 days before removal proceedings, or for up to 60 days by an immigration judge at the end of removal proceedings. INA section 240B; 8 C.F.R. sections 240.25, 240.26. The IIRIRA limited voluntary departure in several ways. For example, extensions of voluntary departure are no longer possible. Nor may an alien granted voluntary departure obtain work authorization. This limits the usefulness of voluntary departure to help foreign nationals who have fallen out of status. 1.14 Keeping Immigrant Status Many aliens believe that obtaining lawful permanent resident (LPR) status in the United States ends their immigration concerns. Once a green card holder, always a green card holder, they think. Wrong. LPR status can be lost, either intentionally or by accident, especially if the person remains outside of the United States for too long. As one author has pointed out, “[k]nowing how to keep your client an LPR is just as important as knowing how to obtain the status in the first place.” Endelman, “You Can Go Home Again -- How to Prevent Abandonment of Lawful Permanent Resident Status,” 4-91 Immigration Briefings 23 (Apr. 1991). LPRs who go abroad generally have three ways to reenter the United States. First, if they are out of the United States for less than a year, they normally reenter on the strength of their alien registration receipt card (INS Form I-551), more commonly called a green card. Second, they may apply in advance for a reentry permit (INS Form I-131). Third, they may apply for a special immigrant visa as a returning resident at a U.S. consulate or embassy overseas. None of these three ways is foolproof. The IIRIRA may affect how INS inspectors treat returning LPRs. INA section 101(a)(13)(C), 8 U.S.C. section 1101(a)(13)(C) states that an LPR is not regarded as seeking an admission into the United States unless one of six factors apply. One of those factors is whether the LPR has been absent from the United States continuously for more than 180 days. This means as a practical matter that most LPRs who leave the United States for less than six months and then reenter should have no problems. The INS will not even consider them to be seeking an admission. By contrast, if an LPR has been outside the United States for more than six months, he or she will have to be formally readmitted, and all the grounds of inadmissibility will apply. Another one of the six factors affecting whether an LPR will have to go through admission upon reentry is whether he or she is deemed to have abandoned LPR status. Here are some factors in deciding whether an LPR has abandoned his or her status: (1) length of absence; (2) whether the LPR maintained a residence in the United States while overseas; (3) whether the immigrant was employed in the foreign country; (4) whether his or her family accompanied him or her to the foreign country; and (5) whether the immigrant maintained ties with the United States, such as property holdings, bank accounts, and family. Here are four practical tips for preserving LPR status: 1. The LPR should continue to file U.S. tax returns and keep a U.S. bank account. 2. When returning to the United States on a visit, the LPR may want to use a one-way rather than a round-trip ticket. 3. When coming to the United States, if possible, the LPR should return to a dwelling they own, such as a house or a condominium, rather than to a rented apartment. If there is a rented apartment, the lease should not be on a weekly basis, but rather for a longer period of time. 4. The LPR should leave some possessions permanently in the United States. These are some of the more common tips to preserve LPR status. Any LPR who plans to be outside the United States for more than six months should consult a good immigration lawyer. 1.15 Citizenship With rare exceptions (primarily concerning the children of foreign diplomats), anyone who is born in the United States is automatically a U.S. citizen. The citizenship of children born overseas is not entirely straightforward. Generally speaking, if one of the parents is a U.S. citizen who has lived in the United States for varying lengths of time after the age of 14, the child will be a U.S. citizen. Children born with dual citizenship who wish to retain both citizenships should use multiple passports to enter each country as a citizen and not use a visa whenever possible. This establishes a record of citizenship that will be useful if citizenship questions are raised. Naturalization is ordinarily available to persons who have been lawful permanent residents for at least five years. The period of lawful permanent residence is reduced to three years for the spouse of a U.S. citizen, and also in certain other circumstances. An alien seeking naturalization must undergo an FBI check of their criminal record; must show that they have good moral character; and must normally show an elementary understanding of the English language and a knowledge and understanding of the fundamentals of U.S. history and government. INA section 312, 8 U.S.C. section 1423. Requirements for naturalization are simplified and expedited for aliens who are serving, or have served honorably, in the armed services of the United States, and for children. All naturalization applicants must take an oath of allegiance to the United States. INA section 337, 8 U.S.C. section 1448. The oath states in part 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.” Despite that language, becoming a naturalized U.S. citizen does not necessarily mean that the person must give up his or her prior citizenship. If another country decides to continue to treat one of its citizens as still a citizen, despite his or her acquisition of U.S. citizenship, the United States must and does respect that decision. Thus, many naturalized U.S. citizens are “dual” nationals, meaning that they are citizens of more than one country. The benefits of citizenship achieved by naturalization are several: ability to run for most public office positions, the ability to vote, and entitlement to public benefits. 1.16 Public Benefits/Rights of Aliens The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Act) created a dramatic effect on the public benefits and government services received by legal immigrants. For the first time legal immigrants do not have equal access to the programs that their taxes fund. While the Welfare Act appears to ban all noncitizens from several major benefit programs, the full extent of the restrictions remains unclear and subject to several exemptions, the discretion of individual states and to the final interpretation of numerous ambiguous terms and provisions of the law. Moreover, some restrictions are likely to invite constitutional challenges in the courts, which could impede full implementation of the Welfare Act for years. The Welfare Act’s full impact may not be felt for quite some time because several of its provisions will be implemented at the discretion of individual states, and other provisions will only be fully implemented after five years. As enacted, the Welfare Act effectively bars almost all noncitizens from receiving two significant federal programs: Food Stamps, the major food assistance program for the poor; and Supplemental Security Income (SSI), the cash assistance program for low-income persons who are aged, blind or disabled. The Welfare Act also allows states to exclude legal aliens from three federal programs administered on the state level: non-emergency Medicaid; social services funded by Title XX block grants, including care for children and disabled persons, and domestic violence programs; and the new Temporary Assistance for Needy Families (TANF) program, which replaced Aid to Families with Dependent Children (AFDC). Three groups of legal aliens are exempted from these restrictions: refugees and asylum seekers; legal residents who are veterans or are serving in the U.S. military and their dependents; and lawful permanent residents who have worked 40 "qualifying quarters" (10 years) for social security purposes. Other provisions of the Welfare Act restrict access to "federal public benefits" to "qualified" aliens. Such aliens include only lawful permanent residents, refugees, persons paroled into the United States for at least a year and those granted asylum, withholding of deportation or conditional entrant status. Because the term "qualified alien" is defined so narrowly, many aliens who are lawfully in the United States and working, such as applicants for asylum or adjustment of status, and nonimmigrants in H-1B, F-1 or J-1 status, are not considered "qualified aliens" for federal public benefit purposes. In light of these and other public benefit restrictions, it is imperative that nonimmigrant visa holders have sufficient funds for themselves and their families, and that they know that taking public assistance may create immigration problems. 1.17 Conclusion As many courts have noted, immigration law is one of the most complicated areas of U.S. law, second perhaps only to tax law in complexity. New immigration laws such as the IIRIRA make it even more difficult to properly and ethically advise foreign nationals. Add to the mix the human element: aliens who desperately want to come to or stay in the United States; family members or employers whose goals, desires or dreams may differ from that of the principal alien. All these factors make immigration law challenging and difficult. Stephen Yale-Loehr is a nationally recognized expert on U.S. immigration law. He is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by Matthew Bender & Company, Inc. He also teaches immigration and refugee law at Cornell Law School, and is of counsel to True, Walsh & Miller in Ithaca, New York (http://www.twmlaw.com/). He also has worked with the Carnegie Endowment for International Peace in Washington, DC, co-authoring a book recommending a new way to select economic immigrants to the United States. He can be reached at mailto:firstname.lastname@example.org. Jessica Bellinder is a student at New York University Law School, where she has a special interest in immigration law. She graduated Phi Beta Kappa from Cornell University in 1994. A prior version of this article originally appeared as chapter 1 of the NAFSA Adviser's Manual of Federal Regulations Affecting Foreign Students and Scholars (rev. ed. 1998). The authors thank NAFSA for their willingness to let us repost this article. For more information about NAFSA, see http://www.nafsa.org.
"SISKIND'S IMMIGRATION BULLETIN – FEBRUARY 5_ 2000 E-mail "