Docstoc

Immigration Law Outline

Document Sample
Immigration Law Outline Powered By Docstoc
					                                                    IMMIGRATION OUTLINE

I.   INTRODUCTION & DEFINITIONS
        A. Immigration law- The practice of law dealing with the immigration of people into the US , as opposed to the bringing
           of things into the US
                1. Customs is the subjection of immigration that covers the movement of things
                2. When individuals come into the US they are inspected by an immigration officer ( they are inspecting the
                    person not the things)
                3. Immigration law has evolved to include the burdens that immigration places on this country
                         a) Burdens
                                   (1) Social
                                   (2) Economic
                                   (3) federal benefits
                                   (4) Overpopulation
                                   (5) Natural resources
                4. Immigration is federal practice which applies the same in every state
                5. The Act states: immigrants are not entitled to fed benefits until they are lawful for 5 yrs
                         a) SSI – must have either visa or employment authorization given by the homeland security in order to
                              get a SSI number
                         b) SSI number is used as national ID number even though that‟s not what it is , It‟s a number assigned to
                              you for you to deposit and later collect SSI benefits
                6. Chinese Exclusion Act – Ping
                         a) By treaty Ping was allowed to go back home & had warrant authorizing his return to the US, while
                              gone law changed
                         b) Statute superseded the treaty since it was the more recent one
                                   (1) The People/Congress have the right to exclude those individuals who are perceived to be a
                                       threat to the US
        B. Emmigration – movement of people out of the country
        C. Immigration nationality Act (INA) – only applies to immigration in the US, people moving out are subject to the laws
           in the country they are moving to
        D. Immigrant - someone coming to the US with intent to stay in the US permanently
                1. Immigration law deals with
                         a) Immigrants
                         b) Non-immigrants
                         c) Legal & illegal aliens
                2. Automatic Presumption
                         a) All individuals coming to the US are presumed to be coming with the intent to stay ie coming as
                              immigrants
                         b) Immigrants must prove upon entry that they are authorized immigrants
                         c) Non-Immigrants must overcome the presumption & prove that they have a bona fide intent &
                              documentation t/b admitted as a non-immigrant
        E. Non-Immigrant – someone who is coming for a temporary time & specific purpose
                1. Grouped into categories:
                         a) certain foreign officials
                                   (1) ex here on depolomatic visa
                         b) students
                         c) individuals who are in transit thru the US
                         d) skilled & unskilled workers w/o the proper authority for employment
                         e) religious workers
                         f) international cultural exchange program participants
                         g) business visitors
                         h) visitors for pleasure
                2. All these individuals are authorized to be in the US by authority of their VISA
                         a) All have VISA letter that applies to them & distinguishes one category from another (visa alphabet)


         F.   Alien/ Foreign National - anyone who is not a citizen or a national of the US, including: immigrants, non immigrants,
              illegals 101(a)(3)
                   1. Legal Alien –someone who has entered the US after inspection & authorization by an immigration official
                   2. Illegal alient – entered the US w/o inspection & authorization by immigration official

Copyright 2010. All rights reserved                                                                                                   1
       G. Laws governing immigration
             1. VISA & nationality act aka INA
             2. CFR
             3. All laws & conventions, & treaties of the US specifically relating to immigration, exclusion, deportation or
                 removal ie UN convention on human rights
             4. Within within the field regulatory interpretations – policy instructions that advice how to implement laws on
                 immigration „
                     a) Department of state follows policies contained in the foreign affairs manual
                     b) Department of labor uses operation instructions
             5. Immigration law is impacted by the US constitution
                     a) its states “all people In the US” so constitution doesn‟t make distinction between citizens and non
                         citizens so they too are entitled to Due Process

       H. 4 Major Agencies in Immigration
             1. Department of Homeland Security –Primary overseer of immigration laws
                     a) 2003 immigration and nationality service no longer in service replaced by homeland security
                              (1) when it did function it came under the US dep of Justice – SO functions of the INS has been
                                  moved to the DHS
                              (2) immigration courts and the immigration board of appeals still fall under the jurisdiction of the
                                  Dept of Justice
                                       (a) part of executive office of immigration of review which is function of dept of Justice
                              (3) Immigration justice also falls under US Dept of State
                                       (a) All consulates and embassies are operated by US Dept of State
                              (4) Criticism for INS was that same agency was overlooking enforcement which also included
                                  detention and removal of aliens from the US
                              (5) On the other hand they were charged with providing benefits to the immigrants – so these two
                                  diff functions couldn‟t be taken care of the same dep it was a conflict of interest
                              (6) Homeland sec severed these function into two separate divisions
                     b) Business and employment aspect the US dep of labor comes into play
                     c) Dept of health and human services they are used for clearance of things such as disease waivers
                     d) Previous functions of the INS are now functions of HLS

                        e)  3 Separate Bureaus under DHS
                                (1) USCIS: Citizenship & immigration svs which deals w/conferring benefits & svcs to aliens
                                         (a) Lawful Perm Residence
                                         (b) Naturalization
                                         (c) Adoption
                                         (d) Refugee status
                                         (e) Family Immigration
                                                  (i) Note: USCIS person selected by President they are to come up with
                                                        restrictive proposals dealing with immigrants
                                (2) ICE: Immigration and customs enforcement
                                         (a) Functions include
                                                  (i) Investigation
                                                  (ii) Enforcement
                                                  (iii) Detention of aliens
                                                  (iv) Removal of aliens
                                (3) CBP: Customs & Boarder Protection
                                         (a) Charged with prevention of terrorists & terrorist weapon from entering the US
                                         (b) Includes customs but not enforcement
               2.   US Dept of Justice
                       a) Immigration courts & immigration board of appeals still fall under Dept of Justice
                       b) Immigration judges are a division of the executive office of immigration review
                                (1) Executive Office of immigration review is charged with appeals from hearings in front of the
                                     immigration judge
               3.   Department of States & Labor
                       a) Immigration justice also falls under this dept
                                (1) All consulates & embassies are operated by this




Copyright 2010. All rights reserved                                                                                              2
II. ADMISSION & EXCLUSION
      A. US Constitution one of the laws governing illegal immigrants into the US
            1. In order for the Constitution to apply the person must be admitted & not a parolee
            2. Parole – allows for the physical entry to the US w/o according them any status
                     a) Shancy – Denied admission upon entry on 212 basis so he was on parole thus he could seek release
                         under Habeas Corpus & seek constitutional protections b/c he had not availed himself of the Laws of
                         the US by not being admitted

        B. Changes in the Law of Immigration
              1. Individuals are not entitled to come into the US & take up residency & jobs or even visit w/o proper regulation
                  by the immigration and nationality act
                       a) Major changes were made in 86 to the act – marriage fraud act
                       b) In 90‟s anti terrorism and affective death penalty act
                       c) 911 itself did not have any changes
                               (1) they were enforcing laws that were already in affect , it didn‟t change the immigration act
                       d) 1996 illegal immigration reform and immigrant responsibility act – IRA IRA
                               (1) this act significantly reduced the availability of relief to aliens who were in deportation
                                    proceedings and sig reduced the way other immigrants and non immigrants could work in
                                    the system

        C. US Does not function as a country with open boarders
              1. Act controls the flow & type of immigrants by
                       a) Placing Numerical limitation in the number of VISAS issued
                       b) Types of qualifications for immigration/non or asylum
              2. When arriving at the port of entry, an immigration inspector determines whether the traveler is a US citizen and
                  if not whether any of the inadmissibility grounds in 212(a) apply.
                       a) Either the non citizen has a visa & thus had undergone screening at Consulate or lacks visa, in which
                           case he is generally inadmissible
                       b) All non immigrant visitors are fingerprinted & digitally photographed & have travel documents
                           scanned
              3. In order to be admitted to the US must be found to be not inadmissible
                       a) Purpose for grounds of inadmissibility is to protect the American public & protect against competition
                           & low wages
              4. Admitted : Lawful entry into US after inspection & authorization by an immigration official
                       a) The meaning and significance of entry and admission:
                               (1) Admission: determines whether a noncitizen will be subject to inadmissibility grounds or
                                    deportability grounds.
                               (2) Admission refers to the word entry.
                               (3) Entry: some of the inadmissibility grounds still use either the word entry or enter.
                                         (a) Also affects procedure.
                               (4) Entry: any coming of an alien into the US from a foreign port or place or from an outlying
                                    possession.
                                         (a) a crossing into the territorial limits of the US
                                         (b) inspection and admission by an imm officer or actual and
                                         (c) intentional evasion of inspection at the nearest inspection pt.
                                         (d) freedom from restraint but not parole.

                         b) Matter of Ching & Chen
                                (1) Law: if entered US=deportation hearings.
                                (2) Reasoning: applicant‟s escape from carrier custody into the US constituted an entry. Because
                                    they were in a detention lounge, they had not landed/crossed US soil. Therefore, although
                                    there was inspection and it was complete the applicants made a 2 nd attempt into the US and
                                    succeeded by leaving the detention lounge evading detection and inspection by either carrier
                                    or service employees and got into the US interior w/o restraint.




Copyright 2010. All rights reserved                                                                                                3
               5.   Brief Departure
                        a) Rosenberg v. Fleuti: An innocent casual and brief departure does not break the continuous phsycial
                            presence in the US.
                        b) Reasoning/Holding: Congress can exclude all classes of undesirable aliens, but we do not think
                            Congress intended to exclude aliens long resident in this country after lawful entry who have merely
                            stepped across a border and returned home in a couple of hours. Factors to consider:
                                 (1) length of time alien is absent
                                 (2) purpose of the visit (if contrary to imm laws)
                                 (3) whether the alien has to procure any travel docs to make the trip knowledge of implications in
                                     leaving)


       D. Admission : Tools of the Trade
             1. Passport
                      a) Individual traveling to another country must have a passport issued by their country of citizenship
             2. VISA
                      a) A document issued by the foreign consulate abroad allowing person to travel to the US & seek
                          admission
                               (1) VISA is placed in the passport allows travel from the native country to the US
                               (2) It doesn‟t guarantee admission
                               (3) After inspection & authorization by the immigration officer – person is admitted or allowed
                                   entry into the US
                      b) With only a few exceptions , non citizens need visas to enter the US
                      c) Applying for VISA
                               (1) Must go to US consulate abroad & apply application for VISA to the US
                      d) Self-Contained Document
                               (1) Visa does not dictate the terms of admission
                      e) Forms of VISA
                               (1) Single Admission by specific date – invalid after that date
                               (2) Multiple entries VISA w/I 5 year period
                                        (a) Seek admission each time w/I 5 year period

               3.   I-94 Arrival Departure Record
                        a) Once admitted into the US an I-94 arrival departure record at the port of entry is issued by the
                            inspecting immigration specialist [usually filled out in the airplane]
                        b) It is the controlling document since a VISA is only used to travel & knock on the door which only
                            states the number of times you can do this ( doesn‟t state how long you can stay)
                        c) It dictates the terms, conditions & length of stay of authorized person
                        d) Red Stamped – which includes the port of entry, date of entry & second date on which alien must exist
                            the US, & what VISA classification person is entering under
                                 (1) Person is given the portion of the form that‟s red stamped

               4.Exception to VISA requirement
                      a) VISA Waiver
                               (1) Operates for visitors for pleasure only : nationals of countries that have historically low rates
                                   of visa refusals may enter the US as tourists or business visitors for 90 days w/o having to get
                                   a visa
                                        (a) However the country must be have agreed to extend reciprocal privileges to the US
                                             citizens
                               (2) Benefits are extended to citizens of those countries w/whom the US has established eligible
                                   for participating in the VISA waiver
                               (3) Usually countries established as not abusing the VISA violations such as Northern Europeans
                               (4) Individuals seek admission as VISA Waiver at the port of entry & issued I-94 however they
                                   are VISA exempt
       E. Inadmissibility & Violations
              1. 212 Imposes requirements on those aliens that are coming into the US & operates against aliens that are in the
                 US w/o admission
                      a) Grounds on which noncitizens who seek admission to the US will be found Inadmissible
                      b) In order to be admissible to the US a person must be found to be not inadmissible
              2. 237 sets standards of conduct for those formally admitted to the US
                      a) Grounds on which noncitizens who have already been admitted to the US w/b found deportable
Copyright 2010. All rights reserved                                                                                                4
       F.   How to determine if Non-Admissible
               1. In order to be admitted to the US the non immigrant must be found to be not inadmissible
                        a) Grounds for inadmissibility set forth in section 212
                        b) Inadmissible – alien not entitled to entry based on one or more of grounds of inadmissibility
               2. How to determine if non admissible
                        a) Non-immigrant must complete and file non immigrant visa application which is field with US
                            consulate abroad
                        b) Person is interviewed to determine if he is admissible into the US
                        c) If consulate abroad finds that they are not inadmissible they will be issued visa
                        d) Once issued they travel to the US and knock on the door and after inspection they can be admitted to
                            the US
                        e) Admission defined under section 101 (a)(13)(A)

       G. 7 Groups Basic Inadmissibility under 212:
              1. Economic Inadmissibility
                     a) Purpose of this ground is to protect from aliens becoming public charges w/I the US
                     b) This happens when inspecting officer asking person coming to the US how much money they have
                               (1) if individual is suspected to be inadmissible on economic grounds officer can not admit them
                                   into the us and turn them away
              2. Political Grounds
                     a) Those who are communist as distinguished from communist not of their own free will – those who
                          were forced to join as communist by their country official as a condition of citizenship – so they didn‟t
                          freely choose to be communist so they don‟t fall under the prohibition
                     b) these individuals who didn‟t voluntarily become terrorists are not prohibited
                     c) foreign govnt officials engaged in particular severe violations of religious freedom

                3.   Health
                        a) Those who have communicable disease, drug addicts
                        b) Waiver provision for those who have communicable disease
                                (1) HIV is considered as communicable disease , so if HIV positive they must go thru procedure
                                     for waiver to overcome basis of inadmissibility
                4.   Criminal
                        a) Those committed crimes of moral turpitude (serious criminal activity)
                        b) Those engaged in the sale/trafficking of controlled substances
                        c) Those who have multiple criminal convictions and
                        d) traffickers and persons
                5.   Quasi Criminal or Moral
                        a) Commercialized vise or Prostitution
                        b) Polygamy
                        c) International abduction

                6.   Unauthorized Workers
                        a) Those who don‟t have employment visa or labor certification
                        b) 3 documents entitling person to work here
                                (1) non immigrant employment visa
                                (2) labor certification – step in obtaining green card thru employment
                                (3) employment authorization document
                        c) anyone not having one of the three is not entitled to work in the US

                7.   Miscellaneous
                        a) Those who entered w/o any entry documents/visa at port to entry are inadmissible – Immigration
                             violators
                        b) Anyone accompanying an inadmissible alien is inadmissible
                        c) Stole-away‟s are inadmissible
                        d) Anyone who is found in the us who hasn‟t been formerly admitted is inadmissible
                        e) Anyone who has failed to go to a removal hearing is inadmissible
                        f) Those who have participated in fraudulent document fraud to enter into the US
                        g) Former citizens who have renounced citizenship to avoid paying taxes
                        h) Unlawful voters
                        i) Those who have become a public charge
                        j) Terrorists / violators of US security
Copyright 2010. All rights reserved                                                                                               5
       H. Who makes the determination of admissibility
             1. Even with a visa it‟s the inspecting immigration official at the port of entry that decides whether that individual
                will be allowed to enter the US
                     a) Inspecting Immigration Official at the port of entry
             2. If found to be inadmissible officer can allow withdrawl of their application to the US and go back to their
                country
                     a) Withdrawing of app for admission doesn‟t result in any formal sanction such as an order of removal
                     b) However the attempted admission is noted in the computer and on file – so its available to other
                          inspecting officers in the future
             3. Procedure gives the inspecting officer the right to engage in summary removal ie deny entry of the individual
                and enter an order of summary removal
                     a) This order is an official sanction & results in certain bars on the individual to reentry during specific
                          times
                     b) the order has been expanded to allow officer to order summary removal w/I port of entry & w/I 100
                          miles of the port of entry
             4. Officer can deny admission but parole the individual into the US
                     a) parole – physical presence w/o being formally admitted
                     b) typically parole results in parole in the US for the period until the immigration judges hears their
                          reasons for entry to the US
                              (1) they are still on parole until the court determines whether they are inadmissible or allowed to
                                   come in
                     c) Parole is also used with asylum seekers : those running from a country due to well founded fear of
                          Persecution , so they may not have any documentation
                              (1) In this case if they enter to port of entry & are able to articulate a credible fear of persecution
                                   they will be given a credible fear hearing by immigration official to determine if they exhibit
                                   a credible fear of persecution –
                                        (a) Two different levels of fear
                                                  (i) Credible feat at port of entry to immigration official
                                                            (a) they can‟t make a final determination on a asylum case which can
                                                                only be done by an asylum officer or immigration judge
                                                  (ii) Well-founded fear when heard by immigration judge
                                                            (a) a successful asylum case results in lawful residency status

                                  (2) During this hearing if they make the requisite showing they are paroled into the US and sent
                                      to the immigration court to determine if they have exhibited a well-founded fear of
                                      persecution
                                           (a) Only immigration judge or officer can make this final determination
                                  (3) Asylum case results in lawful residency status


       I.   Unlawful Presence in the US
               1. Where alien is present in the US after expiration of their authorized period of stay or is present in the US w/o
                   having been admitted or paroled
               2. Period of unauthorized stay
                       a) I-94 that is stamped upon admission the stamp contains the period of the authorized stay
                       b) If stay beyond that period stamped on I-94 then is considered to have been unlawfully present in US

                3.   2 ramifications of unlawful presence
                         a) Subject to removal proceedings for having violated the term of their status anyone with the exception
                             of a spouse or child of a US citizen can‟t extend their stay or change their status in the US
                                           (a) ex someone here as visitor has 6 month period of authorized stay and their
                                                grandchild gets married after the 6 months , the alien can before the time of
                                                authorized stay expires they can fiel to extent their stay with the department
                                                homeland security , to stay beyond the authorized period
                                           (b) ex person here on student visa, before expiring they are given a job offer, they can
                                                file app w/ homeland security to change their status from student to authorized
                                                worker
                                  (2) Individual must apply for extension/change/ adjust status w/I the period of authorized stay in
                                      the US
                                  (3) After the expiration they can‟t be file for extension

Copyright 2010. All rights reserved                                                                                                  6
                                           (a) if file for extension w/I the period of authorized stay then they can stay in the US
                                                until a decision is issued
                                 (4) If individual has gone passed that period of authorized stay they can still file an extension but
                                      not in the US they can do so in their own country at the consulate
                          b) Section 212 (a)(9)(b) 3 and 10 rule -Any alien in the US & not in a period of authorized stay who has
                             been out of status for a 180 days-1yr & leaves the US is barred from re-entering for 3 yrs
                                 (1) individual here for 1 yrs or longer and departs the US is barred from reentering & getting a
                                      visa for 10 yrs
                                           (a) this bar is only triggered from the individuals departure from the US
                                           (b) they are barred even if they have an approved visa application or have a green card
                                                waiting for them
                          c) 180 day time period before the 3 & q0 yr bar is triggered


        J.   Removal
                1. Inspecting officer can enter under the summary removal procedures final order of removal against the alien or
                   they may be send it to the immigration court and the court may enter a final order of removal against the alien
                2. The final order of removal covers 2 circumstances
                        a) Person can be removed as inadmissible – or
                        b) Person might be removable as a deportable alien- which is one who has violated sections 237 covering
                            deportable aliens
                3. Formal order of removal has significant consequences on the aliens ability to return to the US - Consequences
                   of removal under 212
                        a) Receiving order of removal as inadmissible – they can‟t return to the us for 5 yrs from the date of the
                            order OR
                        b) 20 yrs in the case where the order of removal is a second or subsequent order of removal against the
                            individual
                        c) No return at any time if person is removed as an aggravated felon


        K. Procedure for 212 & 237
               1. Notice to appear is the charging document issued by the DHS by officer of immigration & customs enforcement
                  to individual in violation. Includes:
                        a) Aliens name, assigned alien #
                        b) Individuals country of citizenship/nationality
                        c) How & where they were admitted to the US
                        d) Nature of their violation
                        e) States specific code that was violated
               2. Notice is served on the alien either by certified mail or personal service by ICE officer
                        a) It will have a date set for hearing or one will be set at a later date
                        b) The alleged facts & charged admissibility grounds & individuals procedural rights
               3. At time alien is served, officer files it with immigration court that initiates proceedings in immigration court –
                  document compels alien to appear in court
                        a) Hearing may not start until 10 days after service of Notice to appear unless the noncitizen requests an
                            earlier day ( this is to give opp to procure attorney)
               4. If alien disregards it or fails to appear they will be subject to removal proceedings
                        a) Inadmissibility 212
                        b) Deportability 237


III. DEPORTATION
        A. Grounds for deportation for those already lawfully admitted under 237
              1. Lawfully admitted are those who are inspected & authorized by immigration official already, issued I-94 card
                  setting forth the terms and conditions of their lawful stay in the US.
              2. 237 Sets forth the code of conduct that non-immigrants and immigrants are expected to adhere to while they are
                  present in the US.
                       a) Note: Noncitizens who have entered but have not been admitted ie entered w/o inspection – are now
                            considered inadmissible rather than deportable




Copyright 2010. All rights reserved                                                                                                  7
               3.   Status Violators: aliens that have been admitted but who have violated their terms/visa status, may be placed in
                    removal proceedings
                        a) overstays,
                        b) people who have violated the Health dept standards,
                        c) conditional lawful permanent residency (marriage based LPR‟s petition),
                        d) marriage fraud,
                        e) committed certain criminal convictions (moral turpitude committed w/in 5 years of date of admission
                            and is convicted of a sentence of which one year or longer can be imposed is deportable

       B. Deportation Procedure
             1. Immigration Judge presides over removal hearing ICE v. Non citizen
             2. After considering the arguments IJ determines whether a person
                      a) Is a Non citizen,
                      b) Is w/I one ore more of the deportability grounds
             3. Then Determines whether the person is eligible for & deserving of any affirmative discretionary relief for which
                 he has applied
                      a) If IJ find not deportable then proceedings are terminated
                      b) If IJ finds deportable and denies discretionary relief an order of removal is entered.
                      c) If IJ finds deportable but grants discretionary relief, then, depending on the form of relief granted, the
                          IJ either orders the proceedings terminated or grants voluntary departure. (may lead to LPR status)

               4.   ICE or Non citizen can appeal
                        a) Non citizen can only appeal the decision to the BIA by filing a “petition of review” in the court of
                            appeal

       C. Significance of Entry & Admission
              1. Admission : Determines whether a non citizen w/b subject to inadmissibility grounds or deportability grounds
                       a) Admission is defined as the lawful entry of the alien into the US after inspection & authorization by
                           immigration officer

               2.   Entry: alien coming to the US from a foreign port or place
                        a) Crossing into the territorial limits of the US
                        b) Inspection & admission by Imm official or actual & intentional invasion of inspection at the nearest
                            inspection point
                        c) Freedom from restraint

       D. Break in physical presence
             1. An innocent casual & brief departure does not break the continuous physical presence in the US. Feluti
                      a) Factors
                               (1) Length of aliens absence
                               (2) Purpose of the visit ( if contrary to imm laws)
                               (3) Whether alien has to procure any travel documents to make the trip


       E. Crime Related Deportability Grounds
             1. Conviction
                     a) Note: Immigrants are less likely not more likely to be institutionalized than the native born and much
                         more less likely to be institutionalized than native born men with similar demographic characteristics.

                        b) Conviction is a formal judgment of guilty of the alien entered by a court or
                              (1) If adjudication of guilt is withheld where the judge or jury has found the alien guilty or the
                                   alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant
                                   a finding of guilty and
                              (2) The judge has ordered some form of punishment, penalty, or restraint on the alien‟s liberty to
                                   be imposed [ probation, restrictions on travel, fines etc. are punishment]
                                        (a) not civil offenses. Must provide the C safeguards normally attendant upon a criminal
                                             conviction (BARD)
                                        (b) The conviction does not need to be final (appeal as of right does not need to be final)
                                        (c) Remedial statutes: sentencing judge may tell you that you do not have a conviction
                                             on your record as far as state law is concerned, however it is different in Imm ct.

Copyright 2010. All rights reserved                                                                                                8
                2.   Crime involving moral turpitude
                        a) Marciano v. INS: Federal courts have consistently held that statutory rape is a crime involving moral
                             turpitude.
                                  (1) Marciano intended to sleep with a girl against the law.
                                  (2) Not constitutionally vague (notice issue) b/c specific intent so you must have known that it
                                      was a crime of moral turpitude. Sentenced and placed in deportation.
                                          (a) must be committed w/in five years after admission to give rise to deportation.
                        b) Multiple criminal acts: is deportable
                                  (1) Inherently based, vile, depraved
                                  (2) m/b committed w/I five years after admission to give rise to deportation
                                  (3) No double jeopardy, state and federal are separate sovereigns

                3.   Aggravated Felonies
                        a) Any non citizens who after admission has been convicted of an aggravated felony is deportable
                        b) AF‟s don‟t have to be committed w/in five years after admission.
                        c) AF makes a person deportable w/o regard to the potential or actual sentence.
                        d) Eliminates most discretionary relief possibilities, triggers mandatory detention from the time removal
                            proceedings begin until removed,
                        e) Prevents person after removal from ever reentering the US w/o special permission from Sec of HS, and
                            subjects the person to a 20 year prison term is found in the US unlawfully w/o special permission.
                        f) Sentence may be increased dramatically if person has previously been deported b/c of a conviction of
                            an AF. AF=some need not even be aggravated or felonies 101(a)(43) term of imprisonment=actually
                            imposed.
                        g) Retroactivity issues for previous convictions of AF.
                        h) Never allowed to return
                        i) Not entitled to bond

                4.   Controlled Substances
                        a) Any alien who at any time after admission has been convicted of a violation relating to a controlled
                             substance other than a single offense for one‟s own use of 30 grams or less of MJ
                                 (1) Drug abusers & addicts
                                 (2) Certain fire arms offenses
                                 (3) Catch-All for misc:
                                          (a) Treason, espionage, violation of selective service contract, any alien btw 18-26 must
                                               register for the draft
                                          (b) ( inelligible for naturalization)
                        b) Note: Judges will not look at the fact of the criminal charge but rather look only at the offense

                5.   Political & National Security Grounds
                         a) Communist party can render non immigrants inadmissible but not on deportability grounds

                6.   Other Grounds
                        a) Economic, moral & health related concerns
                        b) Public charge w/I 5 years of entry is deportable unless show cause arising after entry 237(a)(5)
                                (1) Affidavit of support used in family based green card applications
                                          (a) To show source of sufficient funds keeping the individual from becoming public
                                               chare
                                (2) In Employment affidavit to show person has sufficient salary
                        c) Failure to file a change of address
                                (1) m/do so w/I 5 days of move or else its document fraud
                        d) Espionage, sabotage, terrorism, or any act that would have adverse foreign policy consequences

       F.   Entry While Inadmissible & Related Issues
                1. Any alien who at the time of entry or adj of status was in one or more of the classes of aliens inadmissible by
                   the law existing at such time is deportable
                        a) Fraud
                                 (1) Not in possession of valid entry documents
                        b) False Citizenship
                                 (1) Not inspected & deportable for having entered w/o inspection



Copyright 2010. All rights reserved                                                                                                  9
        G. How do they know about crimes
              1. When you apply for immigration benefit there is a finger print process and the finger prints will be sent to FBI
                  and before a benefit is conferred you have to have a clear fingerprint report confirmed.
                      a) Expungement does not get rid of a criminal conviction
                      b) Only thing that will get rid of a criminal conviction is a pardon by the governor or president
                      c) Canadian pardon has no effect to get rid of crime.
              2. Paperwork: if you divulge on an application and if you don‟t admit you have made a material misrepresentation.

        H. Consequences 212 & 237
              1. IF an alien who has been charged with violations is placed in removal proceedings in Imm court and the imm
                  judge has found that the individual has committed a removal/inadmissible offense, the IJ will enter an order of
                  removal
                      a) If an alien is removed as inadmissible from 212
                               (1) they must leave the US
                               (2) prohibited from returning to the US for five years from the date of the final order of removal.
                               (3) If second or subsequent removal: can‟t come back for 20 yrs.
                               (4) Aggravated Felons are barred from entering forever.
                      b) Under 237:
                               (1) must leave the US
                               (2) barred from returning for 10 years.
                               (3) if second/subsequent barred for 20 years
                               (4) AFs are barred from entering forever.



IV. RELIEF FROM DEPORTATION
       A. Notice of Violation
              1. Violations – of status or haven‟t been admitted under S212 – subject to removal procedures
                       a) Aliens in violation of the act – the document that initiates the removal proceedings – charging
                            document: officially known as notice to appear
              2. Notice to appear is issued by homeland security by officer of immigration and customs enforcement
                       a) States aliens name, assigned alien # (8 digit prefixed by A) if already hasn‟t been assigned
                       b) Individuals country of citizenship/nationality
                       c) How and where they were admitted to US
                       d) Nature of their violation
              3. 2nd part of the notice – sets forth the specific code that was violated
                       a) Notice is served on the alien either as certified mail or personal service – when its received it will have
                            a date set for court hearing or one will be set at a later date
                       b) Same time alien is served, officer files it with immigration court that initiates proceedings in
                            immigration court – document compels the alien to appear in the court
                       c) If its disregarded and alien fails to appear – at anytime during removal proceedings the alien is subject
                            to order of removal in extension ordered against them – they can basically be removed at anytime
                                 (1) Charged with violations of either S237/212

        B. Hearings
              1. 1st Hearing: Master Calendar [ pre-trial hearing]
                      a) Initial hearing Master calendar hearing purpose is to address the charges against the alien – merits
                          aren‟t addressed
                               (1) Alien can have attorney present bu the court doesn‟t provide attorney
                               (2) Each of the allegations are numbered & alien must either admit or deny each of the
                                   enumerated charges
                               (3) Usually all allegations have to be admitted and alien is then removable
                                        (a) However alien may be eligible for relief from removal
                               (4) If there is an allegation that can be denied then hearing is held on that one
                      b) Alien can advise court that they are seeking relief from removal and they will be given a second
                          individual hearing
                               (1) Merits of the case not addressed until official hearing




Copyright 2010. All rights reserved                                                                                               10
               2.   Individual Hearing
                        a) Here either will deny allegations or find a form of relief from removal order
                                 (1) It‟s an adversarial hearing so govnt attorney always present (fed rules of evidence loosely
                                     enforced)
                        b) Has to testify, right to present witnesses, witnesses are sworn and placed under oath, subject to x-exam,
                            alien can present docs as exhibits, subject to impeachment, proceedings are recorded and transcribed in
                            event of an appeal, interpreters are available
                        c) Decision of the judge where appealable is appealed to the board of immigration appeals ( panel in VA)
                            either non citizen or ICE appeals
                                 (1) Rarely oral arguments held mainly decided on appellate brief
                                 (2) Decisions are appealable at fed DC of appeals level from the US SC

               3.   Board of Immigration Appeals
                       a) Is a Panel which sits in Virginia (sole jurisdiction is appeals)
                       b) Decided on appellate brief alone – rare cases they will hear oral arguments
                       c) Decisions are appealable at federal circuit court of appeals level and from there to US SC (very few
                            cases go to US SC – by writ)


       C. Before the alien gets the Master Calendar Hearing determine if there is any relief from removal

               1.   Forms of Relief as determined by judge at Master hearing
                       a) Previous Relief
                                (1) Before IRA 96 those who were convicted before 96 immigration judge had discretion to allow
                                     aliens to remain in the US
                                (2) Suspension of deportation ( may still be available)

                        b) Limitations
                              (1) Individuals promptly notified of removal hearings & fail to appear or receive voluntary
                                   departure but fail to leave on time, become intelligible to apply for any remedies for 10 years
                              (2) Aggravated felons are expressly disqualified from most of the major relief provisions
                                   including
                                        (a) Cancellation of removal, voluntary departure & registry
                                        (b) Conviction of aggravated felon precludes showing of good moral character which is
                                            a required element for most relief provisions
                              (3) Anyone who is deportable on terrorist grounds is also barred from several forms of
                                   discretionary relief
                                        (a) Cancellation of removal, vonluntary departure, registry
                              (4) DHS requires anyone who applies for a form of relief conferring right to reside in the US
                                   certain biometric data
                                        (a) Cancellation of removal, adj of status, registry & asylum


                        c)   Forms of Relief for removal
                                (1) TPS = Temporary protective Status
                                         (a) Designation given to individuals who are from countries Id‟d by Homeland Security
                                              as undergoing strife or unrest –where US has moral obligation to allow them here
                                              during time where TPS is assigned to that country
                                         (b) Its not a permanent designation – once the conditions are stable then that TPS status
                                              is removed
                                         (c) If you don‟t fine w/I time allowed then you lose that ability to apply
                                         (d) Its more like parole status

                        d) Today’s relief
                              (1) Voluntary Departure - if not requested then lost & ordered to be removed
                                        (a) Voids a formal order of removal against the alien
                                        (b) To avoid punitive order of removal – voluntary departure allows the alien to leave
                                            US at their own expense within time frame set by immigration judge (once they
                                            leave they can seek readmission at anytime without the 5,10,20 year time limits that
                                            come with formal removal orders)
                                                (i) Aggravated felons can‟t use voluntary departure its not available to them
Copyright 2010. All rights reserved                                                                                              11
                                         (c) If its requested at master calendar hearing – the judge can allow the individual 120
                                             days to leave
                                         (d) If alien waits until conclusion of individual hearing – the judge can only order a max.
                                             of 60 days to voluntarily depart
                                         (e) Level of Proof required – depends on when its requested
                                                   (i) Master calendar hearing – alien must make the following representations
                                                            (a) No other relief being requested
                                                            (b) Removeability is conceded – admitted all allegations
                                                            (c) Right to appeal is being waived

                                                   (ii) Conclusion at individual hearing – much higher level of burden for this one
                                                           (a) Must show they have been physically present in US for more than
                                                                one year prior to the notice to appear being served
                                                           (b) 5 yrs of continuing moral character
                                                           (c) Not a terrorist or aggravated felon
                                                           (d) Alien will leave at own expense and w/in time frame allotted
                                                           (e) Mechanism must exist to come back – an approved petition is
                                                                needed even if they want to come back as non-immigrant


              2.   Form to be asserted at the two hearings: Cancellation of Removal
                      a) Takes two forms – S240A
                               (1) 240A part A – relief available to those who are in removal proceedings and are lawful
                                   permanent residents for a period not less than 5 yrs (green card status for 5 yrs) – cut-off time
                                   (date of service of NTA)
                                        (a) Alien must also show he/she has resided continuously for at least 7 yrs in US (it can
                                             be lawful status or 2 yrs of unlawful status as long as its continuous)
                                        (b) What if alien was residing continuously and for 2 week period went to Bolivia and
                                             sought S240A part A – response to the fact they haven‟t lived continuously  brief,
                                             innocent, casual departure (Feludi case) – thus not broken – up to attorney to argue
                                             that it was brief, innocent, casual departure i.e., had to visit dying parents, home and
                                             community ties in US etc.,
                                        (c) 3rd requirement – alien can‟t be aggravated felon
                                        (d) if these conditions are met and proved at individual hearing – they are entitled to
                                             cancellation of removal – types of aliens that this would cover – alien that may have
                                             been permanent resident had a green card, got into little trouble but never got around
                                             to becoming citizen – overcome ground of removal by meeting requirements of part
                                             A
                                        (e) Cancellation of removal of permanent residents (violations of S237 i.e., criminal
                                             convictions)

                       b) 240 part B – extended to non-permanent residents (those w/o green cards, maybe here w/o inspection -
                          higher burden to meet
                              (1) Alien or respondent must prove they have been physically present in US for continuous
                                   period not less than 10 yrs
                              (2) Of good moral character during that required 10 yrs
                              (3) Hasn‟t been convicted of criminal grounds of admissibility or failure to register and
                                   falsification of docs
                              (4) Removal would result in exceptional and extremely unusual hardship to the aliens spouse,
                                   parents, or child who is either lawful permanent resident or US citizen – high standard –
                                   hardship not to the alien him/herself -- 32 yr old child doesn‟t qualify (has to be a child) S101
                                   (def. of child)

                                         (a) Hardship is determined by immigration judge
                                                 (i) Individual family ties in US
                                                 (ii) Individual‟s length of residence in US
                                                 (iii) Conditions of health
                                                 (iv) Country conditions in native country
                                                 (v) Aliens financial status
                                                 (vi) Occupation
                                                 (vii) Immigration history
Copyright 2010. All rights reserved                                                                                               12
                                                   (viii)     Community ties
                                                   (ix) Position in community
                                                   (x) Age at arrival in US
                                                   (xi) Current Age
                                                   (xii) Assimilation into US culture
                                                   (xiii)     Attachment to friends and community
                                                   (xiv)      Possibility of other means of adjustment of status – another way to get
                                                         a green card then this i.e., job, family member, may not be eligible for Part
                                                         B then
                                  (5) Note: Differences between A/B
                                          (a) Any criminal conviction in B you will not get relief but A allows it as long as its
                                              short of aggravated felon

                         c)   Waivers – waiver will overlook the grounds for removal
                                 (1) 212h wavier – for multiple criminal convictions, prostitutes, aliens involved in criminal
                                     activity who have assumed immunity, 30 grams or less of marijuana,
                                          (a) Communicable disease as grounds for inadmissibility – waiver available
                                          (b) it must be shown that allowing admission wouldn‟t be contrary to the national
                                              welfare, safety or security of the US
                                          (c) Alien has been rehabilitated OR
                                          (d) Is spouse, parent, son/daughter of US citizen or lawful permanent resident and
                                              extreme hardship would result (lower standard than that by required by Part B –
                                              same OJ factors would be used here) – hardship to the US citizen or lawful
                                              permanent resident spouse, parent, son/daughter
                                          (e) Doesn‟t apply to aggravated felons, murder convictions, conviction of criminal act
                                              involving torture,
                                          (f) Individual must also show 7 yrs continuous residency

V. ADMISSION ISSUES
     A. 2 categories of legally coming here
            1. Non-immigrants- come to the US for a specific purpose as designated by their Visa category for a stated period
                of time
                     a) they are in the US legally for a temporary period of time
                     b) this means that when they come here their intent upon admission is for a temporary stay w/I the US
            2. Immigrants who come here to make the US their primary residence on a primary basis

        B. 5 ways to enter the US
               1. With a Visa issued by the US consulate abroad
                        a) Visa is placed in the Passport to allow individual to come to the US and knock on the door and seek
                            admission
                                (1) Visa Doesn‟t guarantee entry
                                (2) Inspecting officer must determine if you are in fact coming for the stated reason
                        b) Consulate unit w/I United states authorized to issue it
               2. Individuals can obtain status of parole – which is an extraordinary means of entry a physical entry into the US
               3. Visa Waiver – works in favor of specifically designated countries & for those with B-2 visitor
                        a) Extended to specifically designated countries determined by dep of state
                                (1) Allows individual to come here and knock on the door w/o obtaining Visa from Consulate
                                (2) Allows them to come here based on B-2 visitor for pleasure
                                (3) Countries = that have historically shown low visa abuse of citizens of those countries usually
                                    Northern European countries
                                (4) This program doesn‟t exempt them from inspection and admission
               4. Can knock on the door and seek Asylum
               5. A lawful permanent resident who is returning the US will be making a lawful entry

        C. All entering US are subject to inspection & admission
                1. I-94 will be stamped with port of entry city where inspection takes place
                2. The date of their entry
                3. The visa classification using to enter
                4. The period of their authorized stay – the date by which they must either depart the US or must have changed or
                    extended or adjusted their status

Copyright 2010. All rights reserved                                                                                                 13
        D. When individuals is presented for inspection
              1. Presumption that all coming to the US are immigrants
              2. IF individual is coming as a non-immigrant that must be proved
                      a) That no immigrant intent and their stay be temporary

        E. Type of things port of entry Inspectors look for in determining whether to allow stay
              1. If coming w/o Visa but as a visitor and have all items with them – they may not be deemed to be coming for
                   temporary period of time and they could be turned back
              2. Young unmarried men from certain countries w/o no immediate family members who are coming as visitors –
                   suspicion raised that they want to remain on permanent basis

        F.   Period of Stay allowed – what is temporary?
                 1. Non- immigrant coming for temporary the visa classification determines how long is temporary
                          a) Visitors authorizes 6 month stay which can be extended in 6 month increments by filing for extension
                              of status
                          b) Which must be approved the Dept of homeland security
                 2. Visa may be issued by 5 years
                          a) This doesn‟t mean they can come here and stay for 5 years
                          b) Their period of state is dictated by the time period on the I-94 card
                 3. Students come here with F or M Visa
                          a) Their period of authorized stay is designated as D/S on the I-94
                                   (1) Duration of Status – indicating that Student is authorized to stay as long as they maintain full
                                        time student status in authorized college or university
                 4. Individuals coming with employment visa can stay initially 2-3 years that can be extended up to 6-7 years
                     depending on their visa category
                 5. TN Visa Holders are authorized to stay
                 6. Alien seeking admission can‟t fall under any of the categories of 212

        G. Visa Exempt
               1. Some instances where Visa is not necessary for person coming to the US as visitor –Canadians are Visa exempt
                   and I-94 exempt

        H. How does an individual obtain an Visa
              1. All applicants compete DS 156 non visa application filed with consulate abroad and called in for Visa interview
              2. Interview is mandatory at each consulate
              3. All will be interviewed at the Consulate
              4. Additionally males between ages of 17-46 must complete DS 157
                      a) Note: Procedures of each consulate varies but the visa turn around time is usually a few weeks

VI. NON-IMMIGRANT
      A. Basics
             1. Difference between Immigrant & Non-Immigrant visas
                    a) Non- immigrant visas are used for short periods of stay
                    b) Immigrant visas for permanent residence which leads to citizenship
                    c) Both are subjected to computer check
                            (1) Immigrant visa applicant must produce police certs from abroad & is put through FBI security
                                clearance
                    d) Letter designations attached to non-visa applicants which corresponds to the code that create them
             2. General
                    a) Restrictions
                            (1) subject to 212 restrictions
                    b) Identifying Visa Category
                            (1) Letter designations attached to non-visa applicants which corresponds to the code that create
                                them
                    c) Derivatives - All these visas allow for derivatives – spouses and children
                            (1) Children is different than sons and daughters
                            (2) Derivatives of L and H visa will work to enable to seek employment – apply for employment
                                authorization
                            (3) Other sections if they qualify on their own to apply for employment authorization then its ok
                            (4) Period of authorized stay given to derivatives is same as that given to the authorized visa
                                holder
Copyright 2010. All rights reserved                                                                                                  14
                        d) General requirements but for limited exceptions
                              (1) Every applicant for non immigrant visa between ages of 14-79 is required to interview in
                                   person w/ a consular officer

               3.   Processing of Visas
                        a) At 5 services centers
                                (1) CA , TX, Nebraska, Missouri, Vermont – that process applications
                                (2) Where application goes depends on what type of application requesting
                                        (a) Now in filing all applications for non immigrant visas you file with Vermont and all
                                            asylum go to Nebraska all I 130‟s go to CA

                        b) At the Boarder Processing for
                               (1) TN and L visas instead of having to go through services centers
                               (2) They will review and approve NAFTA applications at the boarders – person is issued an I-94
                                   right there
                               (3) Heely and Good child
                                        (a) Australian they knocked on the door and said they were going to school in the US
                                        (b) they were denied admission because they were using the Visitors B visa as pretext to
                                             get into US for school
                                        (c) Argument on appeal – school wasn‟t authorized under department of state so court
                                             held that they couldn‟t come in

       B. Non- Immigrant visa Categories : B1/B2 Visitor Visa – it covers 2 different groups of travelers

               1.   B1 – Visitor for business – allows individuals who are traveling for Bus purposes to enter the US for training
                    or conferences where the individual doesn‟t undertake any meaningful labor or skilled or non skilled labor

                        a) In this situation the visitor isn‟t entitled to earn any part of the its salary or compensation in the US
                        b) Compensation to be paid by an oversees employer of his activities done in the US
                        c) Entering under this category – the mere entry cause them to make certain representation about their
                           terms :
                                (1) They are coming for temp purpose
                                (2) Maintained residence in foreign country
                                (3) They have not intention of abandoining that foreign residency
                                (4) Also rep that they have intent to depart the US at the end of their requested stay
                        d) They are not entitled to engage in any commercial transaction or gainful employment
                        e) Example of this type of visa is an individual working for company which manufactures equip oversees
                           and K of sale of that time to an entity in the US
                        f) These K‟s provide that the selling company will provide upkeep and training for the machines and they
                           send rep over to do these things for the equip sold in the US

               2.   B2 – Visitor for Pleasure – come to the US for the purposes of visiting – issued in 6 month increments and can
                    be extended up to one year or beyond with good cause shown
                                  (1) Must show they have foreign residence abroad w/ no intent to abandon it
                                  (2) Can take up any employment here
                                  (3) Must show they have intent to return to home country at the end of period of authorized stay
                        b) Consulate abroad requires documentation that they will be returning to that country – must show deeds
                             to home/ rental K / bank statements / that they have job they‟ll be returning to / car titles
                        c) If these things aren‟t shown then the Visa won‟t be issued



       C. E Visa – an employment based non immigrant Visa – known as the Treaty Traitor/ Investor visa – issued for 2 years
          renewable indefinitely
              1. allow individuals to come to the US and undertake employment , but employment is specific to the company
                  that this the petitioner for them and the work for which they are approved for is undertaken in the US
              2. Here there is always a petitioner – an employer who wants to use the services of a foreign national in the US
              3. Procedure
                       a) Employer files a non immigrant visa application / petition which is specific as to the petitioning
                             company, the work to be undertaken, and the alien that has been Id‟d as the employee to be brought to
                             the US
Copyright 2010. All rights reserved                                                                                              15
                4.   Approval by Dept of State
                        a) Petitioning company must first be approved by the Dept of State as the company qualified to utilize the
                            E visa as a treaty traitor company or as an individual who is an investor in the US
                        b) For company to be first be approved for E treaty traitor status there must be an underlying treaty of
                            commerce or navigation of the foreign company of incorporation and the US
                        c) If not underlying treaty then they are not eligible for E visa qualification

                5.   Requirements
                        a) Individual company wants to be brought here must a national of the Country which was qualified for E
                            visa status but while the employee must be a nation of that country , dependents do not have ot
                            maintain the same nationality
                        b) Can be a new hire – they must be coming here for the sole purpose to carry on substantial trade
                            between the foreign country and the US OR if the E investor component is used where person coming
                            here using E visa – must show that they are coming here to develop & direct enterprise where that
                            individual has invested a substantial amount of capital
                        c) Individual investor must not be encumbered ie leveraged , must put up substantial amounts of his own
                            capital

                6.   E visa used with multi-national corps.
                         a) there is not limit on the number of E visa‟s that can be issued in a fiscal year
                         b) employer doesn‟t have to prove shortage of US workers
                         c) must not prove wage to be paid to workers
                         d) unlimited duration in visa in that it can be renewed indefinitely
                         e) E Visa allows Dual Intent – this allows them to change their mind and apply for a green-card once they
                              are here
                                   (1) Can start application for both at the same time

       D. Student Visas F 1– issued to foreign students who want to come here temporarily, solely for the purpose of undertaking
          a full time study at an institution that has been pre-authorized by Dep of State as school qualified to admit foreign
          national students
               1. 2 types but Both require the student be full time student at the approved school , requiring students to
                        a) gain admission to the school
                        b) the school issues to the student a completed I-20 form , this shows DHS that student has been admitted
                            and their estimated time to complete the full time course of study and certification that the student has
                            sufficient funds to under-write the cost of their education
                        c) the student must have a certain level of proficiency of the English language
                        d) student must show they have foreign residence with not intention of abandoning that residence
                        e) Must maintain a full course of study
                                 (1) what ever the schools full course of study is will suffice
                                 (2) ex school doesn‟t require summer classes
                                            (a) Exception to full load upon advice of school official where there are “initial
                                                difficulties with the English language or reading requirements”
                                            (b) Usually half the clock hours of the regular course of study
                                 (3) If unable to complete studies student applies to the university for an extension which will be
                                       granted only upon showing of “compelling academic or medical reasons, such as changes of
                                       major or research topics, unexpected research problems or documented illness”
                                            (a) University must inform USCIS for extensions
                                            (b) Student must agree to leave US at expiration of auth extension

                2.   Employment
                        a) Foreign students may work on campus as part of their edu programs for up to 20 hrs per wk while
                           school is in session and 40 hours during school vacations
                        b) Off-campus employment allowed only when unforeseen circumstances arising after admission make
                           employment after the first year economically necessary

                3.   2 types of Student Visas:
                         a) F- Visa Classification – for a course of academic study
                                  (1) must commonly used for college level and above college
                                  (2) student must reimburse the public body for the cost or tuition
                         b) M- Visa classification –authorizing vocational study

Copyright 2010. All rights reserved                                                                                               16
                4.   I- 94 has DS designation meaning
                          a) as long as they are full time student they have lawful status in the US
                          b) so there is not end date on the I-94 card

                5.   Student Visa provides for a component of practical training Or Optional Training
                         a) Allows person to work in the US for 12 months
                         b) Opition training – runs 12 months after graduation , can file for it and work in position that uses the
                             persons degree
                         c) allowing an individual at the end of completion of full time course of study to apply for work
                             authorization
                         d) this allows them to engage in authorized employment that has some nexus with their course of study-
                             it‟s a 12 month period which they can get paid unless this 12 months has been used up during their
                             course of study- this can be broken up
                         e) outside of this allowance they can‟t work but for extraordinary circumstances for off campus
                             employment
                         f) Application for extraordinary need to work this doesn‟t count towards the 12 months

                6.   Type of Institutions
                        a) Established College
                        b) University
                        c) Seminar
                        d) Conservatory
                        e) Academic high school, elementary school or
                        f) In a language training program in the US

                7.   Moving to different Visa Category
                        a) They get practical training component but if there is a willing employer they can move into non
                            immigrant employment visa such as H1B
                        b) Engineer student works for a year after grad then transitions into H1B

       E. J Visa – Exchange visitor visa
              1. What is it:
                      a) Exchange Visitor Visas are part of a mutual exchange program in which students, teachers, scholars ,
                          enter the country temporarily to pursue various educational related goals
                               (1) Purpose is to enable the visitor to benefit their countries of origin when they return
                      b) Studies must be part of a specific program approved in advance by the State Dept AND
                      c) Applicant must be sponsored by a US agency including the State Dept or Agency for International
                          Development
              2. Length of time Issued
                      a) Issued for 1 year in connection with established program of training or education
              3. Requirements for Renewal
                      a) Its renewable for 1 year periods for the duration of established program the J visa holder is engaged in
                               (1) ex Aux Pier program – Administered through established programs that have been approved
                                    through the Department of State
                                         (a) foreign national comes to the US for 1 year to live w/ host family, provide child care,
                                             and attend post secondary edu at least part time
                               (2) Educational and training programs – sometimes established through educational programs
                                         (a) No employment authorized
                                         (b) Required to maintain themselves w/I the parameters of the program
              4. Restrictions on Endorsement
                      a) It may have endorsement that attaches which is 2 year foreign residency requirement
                               (1) at the end of the program the individual must leave the US and return to their country for 2
                                    years before they are eligible to return
                      b) Restrictive endorsement placed on them is where the underlying program funding the program either in
                          whole or in part by the US or the applicants govnt
                               (1) In this case the govnt has interest in having the individual here to get the valuable training the
                                    enrich their country that‟s why they don‟t want them to stay in the US
                      c) Restrictions Can also be placed on individual where their edu or skill training is designated with a clear
                          need in their Home Country or the applicant came to the US to receive graduate training in medicine or
                          education

Copyright 2010. All rights reserved                                                                                               17
                5.   Restrictions on family
                         a) The visitor gets J-1 Visa ; their spouses & minor children get J-2 status

                6.   Why Choose J over F Visa?
                        a) J visa has more liberal employment rules both for the non immigrant applicant & for their spouse &
                           children
                        b) J visas provide for fellowship or other funding

       F. K Visa – Fiancé Visa – person wants to bring their fiancé to the US in order to get married – this is a hybrid visa
          because at first it‟s a non immigrant visa with ability to change into an immigrant visa

                1.   Fiancé who is oversees is admitted to the US under K visa
                2.   Once admitted and once met all requirements they are eligible to file for immigrant status
                3.   There is also a K 3 Visa – is used when US citizen married someone outside of the US and want to bring that
                     individual here
                          a) must file immigrant visa petition which currently take about a year to process
                          b) this allows the wife to be here while the process is completed

                4.   Requirements
                        a) They must have met in person w/I the past 2 years before filing for the Fiancé visa
                                (1) must show airline tickets or something like that
                        b) After they have met the US citizens files a petition here for an I-129
                                (1) if approved the fiancé gets a K visa & passport
                        c) once the fiancé enters the US a marriage must be performed w/I 90 days of the date of entry
                                (1) must be a legally recognized marriage ceremony
                        d) if marriage performed w/I 90 days – at that point the fiancé can stay here as lawful permanent resident
                            and file for green – card
                                (1) If no marriage w/I 90 days the fiancé must leave the country b/c after that time they are
                                      unlawfully present
                                (2) They can‟t extent the K visa if there is no marriage nor can they marry someone other than the
                                      petitioner for the K Visa
                                (3) I- 94 will also be issued for 90 days from date of entry not from date of visa in the passport

       G. R Visa- Religious worker visa
              1. General
                       a) Specifically for individual engaged in religious work
                       b) it provides of uncomplicated move to immigrant visa for those meeting the requirements
              2. Requirements:
                       a) applicant must have been a member in religious org for at least 2 years prior to the application
                       b) Underlying religious org must be a bona fide non-profit org
                               (1) Must have been provided 505 status by IRS
              3. Covers
                       a) ministers, priest and any other religious leaders
                       b) Lay workers working in a professional capacity in a religious vocation
                               (1) youth ministers
                               (2) but not the organists


       H. TN Visa – Non immigrant employment based visa
             1. General Rules
                      a) Created under NAFTA
                      b) Requires any visa applicant to be a citizen of Mexico or Canada
                              (1) Only 5,500 Mexicans are eligible to enter the US per fiscal year
                              (2) Canadian Admission is unlimited
                      c) There must be an employer petitioner who states that they want the worker
                              (1) they can file with the service center
                      d) Even if the NAFTA applicant is in the US they must physically exist and re-enter to renew their
                          application
                              (1) so they do this every year however if they do it at the service center then they don‟t have to
                                   physically make the exist and re-entry

Copyright 2010. All rights reserved                                                                                                18
                2.   Requirements Individual using this visa must be coming to the US to perform a schedule 3 job are specified
                     occupations approved for use under the TN visa with the exception of two they are all professional positions
                         a) Professional positions – professionals that require BA/BS degree
                         b) only 2 positions that don‟t require a BA/BS degree under this category
                                  (1) Management consultant – but does requires significant experience as one
                                  (2) Scientific technologist – does require that the individual be working in direct support of the
                                      supervising and degreed engineer
                                          (a) this position doesn‟t require any education however there are operating instructions
                                               indicating that person coming here in this position hold at least 2 years of education
                                               in a corresponding field

                3.   Length of time Issued
                        a) Issued in 1 year increments
                        b) must be renewed annually
                        c) however are renewable indefinitely – so someone could hold one for their entire natural life

                4.   NO DUAL INTENT is allowed
                        a) under this category they are representing that they don‟t intend on making US their permanent resident
                                (1) this is a legal fiction because they can move here under this visa and work here for the rest of
                                     their life
                        b) So if the individual wants ot become a lawful resident there is a conflict with holding this type of visa

       I.   Employment based Visas H & L
               1. General
                      a) These are specific to one employer and specific to a particular position with that employer
                      b) Foreign national admitted to the US is allowed to work for that employer they petitioned for and
                          position –
                      c) Doesn‟t allow change of employment w/o re-petitioning eve if change of status in position is w/I the
                          same employer

                2.   L-Visas Intra- company transfers - workers transferred among offices of a multi national corp
                         a) Requires international or multi national corp that has component outside of the US and a component of
                             the same corp in the US
                                  (1) it could be a parent, subsidiary or some sort of affiliation with the two
                                  (2) Unlike E Visa they can be a citizen of a country different than the citizenship of the
                                      corporation
                         b) L visas can be processed in a port of entry
                         c) Benefit of the L Visa is that its not subject to any prevailing wage requirements
                                  (1) employer is free to pay what they think is a proper wage for that position
                         d) no limit on the number of L visas that can be issued in a fiscal year

                         e)   Requirements
                                 (1) international corporate structure
                                 (2) employee must have been employed with out of seas company for at least one full year out of
                                     the immediately preceding 3 years
                                 (3) purpose of the transfer must be that employee is being sent to the US to undertake either
                                     managerial or executive duties – which is an L1-A visa or Must be coming to the US to
                                     undertake a position that requires specialized knowledge – L1-B visa
                                          (a) L1-A entrants , managerial or executive visa can come for max time of 7 years
                                          (b) Visa is issued in 2 year increments for a max of 7 years
                                          (c) The L1- B visa for specialized knowledge is issued for max time of 5 years but
                                               issued in 2 year increments
                                 (4) Can‟t be new job duties or new hires - Employee must be continuing in the position from
                                     oversees and they are coming to the US to continue in that position here

                3.   L1-A Visa
                         a) General - it‟s a good category if the person wants to apply for lawful permanent residency status
                               (1) L visa dependents come in under L2 visa and they are entitled to apply for employment
                                    authorization as a derivative of an L visa
                               (2) Can skip over labor specifications for manager

Copyright 2010. All rights reserved                                                                                                19
                       b) Manager is someone who primarily manages the org department, sub division function or component
                          of the company or supervises or controls the work of supervisory professional or managerial
                          employees
                               (1) So the employee is not a first line manager or
                               (2) If a manager does not manage supervisor control employees- must show they manage an
                                   essential function of the company
                               (3) Manager Employee must have the authority to hire fire or recommend personnel actions
                                   against employees
                               (4) Must exercise discretion over day to day operations of the company

                       c)   Executive
                               (1) directs the management of the company
                               (2) Establish goals and policies of the company
                               (3) Is given ability to exercise wide latitude in discretionary decision making
                               (4) And receives only general supervision or direction from higher level directors, or stockholders

                       d) In preparing application for either manager or executive
                              (1) Employer writes support letter detailing how the identified employee meets these
                                  requirements and uses exhibits to show this
                                      (a) Ie a corporate organization chart showing how that position
                                      (b) Proposed org chart showing how they fit into the org in the US
                                      (c) Must show they worked 1 year out of the 3 preceding years – W2 equivalent used
                                      (d) Letter must show how the company meets requirements and how the individual
                                          meets the requirements from moving from out of the US to the US company
                                      (e) Department of homeland security wants to see how the company can continue to pay
                                          the salary of the individual being transferred by the outside company OR if it‟s a
                                          transfer they want to see that the company in the US can maintain that wage

                       e)   Employee Requirements
                               (1) Employee being transferred must show that hey have specialized knowledge of the companies
                                   product , service , equipment , research or management or other interest of the company AND
                                   the application of one of these components into the international market or that the individual
                                   l has an advanced level of knowledge of a process or procedure of a company
                               (2) Specialized knowledge is not just a skilled worker- its shown by how the individual has the
                                   specialized knowledge o the product, technique of the company
                                        (a) There is not degree requirements for an L visa


              4.   H Visa – limited in duration & in number
                      a) H1 C visa – for nurses
                                (1) allows foreign trained nurses to work temporarily in US hospitals ( hospitals in health
                                     professional shortage)
                                          (a) areas designated in need of health care professionals
                                (2) this classification applies to persons coming to the US temp to perform nursing services at a
                                     facility designated as a health professional shortage area
                                (3) Hospital must initiate the application


                       b) H2 Temporary / Seasonal agricultural visa
                             (1) limited to temporary workers coming to the US performing agricultural labor or services on a
                                 temp or seasonal nature
                                      (a) Covers Migrant workers, gardening, yard service workers
                             (2) TO qualify applicant must be coming here temp to the US to perform tem services or labor
                             (3) Petitioning employer must show that there are no US workers capable of performing the
                                 services
                                      (a) must attain a labor condition application

                       c)   H4 reserved for dependants of H visa holders or derivatives
                                (1) no employment authorization to these people \



Copyright 2010. All rights reserved                                                                                             20
                      d) H1 B provides visa opportunity for person in specialty occupation or a fashion model of
                         distinguished merit or a person providing services relating ot the department of defense see Section
                         101 A15(h)
                                      (a) most commonly used for person falling under specialty occupation
                                      (b) doesn‟t require showing that they maintain foreign residence

                              (2) General
                                     (a) Employer must forecast their need to this category probably 6-8 months out since the
                                          application must be filed by March of the preceding year in order to be in line for the
                                          first 65 to be chosen
                                     (b) Prevailing wage must be paid to these individuals
                                     (c) must be coming here temporarily
                                     (d) not required to show they maintain foreign residence
                                     (e) must obtain labor condition application
                                     (f) Only this category requires that if the foreign national employees work is terminated
                                          the employer is responsible to pay for his fare back to their country

                              (3) How often Issued & how many
                                     (a) these are issued in 3 year increments with extension allowed up to 6 years unless
                                         there is labor cert approved or an I140 approved under employment based petition
                                         then you can exceed the 6 years
                                              (i) Reaching max of stay allowed ex reaching end of 3 years and you want to
                                                    get another 3 years must apply for an extension to extend the status to its
                                                    max (6 years)
                                              (ii) Once expired, the 6 year then you must leave the US and remain outside for
                                                    1 year before you can come back and undertake an H1 visa status again.
                                              (iii) Processing for change or status or extension takes about 60-90 days
                                     (b) Limited to duration – 6 year max but its also limited in number
                                              (i) Congress has authorized 65K visas in this category per fiscal year which
                                                    starts October 1st
                                              (ii) Additional 20k set aside for those positions requiring a Masters degree or
                                                    higher
                              (4) Denial
                                     (a) If denied, at that time unlawful presence begins to accrue
                                     (b) govnt states that they will allow a reasonable amount of time for the H1B whether
                                         lost job or denied application to embark on another H1B application
                                     (c) no count is given for what is reasonable

                              (5) Porting from one employer to another
                                      (a) Employee may start working for a new employer upon the filing of the new H1b
                                          application
                                              (i) Filing has not been defined – 3 different basis used to determine what filing
                                                    is:
                                              (ii) some people use the mailbox rule: once you put it in the mail its considered
                                                    filed
                                              (iii) Some people send it via certified mail or
                                              (iv) Some Wait until receipt notice is generated


                              (6) Requirement
                                     (a) H1B requires employee working in a specialty occupation
                                     (b) Specialty occupation – is one that requires distinguishing merit & ability
                                     (c) It also requires that the employee be considered a professional


                              (7) 2 step Analysis Prospective emplr c/use determining whether specialty occupation
                                       (a) Is the position in which the employee will be placed one that required distinguishing
                                           merit and ability?
                                                (i) This category used Usually used for:
                                                         (a) Engineering
                                                         (b) Software development
Copyright 2010. All rights reserved                                                                                           21
                                                        (c)   Accountants
                                                        (d)   Chiropractors
                                                        (e)   Computer programmers
                                                        (f)   Dietician
                                                        (g)   General managers where business is complex
                                                        (h)   Graphic designers
                                                        (i)    Librarian
                                                        (j)   journalist

                                      (b) Is the beneficiary a professional?
                                               (i) whether he holds a bachelors degree or a functional equivalent of a
                                                     bachelors degree-
                                                          (a) Functional equivalent which can be determined by work exp alone
                                                               or a combo of work exp & post secondary edu
                                               (ii) 3 to 1 rule used to measure work exp alone or work exp & post secondary
                                                     edu
                                                          (a) for every 3 years of work related experience you can attach 1 year
                                                               equivalency of post secondary edu
                                                                    (i) exp 1 full year of edu is given 1 year
                                               (iii) these determinations are made by professional services which have ot be
                                                     attested to by professional
                                                          (a) that based on the evaluators credentials they can say that the
                                                               employee has the work exp & edu or edu alone to equal a BA
                                                               degree

                             (8) Labor Condition Application
                                    (a) once taken the 2 step analysis & credential evaluation then must submit a labor
                                        condition application under obtained from the Dep of Labor so the DHS evaluates
                                        these applications
                                    (b) File 212(n)(1) app & include certified labor condition

                             (9) Attestations made by Employer in the Application
                                     (a) That during the period of employment the employer is offering and will continue to
                                          offer during the period of authorized employment wages that are at least the actual
                                          wage level paid by that employer to all other individuals with similar exp and
                                          qualifications for that specific job OR
                                     (b) The employer will pay the prevailing wage level for the occupational classification
                                          for the area of employment, which ever is greater of the two
                                               (i) Individual states figure out the statistical wage
                                               (ii) SWFA – attorney must go to the State work force agency and provide them
                                                     of the description of the job duties, requirements both edu and training or
                                                     previous exp req, and the city where the alien will be working and the local
                                                     state work force agency which is the agent for the Dep of Labor , they will
                                                     send back to you a prevailing wage determination
                                               (iii) Employer is required to pay at a min the wage determined by the SWFA

                                      (c) attesting that they will provide working conditions to the immigrant that won‟t
                                          adversely go against workers conditions of workers similarly situated
                                      (d) Attest that there is no strike or lock out during labor dispute
                                      (e) Employer with either provide notice of the job opportunity to a bargaining unit if
                                          there is one at the company or if there is not one then the employer will post a notice
                                          of the job opportunity at the work site
                                               (i) Note: this means post a sheet of paper on the wall
                                               (ii) For an H1B employer is not required to “publish” notice of the job
                                                    opportunity only required to “post”

                                      (f) Company not having bargaining unit the employer will attest that they will not
                                          displace or have not done so 90 days prior to filing and will not do so 90 days after
                                          filing AND the petitioning company will not place the employee with another
                                          company who has displaced a US worker w/I the last 180 day period

Copyright 2010. All rights reserved                                                                                           22
                                            (g) Employer attest that he has taken good faith steps to recruit US workers for the
                                                petition that he has offered the position for any US worker who has applied for the
                                                position
                                            (h) Employer will make the labor condition appl available for inspection at the principle
                                                place of employment or at the work site
                                                     (i) for anyone who wants to see it

                                   (10) If Visa Category Denied
                                            (a) If denied, at that time unlawful presence begins to accrue govnt states that they will
                                                 allow a reasonable amount of time for the H1B whether lost job or denied
                                                 application to embark on another H1B application
                                            (b) no count is given for what is reasonable

                                   (11) Changing Employers
                                           (a) Employee may start working for a new employer upon the filing of the new H1b
                                               application
                                           (b) Filing has not been defined – 3 different basis used to determine what filing is:
                                           (c) some people use the mailbox rule: once you put it in the mail its considered filed
                                           (d) Some people send it via certified mail or
                                           (e) Some Wait until receipt notice is generated

                          e)   If this category has been fulfilled employer can see if other categories are available:
                                    (1) L1A or L1B or TN has the company been approved for an E visa , can they come in as B1
                                         visa

                 5.   Summary of requirements of H1B Visa
                         a) Equivalency of edu
                         b) Prevailing wage
                         c) Post notice of job opp at place of bus or work site
                         d) Employer must file and sign labor condition application , employer making attestations as to wage and
                            working conditions for the H1B employee
                         e) Then application package is ready to be field with the USCIS on form I 129 application for non
                            immigrant worker
                         f) Note 65K cap only applies to first time applicants

                 6.   Other Non immigrant Visas ( others mentioned previously are most used)
                         a) Athletes
                         b) Diplomats
                         c) Individuals providing info of national security
                         d) Residence from northern Ireland- for workers


VII. OTHER ISSUES FOR NON IMMIGRANT & IMMIGRANT VISAS
       A. Extension of Status & change of status
              1. Extension Extending visa category that you are in
              2. Change of status - Making change of status from one visa category to another individual must be in status at the
                  time the appl for this is made
                       a) individual must be in status at the time the appl for this is made , if underlying status has been chanted
                           the appl can be filed in the US but the change or ext must go abroad and get that status at the consulate
                           aboard
                       b) Falling out of status consequences
                                (1) By being out of status for more than 6 months they can‟t file the ext or change of status – they
                                     must leave and after that time they can‟t come back for 3 years
                                (2) If they are out of status for a year or longer and want ot change status or extent – they must
                                     leave and go to consulate abroad and they can‟t come back for 10 years
                                (3) So app must be filed before the expiration of the visa however in the first 6 months they can
                                     go to consulate abroad and apply for the change or ext w/o having consequences attach
       B. Adjustment of Status
              1. If a non immigrant in the US who has filed for a green card ( ie changing from non immigrant to immigrant
                  status) and upon approval of the appl they are said to the have adjusted status which occurs only in the US
              2. If the change occurs abroad it is done by consular processing
Copyright 2010. All rights reserved                                                                                                  23
        C. Labor Condition application
              1. With the H visa categories you need to attain a labor condition application from the US dep of Labor
              2. It‟s the LCA that attaches to the H visa category
              3. H1 B and H 3 use this

        D. Labor certification
              1. Immigrant employment visa uses this
              2. Employment based labor residency needs this

        E. Non Immigrant visas
              1. Issued for specific purpose
              2. Intent not to remain
              3. Issued for Limited of period of time
                      a) As little as 6moths up to 7 years for L1 A
              4. Limited renewal for TN‟s and E‟s
              5. Of all visas H1b has most constraints
                      a) Limited by duration and number
                      b) Unlike the L and TN and E Dep of Labor says how much wage must be given

VIII.   IMMIGRANTS
        A. General
              1. Immigrant is an individual who has been lawfully admitted for perm residence in the US
                    a) Lawfully admitted for perm residence – means status of having been accorded the privilege of residing
                        permanently in the US in accordance with the immigration laws
                    b) Evidence that individual has been accorded lawfully residence is manifested in the issuance of the
                        Green Card which is I551 Document
                             (1) Green Card - When a green card has an expiration date on it , it means the card expires not
                                  the status ,all you have to do is renew it on-line

                         c)   Immigrants can either be coming from abroad or they may be present in the US
                                 (1) If coming from abroad their consulate processed their green card aboard
                                 (2) If have green card issued in the US they are adjusting their status
                                 (3) In either case They must knock on the door b/c there is presumption of inadmissibility which
                                     must be overcome pursuant to 212

                         d) Intent When they come the US Immigrant must have the intent ot make the US their permanent home
                                (1) They can have multiple residences but the intent must be ot have the US their home
                                (2) Intent coupled with the annual length of stay that the person has in the US that determines
                                    their permanency of status
                                         (a) If you are out of the US for extended period of time even w/ green card presumed ot
                                             have abandoned lawful perm status
                                         (b) if you come back you are going to be placed in removal proceedings here must show
                                             that your intent to remain here perm overrides the actual stay outside of the US
                                         (c) as long as return to the US every 6 moths you are ok but may be stopped and
                                             questioned that you are suing the green card as pretext to live somewhere else




                         e)   Benefits enjoyed
                                 (1) They can stay permanently so long as they refrain from deportable misconduct
                                 (2) They may work
                                 (3) They qualify for some govn‟t provided benefits
                                 (4) May become citizens once meet requirements
                                 (5) Note: b/c of these benefits admission standards are more rigorous than those of non-
                                       immigrants

                         f) To qualify for admission, an immigrant must affirmatively fit w/I one of the admission categories
                         g) Most categories are subject to annual numerical limits:
                                (1) Family sponsored, employment based immigrants, diversity immigrants

Copyright 2010. All rights reserved                                                                                             24
                                 (2) Exempt from General Quota
                                        (a) Immediate relatives
                                        (b) LPR”S returning from temp visits abroad
                                        (c) Children born to LPR”s temporarily abroad
                                        (d) Persons who receive certain perm forms of discretionary relief from removal
                                        (e) People fleeing from persecution HOWEVER they are subject to their own quotas
                                        (f) Parolees


       B. Ways to attain lawful perm residence status
             1. Favorable grant of Asylum
             2. Through Visa Lottery program
             3. Through a qualifying family member or through employment


       C. Family Based Immigration - family member M/B either US citizen or lawful permanent resident
             1. Basics
                     a) Qualifying family member must be a close family member who is either a US citizen or who holds
                         lawful perm residence status
                     b) Lawful permanent residence doesn‟t not provide
                              (1) Citizenship
                              (2) The right to vote
                              (3) Right to re-enter the US and bypass the inspection process
                                       (a) BY re-entry lawful perm residence must be inspected pursuant to section 237
                     c) Lawful perm residence is not permanent b/c can be relinquished
                              (1) taken away if person placed in removal and subject to be taken away per 237
                     d) Excessive absences considered abandoned
                              (1) Must have abandonment coupled with intent to abandon – remained outside the US for 6m-1
                                  yr is presumed to have abandoned their lawful perm status
                              (2) By abandonment coupled with intent to abandon – remained outside the US for 6m-1 yr is
                                  presumed to have abandoned their lawful perm status
                                       (a) if outside for 1 yr or more is said to have conclusive abandoned their lawful perm
                                            residence status
                              (3) It must be physical presence & intent to abandon lawful perm status
                              (4) If you plan on being abroad for a long time you can file for a re-entry permit that will allow
                                  you
                     e) With exception of asylum like any other categories of visas there must be a sponsor for an immigrant
                         visa
                              (1) Family based immigration – sponsor will be a close family member
                              (2) employment based green card application – sponsor will be the employer

               2.   How a family member can petition for another family member
                       a) Person who is physically here – petitioner files form I-130 w/ DHS which establishes relationship
                            between the family member and the petitioner.
                       b) Individuals holding qualifying relationship to petition for other family member:
                                (1) parents of adult LPR/s
                                (2) Children
                                (3) spouses
                                (4) siblings

                        c) Once the I-130 is filed they examine the qualifying relationship by submitting evidence of the
                           qualifying relationship
                               (1) ex if spouse must submit marriage license which is recognized in law and the ability of the
                                    two individuals to marry
                               (2) Parent petitioning for child must show birth cert
                               (3) Siblings must show birth cert showing common parent , if name changes b/c of marriage must
                                    show marriage license or if not born in the US show cert of Naturalization or passport w/ info
                        d) Once I 130 approved and relationship established individual can apply for Green card
                               (1) If they are in the US they apply for adjustment of status
                               (2) If not physically present in the US they file appl of Immigrant visa in consulate abroad –
                                    which is called consular processing
Copyright 2010. All rights reserved                                                                                            25
                       e)   After I 130 filed DHS issues Receipt notice given by Dep of homeland security indicating
                                (1) petitions received by them
                                (2) it has a receipt date which establishes the immigrating individuals priority date
                                          (a) states when they can apply for green card

                       f) Overstays will not be forgiven in any preference categories unless they aer parents, spouses of children
                          otherwise would be barred by 3yrs from coming back
                              (1) Difference between child and son and daughter importance
                       g) Once close family relationship is established they can file w/o waiting to preference category

              3.   Note:
                       a) Once green card is issued must wait 5 years to apply for citizenship unless married to US citizen then
                          can obtain citizenship after 3 years
                       b) Once close family relationship is established can file w/o waiting for preference category

              4.   Family based petitions are broken down into Preference Categories
                      a) Unlimited Immediate relatives
                              (1) Spouses, parents , or children of US citizens – don‟t fall w/I preference category – which
                                   means they are allowed immediate issuance of visa and no limitation on number to be issued
                                        (a) Aging out protections
                                                (i) When have approved family based petition and by the time the childs
                                                     priority dates comes around they are no longer in that category because they
                                                     turned 21.
                                                (ii) There is legislation that prevents this aging out

                       b) Other Categories state who falls w/I the category & when individual is eligible to apply for Green Card
                              (1) Petitions filed by citizens for unmarried sons & daughters
                              (2) Spouses and children and unmarried sons & daughters of perm residence
                                       (a) Spouse of children of lawful perm residence
                                                 (i) Children are birth to 21
                                       (b) Unmarried sons and daughters – over age 21
                              (3) Married sons and daughters of citizens
                              (4) Brothers and sisters of citizens

              5.   Adoptions/ Illegitimates
                      a) Adopted children
                               (1) Adopted children are entitled to secure immigration benefits thought their adopted family
                                    members and visa versa
                               (2) once they are formally adopted it cuts off any right that adopted child has to provide
                                    immigration benefit to its natural family members
                               (3) it must be a formal adoption recognized by the US even though the US petitioning person has
                                    raised the child since birth
                               (4) Step children are considered as natural children
                               (5) no formalized papers are required only petition that there is a relationship between the
                                    petitioner and the step children‟s natural parents ( that they are married)

                       b) Illegitimate child
                               (1) Petitioning for close family relative , child often times parents aren‟t married
                               (2) Natural parent is entitled to make a petition for an illegitimate child ]
                                        (a) must show they assisted in the contribution of well being of the child during the first
                                             18 years

                       c)   Foreign adoptions are allowed
                                (1) Most typical are of orphans – however must prove they are orphan
                                (2) one or 2 parents of that child must be proven tot have pre-deceased that child and the second
                                     parent is unable to care for that child
                                (3) if established then they can come to the US as citizens as long as the parents are citizens
                                (4) Formal decree entered where child has be formally adopted outside the US




Copyright 2010. All rights reserved                                                                                             26
       D. Marriage Fraud Act
             1. Provides , if at the time that the green card is conferred to the non US citizens spouse and the parties have been
                 married for less than 2 years-
                     a) Once you marry must file a adjustment of status before the expiration of another 2 years , this is to
                          show that during the preceding 2 years you had a bona fide marriage
                     b) Once adjustment of status application is filed the non US citizen spouse is interviewed to determine
                          that the marriage was bona fide marriage ie that it was not entered into to assist someone in getting a
                          green card
                     c) If the proven bona fide and parties have been married for less than 2 years conditional green card is
                          issued which is conditional for 2 years from the date its issued , they must file additionally to prove
                          that they have been married for 2 years
                               (1) they want to see joint income, health care benefit, children, life insurance, family pictures
                                    together
                               (2) 90 days before the second year anniversary of the person‟s admission for perm residence a
                                    joint petition for removal of condition must be jointly filed
                                         (a) they must appear at interview with that petition
                                         (b) If joint petition isn‟t filed on time or w/o good cause either fails to appear then perm
                                              residence it TERMINATED
                     d) If Dept of Homeland security is satisfied by paperwork they will approve the non citizen spouse for
                          unconditional lawful perm residence
                               (1) if not satisfied that paperwork was strong enough they will call the couple back in for another
                                    interview and during this interview they are separated and asked the same questions
                               (2) even after this if still uncertain they will send officers to the house to determine that there is a
                                    commingling of personal items in the house
                               (3) Favorable decision leads to removal of the condition
                               (4) Unfavorable decision leads to perm res status being terminated
                     e) If issued conditional green card but they separated but not yet divorced they can still sign the
                          application jointly
                               (1) but if there is a termination of the marriage before the 2 years I 75 must be filed immediately
                     f) if divorce only immigrant must sign it in form of a waiver application
                               (1) they must show that even though they are divorced they entered into the marriage in good
                                    faith and something caused the marriage or break down or there was domestic abuse and this
                                    will stop the removal proceedings

                2.   Separation or Termination of Marriage
                        a) If issued conditional green card but they separated but not yet divorced they can still sign the
                             application jointly
                        b) If there is a termination of the marriage before the 2 years I-75 must be filed immediately
                                 (1) if divorce only immigrant must sign it in form of a waiver application
                        c) they must show that even though they are divorced they entered into the marriage in good faith and
                             something caused the marriage or break down or there was domestic abuse and this will stop the
                             removal proceedings

                3.   Removal and Marriage
                        a) If someone is put in removal proceedings and they get married they get issued visa & may taken out of
                           removal proceedings
                        b) However this gets more scrutiny than during regular marriage proceedings

                4.   Proxy marriages
                        a) Person Not married in each others company must prove consummation of that marriage
                        b) Non US citizen if put into removal proceedings for marriage fraud and removed they can‟t ever come
                            back o the US on immigrant visa status and the US citizen will be subject to civil and criminal charges
                        c) If you get married and get your green card then divorce there is a presumption of fraud and then
                            petitions for a second spouse w/I 5 years of the petitioning person
                                 (1) can be rebutted by clear and convincing evidence

                5.   Same Sex Marriages
                        a) Immigration act overrides same sex marriages recognized else where – its not recognized as a valid
                            family relationship
                        b) Dept of homeland security may admit the non US citizen partner on a visitors visa which they will
                            renew on a regular basis – its up to the discretion of the officer
Copyright 2010. All rights reserved                                                                                                 27
       E. Employment Based Immigration
             1. General
                    a) An Employer has the right to file or support an individual in the quest to get a green card
                    b) The employee or beneficiary of the green card does not have to have a pre-existing relationship with
                        the employer the application may be for future new employment
                             (1) However its common for employers to try to get green card for current employees (employees
                                 who are current employment based non immigrant status)
                    c) Employment based immigration is prospective ( in the future)
                             (1) The employee doesn‟t have to be in the US they could be waiting outside the country
                    d) The employee must show that they are not inadmissible to the US
                    e) They must show thru the employment based green card process that the individual aliens employment
                        in the US won‟t adversely affect US workers
                             (1) this burden is met by obtaining from the Dept of labor a certified application for labor
                                 certification

                         f)   Labor certification for employment based processing
                                  (1) Petitioner is a company that want to hire an individual on a perm basis so that they could be
                                      accorded green card status
                                  (2) Because the benefit that follows from a successful green card application is so successfully- ie
                                      employee receiving lawful permanent status , burdens of proof are much hire than when
                                      seeking non immigrant employment based visa
                                  (3) Reason why labor cert is required here is to provide for the testing of the current job market to
                                      determine that there are no US workers available for the job being offered to the National and
                                      that no US worker will be adversely affected by the hiring of the foreign national

                2.   Employment Based Permanent Residency
                        a) Dept of homeland security has developed a preference schedule for the Empl Based status similar to
                           that of the Family based
                        b) States at what time an individual who‟s been approved for employment based green card can actually
                           file for adjustment of status
                        c) those who have I 130 must wait until their priority dates comes up on the visa category

       There are 6 preference categories

       F.   EB1 category( First preference)
               1. Requirement Those able to demo extraordinary ability in the arts, sciences, education, business or athletics
                    which has been demoed by sustained national or international acclaim and whose achievements have been
                    recognized through the field by expensive documentation
                        a) Must show sustained national or international acclaim

                2.   This category stands out from other categories
                         a) b/c extraordinary based aliens don‟t need offer for employment nor a need for labor certification



                3.   Outstanding Professors and Researchers category
                        a) Importance of this category
                                (1) This allows avoiding the labor certification processes
                        b) Requirement
                                (1) Must have a petitioner – someone likely to employee an outstanding prof or researcher
                                         (a) Must have offer of employment
                                (2) Individual must have at least 3 years of experience in the field
                                (3) Must be recognized internationally in the field

                4.   Multi-National executives and managers
                        a) Requirement
                                 (1) Must show they‟ve been employed for 1 year out of the 3 previous years by corp, firm or
                                     other legal entity that‟s outside of the country
                                 (2) purpose for coming here is to render services to the same employer or subsidiary in a
                                     managerial or executive position

Copyright 2010. All rights reserved                                                                                                 28
       G. EB2 Professionals & persons of exceptional ability (second Preference )
             1. are members of the professions that hold advanced degrees or
             2. bb/c of their exceptional abilities in the … they will benefit in a prospective manner in the economy, cultural
                 system of the US
                      a) Exceptional ability is defined in reference to the national economy
             3. No Numerical limits other than those in Visa categories in the bulletin
             4. Requirement
                      a) Employer petitioner is required , offer of employment
                      b) must have approved labor certification
                               (1) Labor Certification requires that employer must have shown that there are no ready willing or
                                   available US workers to undertake the position being offered to the US worker
                                        (a) This is done by the employers attorney undertaking “real world requirement efforts”
                                        (b) these are dictated by terms of PERM – Program electronic review management
                                        (c) Under PERM Dept of Labor dictates specific steps to show that employer has
                                            attempted to find a US worker available & able , to do work offered to the foreign
                                            national
                                        (d) PERM was instituted in March 2005 – before this it may have take 3-5 years or
                                            longer to get labor cert and if the employee fell under one of the categories it took
                                            even longer

                        c)   PERM Steps to the taken and comply w/ real world requirement efforts
                                (1) Lawyers must first determine the job title & the job description and make sure its fits into the
                                    general job description of the DEPT of Labor and on the web site SOC
                                (2) Then determine whether this is a profession or non professional position b/c there are
                                    different requirements of the different areas
                                (3) For both Profes & non professional first step is to place a job order with the state workforce
                                    agency – they will place add and collect resumes
                                (4) Next both professional & non professional ad must be placed n the Sunday newspaper of
                                    general circulation
                                (5) Next notice of the labor cert application process must be posted in the web site
                                         (a) If non professional position requirement ends
                                (6) If professional position additional steps needed: Need to do 3 of these
                                         (a) employer can seek US workers for that position at a job fair the web site of the
                                              employer can be used to advertise the position or web sites other than that of the
                                              employer (professional ones)
                                         (b) Employer can choose to require on campus on trade or professional orgs ,
                                              requirement agency‟s or headhunters or radio or TV
                                         (c) If in response to these efforts there is one US worker, qualified willing and able the
                                              deal is off unless the employer can hire both US workers and foreign national is
                                              more than one position is available , other wise employer is prohibited from hiring
                                              the individual and labor cert will not be approved
                                         (d) employer is not required to hire the US worker but can‟t go any further
                                         (e) the responses must be looked at to see if the US workers met the exact specs of the
                                              job description – if they fall short of any of the qualifications they are not qualified
                                              for that job
                                (7) Dept of labor gives a range of what you can seek for qualifications for any position – so
                                    employer can based on these requirements tailor the job description to exclude as many as US
                                    workers as possible
                                         (a) Look at education requirements and exclude all that fall short of what the Dept of
                                              labor wants for that position
                                         (b) The more work experience that is required the fewer job applicants will qualify
                                         (c) So Extraordinary requirement will be deemed invalid unless you can show business
                                              necessity/ purpose
                                (8) However the higher the requirement the higher the job salary will be

                        d) Making adjustment to labor requirement to get around having to hire US worker
                              (1) The requirement placed by the lawyer will not be viewed until the appl is filed wit the dept of
                                  labor so you can have the company adjust the job requirements to bring in the foreign national
                                  and exclude all other US workers who would otherwise qualify



Copyright 2010. All rights reserved                                                                                                29
                         e)   No requirement of pre-existing employment relationship Prospective employee national doesn‟t
                              have to be employed during the labor cert or I140 Process because the employment is prospective – it
                              comes into fruition after the entire process
                                  (1) Though its common that they do
                                  (2) Once have fulfilled the recruitment if you get matches for the job must abandon the labor cert
                                       process
                                           (a) If you don‟t get responses or responses don‟t have qualifications then can file the
                                                labor cert
                                  (3) Dept of labor will review application that if the requirement steps were taken
                                           (a) Turn around time for ETA 9089 is 3-6 months

                         f)   What dept of labor will consider valid for rejecting US worker
                                (1) Employer can‟t disqualify candidate who is able, willing and meets qualifications
                                (2) Can disqualify if the requirements haven‟t been met unless they can acquire the job
                                     requirements during reasonable period of training on the job
                                (3) Employer can reject applicant if employee doesn‟t want to accept the place of employment or
                                     rate of pay being offered
                                (4) Once labor cert is returned as certified by dept of labor the employer & foreign national can
                                     go on to the next step

                         g) Once application is certified
                               (1) Must take your info & place it in front of Dept of Homeland Security
                               (2) I140 Immigrant petition for alien worker & support letter & certified labor certification all
                                   field with Dept OF homeland security to determine that this foreign national does have the job
                                   experience as shown by letters from former employers , degrees also for edu must be shown
                                   and letter by employer why individual is needed for the job
                               (3) Once dept of homeland sec approves it

                         h) Foreign national can file for adjustment of status
                                 (1) IF the individual preference category numbers are current they can file for adj of status
                                     simultaneously with the I 140
                                 (2) If individual is oversees or priority date not current file I 140 get approval & wait until
                                     priority date becomes current
                                 (3) Once current if they are here and in status then they can file for adjustment of status
                                 (4) If oversees when priority date becomes current they can consular process
                                 (5) Once any of these approves they get a Green card
                         i) Open Employment Unlike Marriage based with 2 year residency component for parties married less
                            than 2 year- employment based has unrestricted visa and now they have open employment can work
                            for anyone they want

       H. Skilled workers professionals and other workers ( 3 rd preference)
               1. Requirement
                       a) Job offer and
                       b) Labor certification
       I. Special Immigrants (4th preference)
               1. those who have worked aboard of the US govnt , religious workers, specified employees of the Panama Canal
                   Co or the US consulate general in Hong Kong , certain retired employees or family members
               2. No labor cert but job offer is required

       J.   Investor category (5th preference)
                1. No job offer nor labor cert required, but must employ people
                2. Requires substantial business investment in the US – 1 Mil or 500k for certain targeted areas as needing
                    investment as determined by Dept of Homeland security
                         a) Investment could be
                                  (1) Cash , equipment , other capital
                                  (2) Investment can come from funds held by husband and wife
                         b) Not investment
                                  (1) unsecured promissory note
                                  (2) loan taken from bank with investment as security
                3. Investor must show sources of all funds to the dept of homeland security
                4. Purpose of the business investment is to establish business Here and generate jobs in the US
Copyright 2010. All rights reserved                                                                                               30
IX. Employment based Visa Processing 4 step process
       A. Recruitment as outlined by PERM
       B. If successful in recruitment process & there are not able willing or qualified US workers can move to step 2 file
          ETA9089 If appl cert by Dept of Labor
               1. ETA 9089 contains certifications from the Employer that they must sign that all required steps have been
                   followed
       C. Take everything in Dept of Labor prepare in package for Dept of Homeland Security
               1. For those categories requiring labor certification must have this or they won‟t process the application w/o labor
                   cert
               2. Dept of labor reviews info & may issue approval
               3. Approval of I 140 that allows foreign national to apply for the green card
               4. Application is either through adj of statue is present in the US or by Consulate processing if they are abroad
       D. When approved foreign national applies for adj of status
               1. they must be in status in the US at the time they apply for adj of status
               2. if fallen outs of status can‟t file for tit must go abroad and consulate status
               3. if out of status & present in the US for 6 months or longer they are subject to the 3 & 10 year bar
               4. Certified labor appl doesn‟t overcome the 3 & 10 year bar
               5. Family members and derivative are entitled to file for adj of status if their family member was success in their
                   app for I 140

X. RELIEF FROM PROSECUTION: ASYLUM, WITHHOLDING & CAT
      A. General Built in Mechanisms in Immigration code for individuals who feel they have been persecuted by their home
         country to seek relief in the US
             1. Relief from Persecution covers 3 forms
                       a) Asylum
                       b) Withholding of removal
                       c) Relief under the Convention Against Torture

        B. Difference between Refugee and Asylum
               1. Refugee is person outside of the US who is filing for relief from persecution outside of the US
               2. Asylee someone who is in the US or present at the port of entry who is seeking relief from persecution abroad
                       a) most utilized relief from removal

        C. Difference between Asylum & Withholding of Status & CAT
               1. Asylum burden of Proof
                       a) Burden must be met in order for immigration judge to issue asylum
                       b) Burden of proof is a well founded fear of persecution

                 2.   Withholding of removal burden of Proof
                         a) Burden of proof ( which is a higher standard) but more expansive in the individuals to whom the
                             benefit applies
                                 (1) Persecution must be reasonable possibility not to have occurred for the applicant [
                                      HIGHEST BURDEN]
                         b) Withholding of Removal not subject to ht 1 year bar
                                 (1) It can be asserted at any time in removal proceeding
                                 (2) Asylum is not available to aggravated felons however with or Removal is available to
                                      aggravated felons

                 3.   I -539 Form for asylum must be supplement by: to show well founded fear
                           a) applicants statement or eye witness statement
                           b) corroborating documentation
                                  (1) This is necessary unless imm judge determines that it can‟t be presented because not available

                 4.   I- 539 covers 2 forms of relief from P
                           a) Asylum and
                           b) Withholding of removal
                           c) When appl for asylum is submitted its considered to be app for both Asylum and withholding of
                               removal
                                   (1) on appl of asylum judge will make a ruling on both levels of relief
                                   (2) Withholding of removal also encompasses establishing a well founded fear based on the 5
                                        factors
Copyright 2010. All rights reserved                                                                                              31
XI. ASYLUM
       A. Requirements for Asylee

               1.   5 categories of Asylum - Asylum claimant must show and prove that they have a well founded fear of
                    persecution on account of 5 enumerated factors:
                        a) Race,
                        b) Religion,
                        c) Nationality,
                        d) Political Opinion, or
                                 (1) Is that of the individual as viewed by the state actor or the group the state actor is unwilling or
                                      unable to control
                                 (2) Imputable political opinion is not enough to establish a well founded fear

                        e)   Membership in a particular social group that has immutable qualities one of which is the central reason
                             for persecution of the applicant
                                  (1) Not restricted by one of 5 categories
                                           (a) Applicant can select one or more
                                           (b) Sometimes the factors blend and they can choose the ones that are the most relevant

                                 (2) Not considered Prosecution:
                                         (a) Economic reasons : Many come here b/c of failing economic conditions in their
                                             country , however they must prove they fall into one of the enumerated categories
                                         (b) Military Service unless you are forced to fight against your own people or ideals ie
                                             Serbians against Croatians

                                 (3) Immutable qualities
                                        (a) Those qualities that can‟t be changed – being female
                                                 (i) Genital mutilation ,even is situation where family or small group is
                                                      enforcing such a thing but the govnt isn‟t prohibiting or tacitly promoting it
                                                      by not doing anything about it – this
                                        (b) Country wide practice not enough must show they are subject to the practice ie
                                            female genital mutilation
                                        (c) Court argue govnt is tacitly promoting by not doing anything about it thus fall under
                                            situation where govnt can‟t or won‟t control group

                                 (4) Social group
                                         (a) is one with immutable characteristics
                                         (b) if someone claiming social group there is no schedule C for social group its up to the
                                              attorney to define that social group based on the fact provided

               2.   Prosecution imposed by Govnt/Other group
                        a) To receive relief in form or asylum the applicant must show that the persecution is imposed on them by
                                (1) the government or
                                (2) by a group that the govnt is either unable or unwilling to control

               3.   Well Founded Fear requirement
                       a) When applicant for asylum shows well founded fear based on the grounds, the grounds asserted m/b
                           particularized to the individual , directed toward the individual
                                (1) country wide conditions Can‟t be asserted as sufficient to establish a well founded fear of
                                    persecution
                       b) Note: Applicant is not restricted to choosing just one of the 5 enumerated factors
                                (1) Applicant can select one or more
                                (2) Sometimes the factors blend and they can choose the ones that are the most relevant


       B. 2 Bars for Asylum (only)
              1. any individual who ordered, incited , assisted or otherwise assisted in the persecution of any person based on
                   the 5 grounds themselves are barred from asylum
              2. aggravated felons are barred from making application of asylum



Copyright 2010. All rights reserved                                                                                                  32
       C. Filing Asylum Application
               1. Is subject to the 1 yr rule : in order for application t/b accepted as an affirmative or defensive filing it must be
                  filed w/I one year of the applicants date of entry to the US – before the expiration of one year from entry
                       a) Overcoming 1 year rule in Asylum encompass 2 things
                                 (1) Extraordinary circumstances and
                                           (a) serious illness or physical mental disability
                                           (b) legal disability
                                           (c) ineffective assistance of counsel
                                           (d) temporary protective staus
                                           (e) time spent in immigrant status
                                           (f) non immigrant status or
                                           (g) parole
                                           (h) where appl filed but not properly filed
                                 (2) Changed country conditions overcoming 1 yrs rule is country specific
                                           (a) if conditions in home country have moved dramatically they can overcome the 1 year
                                                filing deadline

       D. The way to approach asylum application
              1. Consider the applicant and their application determine what their claim is & determine if they have more than
                 one form of relief from persecution & so all those should be bundled if they can be supported and also bundle
                 if they are in removal proceedings for other causes
                      a) Hearings are adversarial and tape recorded and court provides translator
                      b) If asylum denied appeal to Board of immigration appeals and then to circuit courts of appeal in the fed
                           courts system

                2.   Most important aspect of asylum is the applicants credibility 2 step process first:
                        a) Finding of credibility
                                 (1) If immigration judge find that applicant is not credible they don‟t need to go any further
                                 (2) the testimony of the applicant alone may be sufficient to carry the burden of proof that‟s why
                                      corroborating evidence is critical

                               (3) Corroborating evidence also poses problems
                                         (a) Because they have by this point given testimony at interview & may have
                                              supplemented testimony to imm judge
                                         (b) Must be sure that there is consistency throughout or else inconsistency will result to
                                              finding of no credibility
                               (4) If client in their individual hearing overcome the hurdle and is found credible then the judge
                                    moves on to finding of facts and application of law
                                         (a) finding of facts & application of law determines whether the app ahs met the burden
                                              of proof of a well founded Fear from P based on the 5
                         b) Whether the burden of proof for asylum or withholding has been met
                         c) Two step process
                               (1) finding of credibility
                               (2) whether burden of proof for asylum or withhold has been met


       E. 2 ways types of Asylum Application
              1. Affirmative application for asylum – filing of I- 535 application of asylum & withholding of removal
                      a) Application is filed w/ DHS at Nebraska svc center & they send the app to different asylum offices
                          located throughout the US to offices w/ jurisdiction over the individual
                      b) Once processed by Dept of homeland security service center person will be scheduled for interview at
                          asylum office
                      c) at interview 3 things can happen
                              (1) Application granted & thus can file for adj of status or
                                       (a) Favorable grant of asylum means individual can apply for adj of status to get Green
                                            Card , however there is a 7 year wait
                                       (b) During wait they get employment authorization & have travel doc‟s




Copyright 2010. All rights reserved                                                                                                33
                                   (2) If they are in some other status ie student… application can be denied , or
                                   (3) If applicant is not presently in status in the US the application if not granted will be referred to
                                       the immigration crt to appear in-front of the Imm judge where the foreign national will get a
                                       second chance to plead his case a second time
                                            (a) Here they can present evidence, provide testimony provide witnesses & be subject to
                                                 cross examination by DHS attorneys

                2.   Defensive Filing in Immigration court
                         a) Notice to appear is issued based on violation of the Imm & Nat act
                         b) as long as they file their appl w/i 1 year but must be brought into court before expiration of 1 year –
                             asylum is valid way to apply


        F. Is asylum a permanent state?
                1. No, if there is a change in country conditions the govt can rescind the grant of asylum
                2. They can deny application if individual can go to a safe part of the county121 or they can go to a third country
                   that is safe
                3. There are not economic benefits for asylum until they retain Permanent Lawful residence for 5 years




XII. CONVENTION AGAINST TORTURE: 3RD FORM OF RELIEF
       A. General
             1. Asylum & withholding claims are considered tighter
                    a) CAT is a separate form of application same I-589 form is used

        B. Filing Claims
                1. Asserting claim under CAT in addition to filing I-589 must file a second claim
                       a) A claim under this must be separately requested from the Immigration judge where as relief for
                            asylum is automatically considered with withholding from removal

        C. Relief Provided under CAT
               1. Relief provides that no state party shall remove or extradite a person to another state where there are substantial
                    grounds for believing that he will be in danger of torture
               2. CAT doesn‟t need to be based on the 5 enumerated grounds for asylum and withholding
                        a) It can be a straight application for relief based on torture

        D. Standard of Proof
               1. The standard of proof to be met is that – its more likely than not that the individual will be tortured upon return
        E. Hearing
               1. In hearing for relief from persecution Immigration judge has discretion as to whether a final grant of one of
                   three relief‟s will/b granted
               2. They weight the positive factors with the negative factors in determining whether a favorable outcome is
                   warranted
                        a) Exercise of discretion follows a credibility finding because if not found credible not further analysis is
                             needed, but once overcome they can then exercise discretion

                3.   Factors that can be used in exercise of discretion
                         a) Applicants age and health
                         b) Whether they traveled through a third country before reaching the US and lodging a complain for
                             asylum or got here directly
                                  (1) if they spent any considerable time in a third country they could have sought relief there and
                                       now they are using Asylum as pretext to stay here
                         c) Whether they have visa in any third country
                         d) Whether there are relative or family ties in the US or ties to relatives /family in any third country
                                  (1) if have ties to third counties where there is no fear of persecution
                         e) If they spent time in 3rd country before coming here , the period of time , living conditions and the
                             possibility of long term residency in that third country is considered
                         f) Whether fraud was used to enter the US
                                  (1) nature & extent of fraud considered- but fraud alone not conclusive
Copyright 2010. All rights reserved                                                                                                    34
XIII.   CITIZENSHIP
        A. 3 ways to obtain US Citizenship
               1. Citizenship can be acquired by Birth in the US or Territory
                       a) Governed by concept of Jus Soli

                2.   BY transmission of citizenship from parent to child And
                        a) Jus Soli – this concept cover citizenship by transmission
                                (1) When child is born outside of the US and where one or both of the parents are US citizens
                        b) Transmission is guided by transmission charts
                                (1) Diff transmission requirements based on the age of the child
                                (2) Transmission requires one or more parents to have lived in the US
                        c) Form N 600 filed for by transmission

                3.   By naturalization
                         a) Has been created by Constitutional duty to create uses concept of jus soli

                         b) Elements to be met to be naturalized
                                (1) Individual must be a lawful permanent resident for 5 years Or if lawful perm residency was
                                    obtained by marriage to US citizen the waiting period is 3 years so long as the marriage is still
                                    in tact at the time of the application , if not in tact they must wait for 5 years even if they have
                                    a green card
                                         (a) Exception to waiting period
                                                    (i) Applicant who has served honorably in a time of war or declared hostility is
                                                        not required to first hold LPR status
                                (2) Individual must have been a resident of the US that has resided in the US continuously for 3
                                    or 5 years after acquisition of LPR status
                                         (a) If got green card thru marriage must be resident for 3 years

                                  (3) Individual must have resided at least 3 months w/I the state from which they are filing

                                  (4) Individual must have been physically present in the US for at least one half of the time period
                                      required for them to make application

                                  (5) Individual must not have been absent from the US for a continuous period of one year during
                                      the time period for which continuous residence is required

                                  (6) Must demonstrate that they are a person of good moral character for either 5 years preceding
                                      the application or 3 years depending on the basis of their application
                                           (a) Standard for judging good moral character – is that of an average US citizen
                                           (b) Person who is convicted of murder or aggravated felon is not
                                           (c) Adultery, Failure to file w/I the selective service if that was willful & refusal to bear
                                               arms on behalf of the US, failure to provide child care

                                  (7) They must be attached to the principals of the Constitution
                                         (a) Before becoming a Citizen must take an oath of allegiance to the US or a modified
                                             oath based on deeply held religious or moral beliefs
                                         (b) They must be willing to bear arms on behalf of the US or in lieu of that perform non
                                             combatant service when required to do so by law , or work of national importance
                                             under civilian direction

                                  (8) Must not be otherwise as a subversive or communist where membership in the communists
                                      party was meaningful & voluntary, it can‟t be a deserter during war time who has been
                                      convicted by a court martial

                                  (9) AN alien who is in removal proceedings or has outstanding order of removal is not eligible
                                      for naturalization


                                  (10) Individual who has applied for & received relief from Selective service program is not
                                       entitled to apply for naturalization

Copyright 2010. All rights reserved                                                                                                   35
                                 (11) Individual must be 18 years of age & must demonstrate an elementary level of reading,
                                      writing & speaking of the English language
                                           (a) If under 18 they can apply for citizenship through a parent
                                           (b) English language requirement will be waived only in 2 circumstances
                                                    (i) For persons who are over the age of 50 & have been present in the US for
                                                          20 year or longer OR
                                                    (ii) Persons over the age of 55 & have been here for 15 years or longer
                                                    (iii) Doesn‟t apply to individuals who are physically or developmentally able
                                                              (a) They still must meet the other requirements such as govnt history
                                                                  in their native tongue

                                 (12) Procedure for applying for Naturalization is by filing N400 filed w/ service center
                                          (a) Then finger printed
                                          (b) Then called into DC office & interviewed by immigration officer & show their
                                              ability to speak, write, English Language & demonstrate knowledge of US History
                                          (c) If pass then have oath ceremony which is presided over by federal court judge
                                                   (i) Only after this is when they actually become a US citizen & receive cert of
                                                        naturalization
                                                   (ii) This cert then allows them to apply for US passport

       B. Basis for Granting citizenship
              1. Constitution or
                      a) Birth & naturalization is provided for by the Constitution
                      b) 14the amendment provides all persons born or naturalized in the US are citizens of the Us
                      c) this includes individuals who are in territories under the control of the US
                               (1) Porto Rico
                               (2) Guam
                      d) Exception to this is:
                               (1) Sons & daughters of foreign diplomats
                                        (a) Note: anyone born in the US becomes a US citizen except for children of Diplomats,
                                            but does include children of illegal people
              2. Statutory - Citizenship by transmission is statutory



       C. Citizenship can be lost or forfeited
              1. The lost of citizenship that has been given by Constitutional grant can only be forfeited by extreme
                  circumstances
                       a) However forfeiture of statutory transmission is more easily forfeited

               2.   Citizen can lose citizenship in 2 ways
                         a) BY expatriation
                                  (1) Section 349 Of act: natural born or naturalized citizen fo the US can lose citizenship in any of
                                       the following ways
                                            (a) Obtaining naturalization or taking oath to allegiance in foreign state after attaining
                                                age of 18
                                            (b) Entering in/ serving in the armed forces of county engaged in hostilities w/ the US
                                            (c) Foreign army as commissioned officer / non commissioned officer
                                            (d) Making formal renunciation of citizenship before diplomatic or counsel officer on
                                                specified form or
                                            (e) Making a formal written renunciation whenever the US is in a state of war
                                            (f) Act of treason or by force to overthrown the uS or bear arms against the us
                                  (2) Renunciation must be voluntary and must prove intent of voluntariness by preponderance of
                                       the evidence
                                  (3) Presumption against expatriation even with 349 where person takes routine of oath or office
                                       or accepts a non-policy position in govnt




Copyright 2010. All rights reserved                                                                                                36
                        b) De -Naturalization
                               (1) Naturalized US citizens lose their citizenship thru this method which puts you in removal
                                   proceedings
                               (2) This must be done by clear & conviction evidence
                               (3) Actions that create presumption in favor of de-naturalization
                                        (a) Refusal to testify in front of congressional committee for subversive activities
                                            where person has been convicted for contempt & this act occurs in 10 years of
                                            naturalization
                               (4) De Nat can occur where they have conviction for knowingly procuring naturalization in
                                   violation of law
                               (5) Can occur through membership or affiliation with subversive, communist orgs w/I 5 years of
                                   naturalization
                                        (a) Currently Nazis who participated in holocaust



       D. Dual Citizenship
             1. Individual maintaining citizenship in 2 or more countries
                      a) US looks with disfavor to any US citizen holding dual citizenship b/c of dual loyalty
                      b) This would subject them to claims of both countries
                      c) However fed court have recognized that it‟s a status that has been long recognized by law and by
                           asserting rights to citizenship is not w/o more that they are renouncing that of the other

               2.   Not preclude from dual nationality in following situations
                        a) Through naturalization in the US where the other country does not divest its citizens of citizenship
                            upon naturalization in a foreign country
                        b) Also where there is birth in the US to nationals of a country who follow the principles of jus soli or
                            naturalization of US citizen in a foreign country that doesn‟t require the US citizen to renounce their
                            US citizenship
                                 (1) So its up to the foreign country to determine whether dual citizenship can be held
                                          (a) Germany, Canada

       E. Benefits from obtaining US Citizenship
             1. Voting rights & being no longer under the Constraints of the Immigration & Nationality Act




Copyright 2010. All rights reserved                                                                                                   37

				
DOCUMENT INFO