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E-mail subscribers as of February 5, 2000: 24,664 persons (50 states/144

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:, WWW home page: 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 Writers: Amy Ballentine and Greg

To receive a free e-mail subscription to Siskind's Immigration Bulletin, fill
out the form at To unsubscribe,
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the free Siskind's Immigration Professional Newsletter, go to





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:/ 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

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 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



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
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.


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

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.

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

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


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.


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

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.


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.


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
   •   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:

China (Taiwan)
Costa Rica
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.)

                 Local INS Office Processing Times

                     Last Updated 20 November 1999

                                 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

 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
Beijing [1]    Varies      N/A             N/A          Same Day           N/A
C. Juarez    **           2 months       2 months    Same Day        2-3 weeks

Frankfurt    ** [2]       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 [4]   30 days      7-21           60-90       3-10          14-21 days
                          (London        days        (seasonal) 1-
                          INS) or 21-                8 days
                          28 days(US                 (courier)
Manila       30-60        1 Year         30-90       21 Days [5]     Unavailable
             Days                        Days

Tel-Aviv     2-6 weeks    2 weeks [6]    2 weeks     3 days          2 weeks

                                                     2 weeks
Tokyo [7]    5 days [8]   10-20 days     10-20       5 days          20-25 days
                          [9]            days


 [1] 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.

 [2] 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).

 [3] 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).
[4] 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.

[5] 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.

[6] 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.”

[7] 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.

[8] 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

[9] 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-

Source: American Immigration Lawyers Association



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

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.


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.


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.


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.


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.


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

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.


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
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.


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

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.


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.


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.



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

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

       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

      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

       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

      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

      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,

       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

       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
( 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

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

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