Immigration Law-Outline Spring 2003 Professor Ferguson
This outline is based on notes from the text book, class notes, lecture notes, and other commercial & noncommercial outlines. No credit is taken or intended to be taken by the author of this outline.
CONTENTS PAGE NO.
CHAPTER 29: Asylum, Withholding of Removal, Refugee Status and TPS § 29.01: Introduction…………………………………………………………………………………………………………………...……………………...3 § 29.02: Establishing Eligibility for Political Asylum…………………………………………………………………………………………..…………….3 §29.03: Mandatory Denials of Asylum……………………………………………………………………………………………………………….……….5 § 29.04: Discretion…………………………………………………………………………………………………………………………………….……….5 §29.05: Consequences of Receiving Asylum………………………………………………………………………………………………………...………..5 § 29.06: Withholding of Removal…………………………………………………………………………………………………………………..…………6 § 29.07: Application Procedure………………………………………………………………………………………………………………….……………6 § 9.08: Admission as Refugee……………………………………………………………………………………………………………………..…………..7 § 29.09: Temporary Protected Status………………………………………………………………………………………………………………...………..7 CHAPTER 11: Relatives § 11.01: In General…………………………………………………………………………………………………………………………………….………7 § 11.02: Spouse of U.S. Citizen………………………………………………………………………………………………………………………………..8 § 11.03: Child of U.S. Citizen………………………………………………………………………………………………………………………………….8 § 11.04: Parent of U.S. Citizen……………………………………………………………………………………………………………………….………..9 § 11.05: First Family-Sponsored Preference: Unmarried Sons and Daughters of U.S. Citizens……………………………………………….…………10 § 11.06: Second Family-Sponsored Preference: Spouses and Unmarried Sons and Daughters of LPR……………………………………….…………10 § 11.07: Third Family-Sponsored Preference: Married Sons and Daughters of U.S. Citizens……………………………………………………..……..10 § 11.08: Fourth Family-Sponsored Preference: Brothers and Sisters of U.S. Adult Citizens…………………………………………………..…………10 § 11.09: Preliminary Visa Petition Requirements for Immediate Relatives and Family Sponsored Preferences…………………………………………10 § 11.10: Conditional Permanent Resident Status………………………………………………………………………………………………...…………11 § 11.11: K Nonimmigrant Status Under the LIFE Act…………………………………………………………………………………………….………..12 CHAPTER 2: Nonimmigrant Classification, Terms of Admission and Procedures § 2.05: Admission; Procedure; The I-94; Conditions and Incidents of Stay; Maintaining Status………………………………………………..……….12 CHAPTER 16: Grounds of Exclusion/Inadmissibility; Waivers § 16.01: In General………………………………………………………………………………………………………………………………….………..13 § 16.02: Health-Related Grounds of Inadmissibility…………………………………………………………………………………………….………….14 § 16.03: Criminal and Related Grounds of Inadmissibility……………………………………………………………………………………...………….15 § 16.04: Security and Related Grounds of Inadmissibility………………………………………………………………………………………...………..17 § 16.05: Aliens Likely to Become Public Charge…………………………………………………………………………………………………..………..18 § 16.06: Labor Certification and Other Employment Related Requirements……………………………………………………………………...……….19 § 16.07: Illegal Entrants; Immigration Violators…………………………………………………………………………………………………...………20 § 16.08: Aliens Seeking Admission Without Proper Documentation……………………………………………………………………………………….21 § 16.09: Persons Who are Ineligible for Citizenship………………………………………………………………………………………………………..22 § 16.10: Aliens Previously Removed or Unlawfully Present………………………………………………………………………………………………..22 § 16.11: Miscellaneous Grounds of Inadmissibility……………………………………………………………………………………………………..…..23 § 16.12: Waivers of Inadmissibility………………………………………………………………………………………………………………..…………24 CHAPTER 5: Foreign Students § 5.01: Introduction…………………………………………………………………………………………………………………………………..………24 § 5.02: Obtaining a Student Visa Abroad….......................................................................................................................................................................….25 § 5.03: Maintaining Student Status………………………………………………………………………………………………………………………….25 § 5.04: Admission Procedure……………………………………………………………………………………………………………………….………..25 § 5.05: Reinstatement to Student Status…………………………………………………………………………………………………………….……….26 § 5.06: Post-Study Options………………………………………………………………………………………………………………………….………..27 CHAPTER 18: Employment-Based Immigrants § 18.01: In General: New System; Priority Dates……………………………………………………………………………………………..…………….27 § 18.02: Requirements in Common Relating to Employment and Labor Certification…………………………………………………………...……….27 § 18.03: 1st EB Preference: Priority Workers……………………………………………………………………………………………………..…………29 § 18.04: 2nd EB Preference: Advanced-Degree Professionals; Aliens of Exceptional Ability…………………………………………………..…………30 § 18.05: 3rd EB Preference: Skilled Workers, Professionals, and other Workers…………………………………………………………………...……..31 § 18.06: 4th EB Preference: Special Immigrants; Religious Workers………………………………………………………………………………………31 § 18.07: 5th EB Preference: Immigrant Investor; Pilot Program ……………………………………………………………………………..……………32 § 18.08: Petition Procedure: Petition and Filing: Petitioner and Changes in Ownership……………………………………………………..………….32 CHAPTER 25: Consular Processing of Immigrant Visas § 25.01: In General: Compared With Adjustment of Status…………………………………………………………………………………………..…….33 § 25.02: Immigrant Visa Number Eligibility………………………………………………………………………………………………………..……….33 § 25.03: Timing of Visas, Priority Dates, Order of Processing……………………………………………………………………………………………..33 § 25.04: Consular Jurisdiction; Homeless Cases……………………………………………………………………………………………………………33 § 25.05: Processing the Application………………………………………………………………………………………………………………..………..33 § 25.06: Interview and Formal Visa Application………………………………………………………………………………………………..…………..34 § 25.07: Issuance of the Visa and its Effect…………………………………………………………………………………………………………………34 § 25.08: Refusal to Issue the Visa……………………………………………………………………………………………………………………..……..34
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§ 25.09: Revocation of the Visa…………………………………………………………………………………………………………………….………..34 CHAPTER 26: Adjustment of Status to Permanent Residence § 26.01: Adjustment of Status Defined; INA 245……………………………………………………………………………………………………………34 § 26.02: Eligibility Summarized……………………………………………………………………………………………………………………….……..35 § 26.03: Basic Eligibility…………………………………………………………………………………………………………………………..…………35 § 26.04: Classes Specifically Barred From § 245 Adjustment; Temporary Relief……………………………………………………………...………….35 § 26.05: Adjustment is Discretionary ……………………………………………………………………………………………………………..…………35 § 26.06: Application and other Procedures …………………………………………………………………………………………………………………35 § 26.07: Employment Authorization; Advance Parole ………………………………………………………………………………………….………….35 § 26.08: Adjustment of Status Versus Consular Processing; Advantages………………………………………………………………………………….36 § 26.09: Adjustment of Status NACARA………………………………………………………………………………………………………….…………36 § 26.10: Haitian Refugee………………………………………………………………………………………………………………………….…………36 § 26.11: Adjustment of Status under LIFE……………………………………………………………………………………………...…………………..36 § 26.12: Adjustment of Status under LIFE; Family Unity………………………………………………………………………………………...………..36 § 26.13: Adjustment of Certain Syrian Nationals………………………………………………………………………………………….………………..36 § 26.14: Adjustment of Status of Approved VAWA Self-Petitioners……………………………………………………………………………..…………36 CHAPTER 15: Labor Certification § 15.01: Introduction…………………………………………………………………………………………………………………..……………………..37 § 15.02: Individual Certifications: Basic Processing…………………………………………………………………………………………….………….37 § 15.03: Reduction in Recruitment ……………………………………………………………………………………………………………...…………..40 § 15.04: Special Handling of Certain Occupations……………………………………………………………………………………………..…………..40 § 15.05: Schedule A Certifications…………………………………………………………………………………………………………………..………41 § 15.06: Schedule B Non-certifications……………………………………………………………………………………………………………..……….41 CHAPTER 16A: Removal of Aliens § 16A.01: In General………………………………………………………………………………………………………………………...……………….42 § 16A.02: Initiation of Removal Proceedings…………………………………………………………………………………………………….…………42 § 16A.03: Removal Proceedings………………………………………………………………………………………………………………….………….42 § 16A.04: Expedited Removal………………………………………………………………………………………………………………………………..45 § 16A.05: Expedited Removal of Aliens Convicted of Crimes…………………………………………………………………………………..…………..45 § 16A.06: Administrative Removal of Certain Aliens……………………………………………………………………………………………………….45 § 16A.07: Effective Dates…………………………………………………………………………………………………………………………………….45 CHAPTER 17: Deportation § 17.01: Introduction…………………………………………………………………………………………………………………………………………45 § 17.02: Governing Principles………………………………………………………………………………………………………………….……………46 § 17.03: Challenges to Deportation Power…………………………………………………………………………………………………………..………46 § 17.04: Classes Included…………………………………………………………………………………………………………………………………….47 § 17.05: Grounds of Deportation………………………………………………………………………………………………………………….…………47 § 17.06: Specific Procedures…………………………………………………………………………………………………………………………………49 § 17.07: Determination of Case………………………………………………………………………………………………………………..…………….49 § 17.08: judgment; Post-Judgment Tactics …………………………………………………………………………………………………………………49 CHAPTER 20: Other Discretionary Remedies § 20.01: Generally…………………………………………………………………………………………………………………………………..………..50 § 20.02: Voluntary Departure………………………………………………………………………………………………………………………………..50 § 20.03: Cancellation of Removal; NACARA……………………………………………………………………………………………………………….51 § 20.04: Withdrawal of Application for Admission…………………………………………………………………………………………….……………52 § 20.05: Deferred Action Cases………………………………………………………………………………………………………………………………52 § 20.06: Private Relief Bills……………………………………………………………………………………………………………………………..……52 CHAPTER 23 : Employment § 23.01: Introduction……………………………………………………………...………………………………………………………………………….52 § 23.02: The Prohibition Against Knowingly Hiring, Referring, or Recruiting Unauthorized Aliens…………………………………………………….53 § 23.03: Verification Requirements………………………………………………………………………………………………………………...………..53 § 23.04: Unfair Immigration-Related Employment Practices………………………………………………………………………………………………55 CHAPTER 34: Citizenship and Nationality § 34.01: Introduction…………………………………………………………………………………………………………………………………………57 § 34.02: Governing Principles………………………………………………………………………………………...……………………………………..57 § 34.03: Acquisition of United States Nationality at Birth………………………………………………………………………………………...……….57. § 34.04: Specific Procedures to Document Citizenship Claim…………………………………………………………………………………….………..58 § 34.05: Acquisition of United States Citizenship by Marriage……………………………………………………………………………………..………60 § 34.06: Acquisition of Citizenship by Naturalization of Parents……………………………………………………………………………….………….60 § 34.07: Acquisition of Citizenship by Administrative or Judicial Naturalization………………………………………………………………..………..60 § 34.08: Specific Procedures for Naturalization…………………………………………………………………………………………………………….61 § 34.09: Determination of Case……………………………………………………………………………………………………………………..……….62 § 34.10: Post-Judgment Tactics……………………………………………………………………………………………………………………..……….62 § 34.11: Special Classes…………………………………………………………………………………………………………………………………..….62 § 34.12: Loss of Nationality……………………………………………………………………………………………………………………….…………63
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ASYLUM, WITHHOLDING OR REMOVAL, REFUGEE STATUS AND TPS A. § 29.01: Introduction 1. The Immigration and Nationality Act (INA) provides two forms of protection for aliens who come to the United States fleeing persecution in their home countries a. Asylum; and b. Withholding of removal 2. Aliens who come from certain countries designated by the Attorney General may be eligible for another status, called temporary protected status 3. In addition, aliens outside of the United States may apply for refugee status if they meet the statutory and regulatory requirements B. § 29.02: Establishing eligibility for political asylum 1. Eligibility and definition of “refugee” a. Definition of refugee i. An alien is eligible for a grant of asylum if he or she qualifies as a refugee as defined in the Act: ii. Any person who is outside any country of such person’s nationality or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion iii. The application for asylum involves two steps: First, a showing that a person has a well-founded fear of persecution Second, an exercise of discretion by the Attorney General in favor of granting asylum iv. In withholding of removal, the Attorney General has no v. The withholding or removal requires a higher burden of proof b. Well-founded fear i. The element of “well-founded fear” involves both subjective and objective aspects The subjective element means that the applicant’s fear must be genuine The objective element has been interpreted to mean that a reasonable person would fear persecution ii. The requirements necessary to satisfy the objective standard is as follows: The applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; The persecutor is already aware, or could be aware, that the applicant possesses this belief or characteristic; The persecutor has the capability of punishing the applicant; The persecutor has the inclination to punish the applicant c. Persecution i. Defining persecution Neither the INA nor the implementing regulations define “persecution” The UNHCR handbook states that persecution would always include “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group, as well as serious violations of human rights” The INS recognizes that the following types of treatment meet that test: killing other than as lawful punishment upon conviction in accordance with due process; genocide; slavery; torture and other, cruel, inhuman or degrading treatment; and prolonged detention without due process ii. Discrimination as distinguished from persecution Discrimination or merely unfair treatment is not normally persecution, unless it can be shown that it results in extremely serious restrictions on important rights, or that a number of discriminatory measures cumulatively amount to persecution iii. Economic hardship Similarly, a flight from economic hardship or disadvantage alone does not qualify one as a refugee
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iv. Relationship of prosecution and persecution Prosecution is not the same as persecution Prosecution for a crime is not persecution However, if the prosecution arises out of government security concerns in a country where there is no opportunity to implement change in the government through peaceful processes, then such prosecution may amount to persecution v. Role of intent of persecutors Even though the persecutor’s act lacked punitive or malevolent intent, the treatment may nevertheless amount to persecution vi. Identity of persecutors In most situations, the government or government agents or officials in the home country are the persecutors In many cases, however, the persecutor is a non-government group that the government is unwilling or unable to control It may be possible to qualify for asylum even if the non-governmental persecutor is a single individual, if the government is unwilling or unable to control that person’s conduct d. Pattern or practice of persecution against group i. Membership alone in a persecuted group may be enough to establish eligibility for asylum ii. Applicants need not show that they would be singled out individually for persecution if they can establish that there is a patter or practice of persecution against that group Grounds for persecution a. Race i. The category of race includes all ethnic groups commonly referred to as races ii. Being a member of a particular race that suffers from discrimination or persecution will not, by itself, usually suffice to establish eligibility for asylum b. Religion i. Persecution on account of religion may be on the basis of observance of religious practices, or on the basis of religious heritage, in which case it may overlap with social group persecution ii. Mere membership in a religious group is not usually enough to form the basis of an asylum claim, although there may be special circumstances where it suffices c. Nationality i. Nationality may include both citizenship and common ethnic and linguistic characteristics d. Membership in a particular social group i. A particular social group is made up of people of similar background, habits or social status ii. Whatever the common characteristic that defines the group, it must e one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences iii. The Ninth Circuit has considered the issue of eligibility for asylum on the basis of membership in a particular social group as a four-part analysis; Whether the class of people identified is cognizable as a particular social group Whether the applicant has established that he or she is a member of the group Whether the social group has in fact been targeted for persecution on account of the characteristics of the group members Whether such special circumstances are present to warrant regarding mere membership in that social group as constituting per se eligibility for asylum iv. A pattern or practice of persecution against a group can satisfy the special circumstances element of the Sanchez-Trujillo test v. The definition of a social group may include associations that are immutable as well as those that are voluntary vi. Groups that have been recognized as particular social groups subject to persecution include: families; tribes; government employees and former government employees;
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professionals, business people and intellectuals; students; union members; landowners; and homosexuals vii. Groups that have not been found to meet the necessary definition include young working class males who have not served in the military; family members of military deserters; cheese-makers who supplied guerrillas with food; and drug dealers e. Political opinion i. Political opinion as the basis for eligibility for asylum should be interpreted broadly, to include opinions about a government, its officials, or its policies ii. An applicant may also be eligible for asylum if he or she fears persecution based on a political opinion imputed to him or her as distinguished from an opinion that he or she actually holds 3. Past persecution a. An applicant is a refugee pursuant to the statutory definition and therefore eligible for asylum if he has already suffered persecution on account of one of the enumerated grounds, without having to show that there is a well-founded fear of persecution in the future b. Even if it has been established that there is not a well-founded fear of persecution, an applicant can still be granted asylum if he demonstrates compelling reasons for being unwilling to return arising out of the severity of the past persecution § 29.03: Mandatory denials of asylum 1. For asylum applications filed after April 1, 1997, the procedural bars to applications are as follows; a. The applicant must demonstrate, by clear and convincing evidence, that the application for asylum has been filed within one year after the date of his arrival in the U.S. b. An application will be rejected if the application has had a previous application for asylum denied by an immigration judge or the Board of Immigration Appeals c. If the Attorney General determines that pursuant to a bilateral or multilateral agreement, there is a country to which the applicant could be sent 2. For asylum applications filed on or after April 1. 1997, an applicant will not be granted asylum if the following conditions apply; a. If he ordered, incited, assisted, or otherwise participated in the persecution of any person based on the enumerated categories b. If he, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States c. If there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States before arriving in the U.S. d. If there are reasonable grounds for regarding the alien as a danger to the security of the United States e. If the applicant is inadmissible or removable on certain grounds relating to terrorist activity, or f. If the applicant was firmly resettled in another country before coming to the U.S. 3. The Attorney General has the discretion to establish other limitations and conditions on eligibility § 29.04: Discretion 1. If an applicant establishes that he is a refugee, and that none of the mandatory bars to asylum apply, then he is eligible for asylum 2. Once the applicant has made that demonstration of eligibility, however, and is not subject to any mandatory bars, the officer may not ordinarily deny asylum as a matter of discretion 3. The most important factor in favor of granting asylum is severe past persecution, and an applicant’s belief that returning to the place of persecution would be unduly frightening and painful 4. Adverse factors include circumvention of orderly refugee procedures, use of fraudulent documents, and criminal conduct § 29.05: Consequences of receiving asylum 1. Benefits a. An asylee is eligible to have his or her spouse and children follow to join the asylee in the United States, and be granted asylum in their own right b. Asylees are also immediately eligible to apply for employment authorization c. After one year in asylee status, asylees may also apply for adjustment to permanent resident status 2. Termination a. Asylum is an indefinite status, but it may be terminated under certain circumstances b. An asylum may be terminated if one of the following conditions exists: i. if the asylee used fraud or misrepresentation in the application ii. the asylee no longer has a well-founded fear of persecution iii. the asylee falls into one of the automatic bar categories of ineligibility
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iv. the asylee has voluntarily availed himself of the protection of his home country; or v. the asylee has acquired a new nationality and enjoys the protection of the country of new nationality § 29.06: Withholding of removal 1. In general a. The attorney general may not remove an alien to a country if the attorney general decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion…. b. Withholding or removal is similar to asylum, but distinct in several important ways 2. Comparison to asylum: Standards for decision a. First, in order to be eligible for withholding of removal, an applicant has the burden of establishing that it is more likely than not that he would be persecuted b. This requires a showing of a clear probability of persecution, which is a heavier burden than establishing a well-founded fear of persecution for eligibility for asylum 3. Comparison to asylum: Consequences of grant a. In many respects, withholding of removal is a less desirable status for an alien than asylum b. Like asylum, withholding of removal does entitle a person to employment authorization c. Family reunification, however, is not available to someone granted withholding of removal d. The remedy of withholding, unlike asylum, does not include eventual adjustment to permanent resident status e. An alien granted withholding of removal could be removed to a country that is willing to accept him 4. Mandatory denial of withholding of removal a. The following categories of aliens are not eligible for withholding of removal: i. Aliens who ordered, incited, assisted, or otherwise participated in the persecution of individuals based on race, religion… ii. Aliens who having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States iii. Aliens for whom there are serious reasons to believe that committed a serious nonpolitical crime outside the United States before the alien arrived in the United States iv. Aliens for whom there are reasonable grounds to believe that he is a danger to the security of the United States 5. Convention against torture a. No state party shall expel, return, or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture b. Torture is defined as; any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third party information or confession c. Torture does not include pain or suffering relating to lawful sanctions, including the death penalty § 29.07: Application procedure 1. Affirmative applications a. Application materials i. Aliens who are not in removal proceedings file an application for asylum on form I589, together with supporting evidence, with the appropriate INS ii. Be sure to review the provisions requiring filing of applications within one year of arrival in the United States b. Employment authorization i. An asylum applicant whose application has been pending at least 150 days may apply for employment authorization ii. An application for employment authorization may also be filed immediately upon receiving notice that the application for asylum has been recommended for approval c. Advance parole i. The asylum applicant can receive permission to travel outside the United States by requesting advance parole d. Interview and decision i. The INS should schedule an interview with an asylum officer within 45 days after the asylum application is filed ii. Failure to appear for a scheduled interview without prior authorization may result in dismissal of the application or waiver of the right to an interview iii. The interview should be conducted in a non- adversarial manner
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iv. An applicant is entitled to have an attorney or representative present, who may make a statement or comment on the evidence 2. Applications in deportation, exclusion or removal proceedings a. If exclusion, deportation or removal proceedings have been commenced, the application for asylum must be filed with the immigration judge b. An asylum application is deemed to constitute an application both for asylum and withholding of removal c. An immigration judge may grant or deny asylum or withholding of removal; a negative decision must state the basis for the denial 3. Expedited removal proceedings a. Those who seek admission to the United States without valid documents or with fraudulent documents are subject to expedited removal proceedings b. On finding that the alien has a credible fear of persecution or torture, the asylum officer refers the alien to an immigration judge for a full consideration of the asylum claim in removal proceedings c. Meanwhile, the alien is detained unless paroled d. The district director may parole persons in the following categories; i. Aliens who have serious medical conditions in which continued detention would not be appropriate ii. Pregnant women iii. Juveniles who may be released to a relative iv. Aliens who will be witnesses in judicial proceedings v. Aliens whose continued detention is not in the public interest H. § 29.08: Admission as refugee 1. Aliens who are outside the United States may be admitted as refugee within numerical limitations set for each year by the president a. An applicant who seeks admission as a refugee must submit an application to an INS office with jurisdiction over the area where the applicant is located b. The applicant must submit to a medical examination and be sponsored by a responsible person or organization c. There is no appeal of a denial of refugee status d. Refugee status may be terminated if the alien was not a refugee within the meaning of the statute at the time of admission I. § 29.09: Temporary protected status 1. Temporary refuge in the United States, called temporary protected status may be granted to nationals of countries that are experiencing ongoing armed conflict, severe natural disaster or other extraordinary temporary circumstances making it unsafe for them to return safely 2. The attorney general may designate a foreign state for purposes of temporary protected status only if he finds that; a. There is an ongoing armed conflict within the aliens country b. There has been an earthquake, flood, drought, epidemic, or other disaster c. There are extraordinary and temporary conditions in the state that prevent aliens from retuning in safety 3. The attorney general must specify a period for an initial designation of a country of no less than six months and no longer than eighteen months 4. To be eligible for a grant of TPS, an alien from a designated country must establish continuously physically presence in the United States 5. Aliens who are ineligible for asylum or have been convicted of a felony on two or more misdemeanors are ineligible for TPS 6. The application for TPS must be filed with the INS district director during the registration period on form I-821, together with the proper fee II. RELATIVES A. § 11.01: In general 1. The Immigration and Nationality Act (INA) excludes from numerical restrictions the immediate relatives of U.S. citizens 2. The purpose of this exclusion is to promote the unification of U.S. families 3. Under the INA, immediate relatives consist of the spouses and the unmarried minor children of U.S. citizens, and the parents of U.S. citizens who are at least 21 years old a. However, some family members of an immediate relatives may themselves be entitled to independent immediate relative status, like stepchildren 4. Family-sponsored preference immigrants consist of: a. Unmarried sons and daughters of U.S. citizens (FS-1)
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b. Spouses and unmarried children of permanent resident aliens (FS-2) c. Married sons and daughters of U.S. citizens (FS-3) d. Brothers and sisters of U.S. adult citizens (FS-4) 5. The family-sponsored first-preference category is backlogged a year or so, the second and third preferences are years behind, and the fourth is hopelessly backlogged 6. The petitioning relative is called the petitioner; the alien for whom immigration status is sought is called the beneficiary § 11.02: Spouse of U.S. citizen 1. In general a. The statute grants immediate relative status to both alien husband and wives of U.S. citizens b. Immediate relative status can survive the death of the U.S. citizen petitioner for the benefit of certain widows and widowers of U.S. citizens c. The statue also provides a nonimmigrant category of alien fiancé who can come to the U.S. to marry a U.S. citizen and then adjust to permanent resident 2. Prerequisite of valid and subsisting marriage a. Validity of marriage i. To qualify for immigration benefits as the spouse of a U.S. citizen or lawful permanent resident, the parties must have a valid and subsisting marriage, not a sham marriage arranged solely for an immigration advantage ii. The validity of the marriage is ordinarily judged by the law of the place where it is entered into iii. Petitioners have the burden of establishing any foreign law on which they rely iv. For a marriage to be valid, any prior divorce must be valid and final v. The distinction between a void and voidable marriages is that a void marriage is invalid from its inception, while a voidable marriage is treated as valid until annulled or otherwise terminated vi. Where permanent residence is granted on the basis of a marriage that is less than two years old, the termination of the marriage within two years of the grant gives rise to a presumption that the marriage was a sham b. Continuing marriage i. Not only must the marriage be valid, it must be subsisting; a terminated marriage confers no immigration benefits ii. However, under a humanitarian exception, the citizen’s death does not terminate immediate relative status if at the time of death the parties had been married for at least two years and were not legally separated 3. Legal impediments a. Eligibility for marriage is subject to legal impediments b. For example, someone already married is not free to marry while his or her existing marriage continues c. Even if a divorce decree has been obtained, a remarriage before the divorce decree becomes final would be void 4. Exceptional situations where marriage fails to support immediate relative a. Polygamous, incestuous or miscegenous marriages i. Polygamous or incestuous marriages are void for public health or moral reasons ii. Marriages between persons of different races are recognized for immigration purposes despite that they may be barred in the state where they were entered into iii. For immigration purposes the rule is that immigrant status will be granted if the marriage was valid at the place of origin and the cohabitation of the parties at their place of destination in the United States will not incur criminal punishment b. Proxy marriages i. Where the parties are not physically present at the marriage ceremony, a proxy, picture, telephone, radio, television or similar absentee marriage does not confer immigration benefits c. Sham marriages i. Finally, a marriage that on its face seems valid may be disregarded if it is found to be a sham, entered into by the parties only to obtain immigration benefits and without any intention to live together as husband and wife § 11.03: Child of U.S. citizen 1. Age and marital status a. The Act exempts the alien child of a U.S. citizen from numerical restrictions as an immediate relative b. By definition, a child includes only an unmarried person under the age of 21
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Stepchild a. A stepchild is included in the definition of child, if the child was under 18 at the time the marriage occurred creating the status of stepchild b. A stepchild is not precluded from seeking benefits for his natural parents c. A stepchild relationship will not be recognized for immigration purposes when it depends on a sham marriage, even if the child is innocent and the marriage has not been legally terminated 3. Legitimated child a. Definition i. The definition of child also embraces a child born out of wedlock who (1) is legitimated under the law of the child’s or the father’s residence or domicile, whether in or outside the United States, providing (2) such legitimation occurs while the child is under 18 and in the legal custody of the legitimating parent or parents b. Ways of determining legitimation i. Legitimation means the grant of full legal status as a child and is usually accomplished by marriage of the child’s natural parents ii. A child who is legitimated under the law of applicable place of residence or domicile is recognized everywhere as legitimate 4. Child born out of wedlock a. The immigration law considers a child born out of wedlock to be a child for immigration purposes in relationship to its mother, the term illegitimate child having been changed to child born out of wedlock 5. Adopted child a. General requirements i. The law grants immediate relative or family-sponsored preference status to an adopted child if: the child was adopted while under the age of 16 years, and the child has been in the legal custody of, and has resided with, the adopting parent for at least two years ii. However, in light of the statutory definition of child, the two-year residence requirement must be completed before the adopted child reaches the age of 21 iii. Legal custody begins with the adoption decree, or earlier if it is awarded by legal process via a court or other government entity before the adoption b. Validity of adoption in place of residence of domicile i. An adoption must conform with the law of the applicable place of residence or domicile 6. Orphans a. To qualify as an orphan, a child must satisfy the following requirements: i. Age: be under 16 at the time a visa petition is filed on his or her behalf ii. Orphan status: have been orphaned by the death or disappearance of, or abandonment or desertion by, or separation or loss from, both parents iii. If one parent remains, that parent must be incapable of providing proper care for the child b. A child who meets the statutory definition is eligible for classification as an immediate relative on the petition of a U.S. citizen and spouse jointly c. The petitioning procedure involves two steps, which can be collapsed into one: i. The first is an advance processing application to decide whether the prospective adoptive parents can provide a proper home and would make suitable parents, involving a home study and fingerprint checks ii. The other determination focuses on whether the child is an orphan as defined d. For purposes of classifying orphans for adoption, the birth mother is considered the sole parent if the following requirements are met: i. The child was born out of wedlock ii. The child has not been legitimated iii. The child has not acquired a stepparent; and iv. The natural father had disappeared or abandoned or deserted the child e. A child in the United States either illegally or as a nonimmigrant is not eligible for orphan status 7. Amerasian children a. In 1982, Congress granted special immigration benefits to a child born in Korea, Vietnam, Laos, Kampuchea, or Thailand after 1950 and before October 22, 1982, who was fathered by a U.S. citizen § 11.o4: Parent of U.S. citizens
2.
9
E.
F.
G.
H.
I.
In general a. Parents of U.S. citizens make up the third segment of the immediate relative category b. The U.S. citizen petitioner must be at least 21 years old 2. Definition a. Parent is a defined term and means a parent who is such by reason of relationship to a child, also a defined term b. Thus it may include a stepparent, the mother of a child born out of wedlock, or an adoptive parent, if the statutory prerequisites are met c. But the parent child relationship is lost if the legal relationship was terminated before immigration benefits were sought § 11.05: First family-sponsored preference: (FS-1) Unmarried sons and daughters of U.S. citizens 1. The first family-sponsored preference (FS-1), with an allotment of 23,400 visas annually, plus any visas not required for the fourth family-sponsored preference, is available for the unmarried sons and daughters of U.S. citizens 2. The petitioner for the FS-1 beneficiary must establish that the beneficiary once qualified as his or her child 3. By definition, the FS-1 does not have an accompanying spouse a. But the FS-1 may have a child b. Such a child, accompanying or following to join the FS-1, would also be entitled to FS-1 classification § 11.06: Second family-sponsored preference: (FS-2) Spouses and unmarried sons and daughters of permanent resident aliens 1. In general a. The second family-sponsored preference (FS-2) has an annual allotment of 114,200 visas, plus any visas not used by the FS-1 group b. This category is available to qualified immigrants who are the spouses or the unmarried sons or daughters of an alien lawfully admitted for permanent residence c. The statute confers no immigration benefits on married children or parents of a lawful permanent resident alien d. Congress has divided FS-2 preference into two tiers; i. Tier 2A consists of spouses and minor, unmarried children ii. Tier 2B is limited to adult unmarried children iii. At least 77% of the total allotment for the second family-sponsored preference must go to aliens in tier 2A 2. V nonimmigrant status under the LIFE act a. Section 1102 of the Legal Immigration Family Equity Act (LIFE) of 2000 created a new V nonimmigrant classification for certain spouses and children of lawful permanent resident aliens § 11.07: Third family-sponsored preference: (FS-3) Married sons and daughters of U.S. citizens 1. The FS-3, with an annual allotment of 23,400 plus any visas not required for the FS-1 or FS-2, is made available to qualified immigrants who are the married sons or daughters of U.S. citizens 2. FS-3 includes legitimated children, but only if they were under the age of 18 at the time legitimation occurred 3. If a petitioning parent dies, a FS-3 petition may be automatically revoked at any time before the immigrant has been admitted to the U.S. as a lawful permanent resident, even after the petition has been approved and a visa issued § 11.08: Fourth family-sponsored preference: (FS-4) Brothers and sisters of U.S. adult citizens 1. The FS-4 annual allotment of 65,000 visas, plus any visas not used by FS-1, 2, 3, is made available to qualified immigrants who are the brothers or sisters of a U.S. citizen provided the citizen is at least 21 years old 2. FS-4 category is hopelessly backlogged, making it impractical to bring siblings to the U.S. 3. Applicants may want to sponsor a parent as an immediate relative, who may then sponsor the sibling under FS-1 4. Brothers and sisters under FS-4 include half brothers and sisters § 11.09: Preliminary visa petition requirements for immediate relatives and family-sponsored preferences 1. Nature and scope of petition requirements a. Prescribed form of relative visa petitions; proper filing i. The generally prescribed form for a visa petition on behalf of an alien relative, including an immediate relative, is Form I-130 ii. A self-petitioning widow or widower seeking classification as an immediate relative files Form I-360, as does the self-petitioning spouse or child of an abusive citizen or lawful permanent resident
1.
10
J.
iii. A visa petition on behalf of an orphan is filed or Form I-600 or I-600A, a visa petition for an Amerasian on Form I-360 iv. A separate visa petition is not needed for a preference beneficiary’s spouse and children who are accompanying or following to join him and are thus derivatively entitled to the same preference as the preference beneficiary b. Place of filing i. A separate petition for each principal beneficiary is submitted on the appropriate form, accompanied by the appropriate fee, to the INS or consular office having jurisdiction over the place where the petitioner resides 2. Supporting documents generally; abused spouse or child a. The visa petition must be accompanied by documents establishing: i. The petitioner’s U.S. citizenship or lawful permanent resident status and ii. The relationship of the petitioner to the beneficiary b. A document in a foreign language must be accompanied by an English-language translation certified by a competent translator 3. Self-petitioning spouses and children, including abused spouses and children a. In the case of a self-petitioner who is a widow or widower, married to U.S. citizen for at least two years at the time of the citizen’s death, with certain exceptions, or one who has been abused by a citizen or lawful permanent resident, the petitioner must document each of the material facts, including evidence of the valid marriage, the death, the deceased spouse’s citizenship or residence status, and the abuse where applicable b. Three categories of abused individuals are eligible to file such petitions: i. Aliens who were battered or subjected to extreme cruelty by their U.S. citizens or permanent resident spouses ii. Aliens spouses whose children were battered or subjected to extreme cruelty by the alien’s U.S. citizen or permanent resident spouses and iii. Alien children who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident parents 4. Validity of approval petitions and automatic conversion of classification a. The approval of a petition for an immediate relative or family-sponsored preference beneficiary remains valid so long as petitioner retains his or her status and relationship to the beneficiary, as established in the petition 5. Approval/denial of petition and right of appeal a. An approved visa petition is sent to the department of state’s visa processing center unless the beneficiary is in the United States and eligible for adjustment of status, in which case it will be retained b. A denial of a family visa petition is appealable to the BIA 6. Revocation of visa petition of relative of U.S. citizen or permanent resident a. Approval of a visa petition as the relative of a U.S. citizen or of a permanent resident alien is automatically revoked upon occurrence of any of the following contingencies: i. If the petitioner files a formal notice of withdrawal ii. If the beneficiary dies iii. If the petitioner dies, subject to humanitarian reasons iv. As to a spouse beneficiary, if the requisite marriage terminates by divorce v. If a child beneficiary seeking immediate relative status turns 21 or marries vi. If a person granted first family-sponsored preference status as the son or daughter of a U.S. citizen marries vii. Upon the marriage of a person granted second-preference status as the son or daughter of a lawful resident alien § 11.10: Conditional permanent resident status 1. In general a. Lawful permanent residence obtained by an alien spouse or a son or daughter on the basis of a marriage entered into less than two years before the date the beneficiary becomes a permanent resident is granted conditionally b. An alien admitted as a conditional permanent resident is ineligible for adjustment of status under INA § 245 c. However, once the alien’s conditional status is terminated, the bar is lifted 2. Termination of conditional status within two-year period a. The INS is authorized to terminate an alien’s conditional residence status within the two-year period if it determines that; i. The qualifying marriage was entered into for the purpose of procuring the alien’s entry as an immigrant
11
The qualifying marriage has been annulled or terminated, other than through the death of a spouse; or iii. A fee or other consideration was given for filing the petition 3. Joint petition to remove conditional status a. Within ninety days before the second anniversary of the date on which the alien obtained conditional residence, the alien and his or her spouse must file a joint petition for removal of the condition on INS form I-751 4. Application to remove conditional status through waiver of the joint petition a. In general i. Congress provided for removal of the condition through a discretionary waiver of the requirement for a joint petition if the alien demonstrates that: extreme hardship would result if such alien is deported the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated and the alien was not at fault in failing to meet the requirements the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty b. Time and place of filing i. The waiver application is filed on Form I-751, accompanied by the appropriate, fee, with the regional service center having jurisdiction c. Battered spouse or child waiver i. The battered spouse’s provisions of the INA authorize a waiver of the joint petition requirement if the conditional resident entered into the marriage in good faith, but during the marriage the alien spouse or child was battered or was subjected to cruelty 5. Procedure for joint petitions and waiver applications a. If the joint petition is properly filed and the parties appear for any required interview, the INS is supposed to make a decision within ninety days of the date of the interview, unless the interview is waived b. If the director approves the joint petition or waiver request, the INS notifies the parties and removes the condition, effective as of the second anniversary of the grant of conditional permanent residence K. § 11.11: K nonimmigrant status under LIFE act 1. Section 1103 of the LIFE of 2000 creates a new K nonimmigrant classification for the spouses of U.S. citizens and their children 2. Spouses are designated as K-3, while children are designated as K-4, to distinguish them from the K-1 and K-2 categories, reserved for fiancé and their children 3. A K-3 applicant must: a. Be the spouse of a U.S. citizen b. Have a Form I-130 filed on his behalf by his citizen spouse c. Have a Form I-129F completed and submitted on his behalf d. Submit a completed Form I-693 medical when he appears at the consulate 4. A K-4 applicant must: a. Be an unmarried child under 21 years of age of a K-3 visa applicant or holder b. Submit a completed Form I-693 when he appears at the consulate 5. The K-3/4 nonimmigrant classification does not provide immigrant status 6. To obtain immigrant status, once in the U.S., a K-3 nonimmigrant must file a Form I-485 7. K-3/4 nonimmigrant will become lawful permanent residents and receive their green cards when both the Form I-130 petition and their Form I-485 applications have been approved III. NONIMMIGRANTS: TERMS OF ADMISSION AND PROCEDURES A. § 2.05: Admission: Procedure; The I-94; Conditions and Incidents of Stay 1. In general a. The failure to maintain status will usually cause denial of an application to extend or change status, and may be the basis for a deportation proceeding 2. The requirement and procedure a. In general i. A valid passport and appropriate nonimmigrant visa issued by an American consul or a border crossing card are ordinarily required for nonimmigrant entry ii. The rule that the alien may be denied entry if found inadmissible by the Immigration Service upon arrival at a port of entry, despite issuance of the visa, is a precept of the double-check system that is to appear on every visa application
ii.
12
Form I-94: The arrival – departure record i. I-94 is ordinarily prepared in duplicate by the transportation line, and given to the alien for presentation to the immigrant inspector ii. The I-94 serves as evidence of lawful admission and alien registration, and is the document on which the Service endorses an extension or change of status as part of its notice of action iii. For an alien who cannot return the I-94, the carrier will prepare a substitute I-94 iv. A replacement of the Form I-94 can also be obtained by application on Form I-102 v. The requirements of I-94 do not apply to entries by Canadian citizens and British subjects residing in Canada or Bermuda who are entering the United States as visitors for business or pleasure on B-1, 2 for less than six months vi. The I-94, once issued, is the basis for readmission to the U.S. to the date of extension or change of status shown, after a trip to Canada or Mexico of no more than thirty days vii. As an I-94 is a document of alien registration, its copying with unlawful intent is a crime c. Time, conditions and incidents of admission i. In general An alien is to be admitted to the U.S. as a nonimmigrant for such time and under such conditions as the attorney general may by regulations prescribe Those conditions may include the posting of a bond to insure that the alien departs the U.S. upon failing to maintain his or her nonimmigrant status or when that status expires Unauthorized employment by a nonimmigrant ordinarily is a failure to maintain status ii. Period of admission As indicated, the time for which the alien is admitted is fixed by the immigrant inspector at the time of entry, and endorsed on the Form I-94; it need not relate to the date to which the visa is valid iii. Conditions and incidents of stay; Maintaining status Maintenance of status, timely departure, and a bond, if requested, to assure such conduct, are conditions of admission and extension, violations of which may cause deportability A nonimmigrant’s induction into the armed forces of the U.S. does not alter his immigration status, which is meanwhile suspended and resumed after his discharge Another added condition of admission and stay is obedience to all laws of U.S. jurisdictions which prohibit the commission of crimes of violence and for which a sentence of more than one year imprisonment may be imposed The requirements of registration of aliens in the U.S. are for most nonimmigrants met by the issuance and retention of the Form I-94 Aliens lawfully admitted to the U.S. as nonimmigrants are not required to register for military service so long as they continue to maintain a lawful nonimmigrant status Certain persons within the U.S. who act as agents of a foreign principal must register with the department of justice pursuant to the foreign agents registration act IV. GROUNDS OF EXCLUSION – INADMISSIBILITY; WAIVERS A. § 16.01: In General 1. Overview a. Although there are many grounds of inadmissibility, the number of aliens actually barred is relatively small, and has decreased over time b. With few exceptions, the grounds of inadmissibility apply equally to immigrants and nonimmigrants c. The president is authorized to impose additional restrictions on admission during time of war or national emergency 2. Distinction between exclusion and inadmissibility a. Despite the change in terminology, the terms exclusion and inadmissibility are functionally equivalent 3. Distinction between inadmissibility and deportability b.
13
B.
Aliens who entered the U.S., even surreptitiously, were subject to deportation grounds and procedures b. Aliens who had not entered the U.S. were subject to exclusion grounds and procedures c. Aliens in deportation proceedings had greater constitutional and procedural rights than aliens in exclusion proceedings d. Moreover, the burden of proof was on the government in deportation proceedings, while the alien had the burden of proof in exclusion proceedings e. Grounds of inadmissibility now apply to any alien who has not been admitted into the U.S., deportation grounds apply only after an alien has been admitted f. Similarly, an alien arriving in the U.S. must be removed to the country in which he boarded the carrier that brought him here, while any other alien may designate one country to which he wants to be removed § 16.02: Health – Related Grounds of Inadmissibility 1. In general a. Aliens may be inadmissible if they i. Have a communicable disease of public health significance ii. Have failed to receive certain vaccinations iii. Have a physical or mental disorder that may pose a threat to others iv. Are drug abusers or addicts 2. Background a. The medical policy is based on a desire to avoid the spread of contagion; in part from a wish to keep out undesirable residents b. Unless the alien is applying for adjustment of status in the U.S., the state department consular officer now determines the alien’s admissibility on the basis of medical examinations conducted overseas c. The admissibility of an applicant for entry on medical grounds is generally determined by medical officers 3. Communicable diseases of public health significant a. The following communicable diseases of public health significance make an alien inadmissible: i. Chancroid ii. Gonorrhea iii. Granuloma inguinale iv. HIV infection v. Infectious leprosy vi. Lymphogranuloma vii. Venereum viii. Infectious syphilis, and ix. Active tuberculosis 4. Vaccination requirement a. A person is inadmissible when seeking admission as an immigrant or when applying for adjustment of status to lawful permanent resident for failing to present evidence of vaccination against specified vaccine-preventable diseases b. The grounds of inadmissibility only apply to immigrants; it does not affect nonimmigrant admission 5. Physical or mental disorders or behaviors a. The law now makes inadmissible aliens who are determined to have or had a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or other 6. Drug abusers or addicts a. An alien is also inadmissible if determined to be a drug abuser or addict b. The bar does not affect persons who have merely experimented with drugs, or abusers who have been in remission from drug use for three years c. There is no waiver of this ground of inadmissibility d. Note that chronic alcoholism as such is no longer a ground of inadmissibility 7. Waivers of inadmissibility for health related grounds a. In general i. The attorney general may waive the application of section (a)(1)(A)(i) in the case of any alien who is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a U.S. citizen
a.
14
C.
has a son or daughter who is a U.S. citizen, or an alien lawfully admitted for permanent residence, or an alien with immigrant visa ii. Subsection (a)(1)(A)(ii) may be waived in the case of any alien who receives vaccination against the vaccine-preventable disease for whom medical authorities prescribe that vaccination would not be medically appropriate, or if the attorney general determines that such vaccination would be contrary to the alien’s religious beliefs or moral convictions iii. All applications for INA § 212(g) waivers are submitted on Form I-601 b. Waiver for people with tuberculosis i. Aliens with tuberculosis are inadmissible under INA § 212(a)(1)(A)(i), as tuberculosis is considered a disease of public health significance ii. Under INA 212(g)(1), such alien may seek a waiver if they: Are the spouses or the unmarried son or daughter, or the minor…. Have a son or daughter who is a U.S. citizen, or ….. c. Waiver for HIV infection i. The alien seeking waiver for HIV infection must establish that: The danger to the public health of the United States created by their admission is minimal The possibility of the spread of the infection created by the admission is minimal; and There will be no cost incurred by any level of government agency of the United States without the prior consent of that agency d. Waiver of vaccination requirement i. Vaccination requirements can be waived if: The alien is already vaccinated A civil surgeon certifies that the vaccination would not be medically appropriate; or The vaccination would be contrary to the alien’s religious beliefs e. Waiver for certain physical or mental disorders i. Waiver for certain physical or mental disorders requires the submission of: A statement that arrangements have been made to submit a medical report If the medical report is acceptable, a statement from a medical facility in the United States An assurance that the alien will comply with any special travel requirements specified by the public health service Any other assurances or bond that may be required to assure that necessary expenses will be met by the alien § 16.03: Criminal and Related Grounds of Inadmissibility 1. Criminals a. A record of criminal activity is one of the oldest bases for barring aliens who seek admission to the United States 2. Crimes involving moral turpitude a. Definition; Scope and classification i. Various definitions have described moral turpitude as an act of baseness, vileness or depravity, or an offense that is intrinsically and morally wrong b. Conviction; Admission of crime i. A definition of the term conviction, introduced in the statute in 1996, reads as follows: ii. The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a 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 guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed c. Crime i. It must be clear that the conduct in question was a crime under the law of the place where it was committed d. Definition of Offense i. The alien must have been clearly advised of the essential elements of the crime
15
3.
4.
5.
6.
7.
8.
This entails furnishing the alien with an adequate definition of the crime in understandable terms e. Scope of Admission i. The alien must admit all the acts constituting the essential elements of the crime ii. An alien no longer need admit the legal conclusion of guilt, provided he or she admits all the essential elements of the crime or the attempt or conspiracy to commit the crime iii. Note that there is an administrative policy not to accept an admission of the crime of adultery in the absence of a conviction f. Voluntariness i. The admission must be unequivocal and unqualified; it must be made by the alien himself, and a concession of guilt by the alien’s counsel may be unacceptable g. Other Circumstances Affecting Admission i. A person may be barred for admitting crime for which he has not been and never will be prosecuted ii. However, extrinsic circumstances may affect the acceptability of the admission iii. Thus, if the alien was prosecuted for the crime and acquitted, the subsequent admission of guilt would be ineffectual iv. An alien cannot make a binding admission of guilt for an offense in the united states for which he has received a pardon Violation of laws relating to controlled substances a. The statute makes inadmissible alien who has been convicted of a violation of or conspiracy or attempt to violate any law or regulation of a state, the United States, or a foreign country relating to a controlled substance b. An illegal trafficker is inadmissible even if there has been no criminal charge or conviction for the offense, as long as the consular or immigration officer knows or has reason to believe that he or she is engaged in such illegal traffic Multiple criminal convictions a. Aliens are inadmissible if convicted of two or more offenses b. The statute requires the alien to be actually sentenced to confinement for at least five years Controlled substance traffickers a. The statute makes inadmissible an alien who the consular or immigration officer knows or has reason to believe is an illicit trafficker in any controlled substance or is a knowing assister, abettor with others in the illicit trafficking in any such controlled substance Prostitution; Commercialized vice a. The statute makes inadmissible an alien who: i. is coming to the U.S. solely, principally, or incidentally to engage in prostitution or has engaged in prostitution within 10 years of the date of application for a visa, admission or adjustment of status ii. directly or indirectly procures or attempts to procure or procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution iii. is coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution b. One who was forced into prostitution for a shot period under duress is not barred c. Other unlawful commercialized vices include gambling, prostitution, and narcotics, and does not encompass a loan shark Aliens involved in serious criminal activity who have asserted immunity from prosecution a. The statue makes inadmissible an alien who has committed in the U.S. at any time, a serious criminal offense, exercised immunity from prosecution with respect to the offense, departed from the U.S. as a consequence of the offense and exercise of immunity, and has not subsequently submitted to the jurisdiction of the U.S. Exceptions; Waivers of inadmissibility a. Purely political offenses i. The state department regulations define purely political offenses as offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities b. Pardon; Judicial recommendation against deportation i. The immigration act of 1990 eliminated judicial recommendations against deportation c. Juvenile offenders
ii.
16
D.
The law permits the admission of an alien who committed a single crime involving moral turpitude while under the age of 18, provided more than five years have elapsed since the date the crime was committed ii. A dual offender is barred from admission but the limitation reaches only crimes d. Petty offense exception i. Present statute The statute provides that the bar does not apply to a single crime involving moral turpitude if the maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months ii. Nature of exception The exception afforded by this statute is mandatory, not permissive, and automatically benefits those who come within its terms This bounty is remedial, equivalent to a pardon, and its terms therefore are liberally construed iii. Prescribed conditions for exception First, the ameliatory exception is aimed solely at the subsection dealing with a crime involving moral turpitude Second, the exception now refers to conviction or admission relating to a crime, thereby covering, by its terms, all crimes e. Waiver under INA § 212(h) i. There are two ways to qualify for this waiver. Under the first alternative, the alien must establish that: he is inadmissible only for engaging in prostitution or procuring or attempting to procure prostitution his admission would not be contrary to the national welfare, safety or security of the United States; and he has been rehabilitated ii. Under the second alternative, the alien must be the spouse, parent, son or daughter of a U.S. citizen or of an alien lawfully admitted for permanent residence iii. The statue specifically precludes several categories of aliens from eligibility for its benefits. These are: aliens who have been convicted of acts that constitute murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture lawful permanent residents if they have been convicted of an aggravated felony, or have not lawfully resided continuously in the U.S. for at least sever years before the initiation of removal proceedings against them § 16.04: Security and Related Grounds of Inadmissibility 1. Current statutory grounds a. Sabotage, Espionage and other activities i. INA 212(a)(3)(A) makes inadmissible any alien who a consular officer or the attorney general knows, or has reasonable ground to believe, seeks to enter the U.S. to engage solely, principally or incidentally in any activity to violate any law of the U.S. relating to espionage or sabotage or to violate or evade any law prohibiting the export from the U.S. of goods, technology or sensitive information ii. The state department lists the following cases as examples of aliens who might be inadmissible under this ground: Aliens who are known or believed to be engaging in a general or specific intelligence mission against the U.S. Aliens who intend to engage in the unauthorized export of controlled technology from the U.S. Aliens known or believed to be operatives of underworld criminal organizations Aliens whose proposed activities in the U.S. violate foreign assets control regulations; and Aliens who while in the U.S. might engage in illegal political or conspiratorial activities against the U.S. government b. Terrorist activities i. INA § 212(a)(3)(B) makes inadmissible any alien who:
i.
17
E.
has engaged in a terrorist activity a consular officer or the attorney general knows or has reasonable ground to believe is engaged in or is likely to engaged after entry in any terrorist activity has, under the circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity is a representative of a foreign terrorist organization; or is a member of a foreign terrorist organization designated by the secretary of state ii. The department of state may designate an organization as a terrorist organization if the group: is a foreign organization engages in terrorist activity according to the statute; and threatens the security of U.S. nationals or the national security of the United States iii. The designation of an organization as a terrorist organization lasts for two years, at which time the state department may redesignate the organization for another two years iv. An organization designated as a terrorist organization may, within 30 days of the date of designation, seek judicial review of the designation in the U.S. court of appeals for the D.C. Circuit v. The statute specifically defines terrorist activity as any activity which is unlawful under the law of the place where it is committed and which involves any of the following: Highjacking or sabotaging any conveyance Seizing or detaining and threatening to kill, injure or continue to detain another individual to compel a third person or government to do or abstain from doing an act Violently attacking an internationally protected person or the liberty of such a person Assassination Using any biological agent, chemical agent or nuclear weapon or device or explosive with intent to cause damage Threatening, attempting or conspiring to do any of the above mentioned activities c. Foreign policy i. The law seeks to establish a single clear standard for foreign policy exclusions ii. An alien can be excluded if the secretary of state has reasonable ground to believe his or her entry or proposed activities within the United States would have potentially serious adverse foreign policy consequences iii. There are two exceptions to this general rule, one for officials of a foreign government, and a second for specified other aliens d. Membership in communist or other totalitarian party i. The statute still excludes any immigrant who is or has been a member of or affiliated with the communist or any other totalitarian party, domestic or foreign ii. There is a waiver for aliens whose membership in or affiliation with such a party was involuntary iii. The statute also authorizes a waiver of inadmissibility for immigrant members who are close family members of U.S. citizens or PR. e. Participants in Nazi persecutions or genocide i. The statute makes inadmissible aliens who participated in nazi persecutions between march 23, 1933 and may 8, 1945 ii. The statute also makes inadmissible any alien who has engaged in conduct that is defined as genocide for purposes of the international convention on the prevention and punishment of genocide § 16.05: Aliens Likely to Become a Public Charge 1. Standards for making the public charge determination a. The courts have ruled that a person likely to become a public charge is one whose anticipated dependence on public aid is primarily due to poverty and to physical or mental afflictions b. The INS applies a totality of the circumstances test instead of looking primarily at the applicant’s economic situation
18
F.
Affidavit of support requirement for certain aliens a. Affidavits of support have often been required in immigrant visa cases to avoid a public charge issue b. Affidavits of support are mandatory for most family-sponsored immigrants and some employment-based immigrants c. The person who signs the affidavit is known as the sponsor d. To qualify as a sponsor, individuals must be at least 18 years old, domiciled in the U.S., and able to support both the sponsor’s and the immigrant’s families at an annual income level equal to at least 125 percent of the federal poverty guideline 3. Public charge bonds a. The law permits the admission, in the discretion of the attorney general, of an alien found likely to become a public charge, if a bond or undertaking is furnished on his behalf indemnifying the U.S. as well as states and localities against his becoming a public charge b. The public charge bond is furnished on Form I-352 in an amount of at least $1,000, fixed by the attorney general § 16.06: Labor certification and other employment related requirements 1. General labor certification requirements a. Immigrants entering labor market i. Skilled and unskilled labor The first preference category which includes aliens with extraordinary ability, outstanding professors and researchers, and certain executives and managers do not require labor certification Labor certification is generally required, however, for the second employment-based preference group, that is, professionals with advanced degrees and aliens of exceptional ability in the arts, sciences or business ii. How the statutory bar works The withdrawal, before the alien’s application for admission, of the job offer on which the labor certification was issued renders the alien inadmissible b. Family-based immigrants i. The labor certification ground of inadmissibility excludes from its operation those entitled to exemption or preference on the basis of a relationship to a U.S. citizen or resident alien c. Special immigrants and non-immigrants i. By failing to target special immigrants and nonimmigrants, the statute effectively exempts these classes from its purview 2. Professional athletes a. An alien who intends to change employment must obtain another certification on the application of the new employer. In the case of a professional athlete, the statute dispenses with the need for a new labor certification b. The statute now provides that a labor certification granted on behalf of a professional athlete remains valid even if the athlete changes employers, as long as the new employer is a team in the same sport c. The statute defines professional athlete to mean an athlete employed by a team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $ 10 million per year d. The definition includes affiliated minor league teams 3. Foreign medical graduates a. Aliens classifiable as foreign medical graduates i. The statute applies only to aliens who are graduates of a medical school not accredited by a body approved by the secretary of education, and are coming to the U.S. principally to perform services as members of the medical profession b. Qualifying examinations i. Medical credentials requirements Credentialing refers to medical competence examinations for visa issuance purposes based on either employment in the medical profession or graduate medical education or training Licensing is a state-imposed requirement to practice clinical medicine ii. English competency requirements
2.
19
G.
In addition to the medical examination requirement, the statutory exclusion specifies that foreign medical graduates must also demonstrate that they are competent in oral and written English iii. Examination registration procedures Information and applications for the USMLE are available at U.S. embassies and consulates iv. Effect of passing requisite examinations An alien physician or medical student who has passed the NBME, VQE, FMGEMS, or USMLE examinations and has satisfied the English competency requirement will receive a certificate of satisfactory completion from the ECFMG A prerequisite to the procurement of such a certificate is a showing that the medical school attended is listed in the world directory of medical schools c. Statutory preclusion applicable only to specified foreign medical graduates i. The statutory exclusion applies only to medical graduates coming to the U.S. principally to perform services as members of the medical profession ii. It therefore does not apply to aliens who qualify as immediate relatives, special immigrants, refugees, or as preference immigrants on the basis of relationship to a citizen or resident alien iii. Doctors who are of national or international renown in the field of medicine are also outside the statutory exclusion § 16.07: Illegal entrants; Immigration violators 1. Aliens present in the United States without being admitted or paroled a. A broad new ground of inadmissibility applies to aliens who are present in the U.S. without being admitted or paroled, or who arrive at a place other than a designated port of entry b. Entry without inspection is eliminated as a ground for deportation, and instead is made a ground of inadmissibility c. There is an exception to this ground of inadmissibility for aliens who qualify for immediate relative status as the spouse or child of a U.S. citizen or lawful permanent resident 2. Aliens who fail to attend removal hearings a. Another bar to admissibility applies to aliens who without reasonable cause fail to attend their removal proceedings b. They are inadmissible for five years following their subsequent departure or removal from the United States 3. Aliens who have made willful misrepresentations in seeking entry or other benefits a. In general i. The statute makes inadmissible any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the U.S. or other benefit provided under the statute b. Analysis of the current provisions i. In general The statute as it now reads bars an alien permanently for a misrepresentation in a wide variety of circumstances ii. Retroactivity The administrative authorities have generally applied the statute to bar an alien for misrepresentation made at any time iii. Documentation In order for a misrepresentation to be considered within the purview of this section, the misrepresentation must have been made to an official of the U.S. government iv. Misrepresentation or fraud The BIA has determined that a finding of fraud requires a determination that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer Furthermore, the representation must have been believed and acted upon by the officer Material misrepresentation includes simply a false misrepresentation, willfully made, concerning a fact which is relevant to the alien’s visa entitlement v. Willfulness
20
H.
The requirement that the misrepresentation must be willful does not specifically require that it be fraudulent vi. Materiality Materiality must be measured pragmatically in the context of the individual case The central question is whether the misrepresentation was of direct and objective significance to a proper resolution of the alien’s application for a visa c. Waiver of inadmissibility i. Waiver procedure Submit the application for a waiver on INS Form I-601, with the prescribed fee If the alien is outside the U.S., submit the application to the consul for transmission to the service d. False claim to U.S. citizenship i. The statute now also bars an alien who falsely claims to be a U.S. citizen for any purpose or benefit ii. By its plain language, this ground requires a showing that the false representation was made for a specific purpose; to satisfy a legal requirement or obtain a benefit that would not be available to a non-citizen 4. Stowaways a. The statute now commands that alien stowaways be excluded; there is no discretion to admit them b. A stowaway detained at the border is not regarded as being within the U.S. and has no due process right to be released from custody pending removal 5. Smugglers a. The statute provides: Any alien who at any time knowingly has encouraged, induced assisted, abetted, or aided any other alien to enter or to try to enter the U.S. in violation of law is inadmissible b. There is an exception for aliens who smuggled only a spouse, parent, son or daughter into the United States 6. Aliens subject to a civil penalty for document fraud a. In general i. Subjecting the individual to civil penalties, INA § 274C probibits certain activities involving fraudulent documents, including forging, counterfeiting, altering or falsely making any document for the purpose of satisfying any requirement of the INA b. Waiver i. There is a limited waiver of inadmissibility for aliens who are inadmissible because they have violated INA § 274C ii. The person seeking the waiver must be: a lawful permanent resident seeking admission or adjustment of status as an immediate relative in one of the family-sponsored immigrant visa categories 7. F-1 student visa abusers a. Another ground of inadmissibility relates to aliens who violate INA § 214(1), which relates to students b. That provision limits F-1 students to one year at a public elementary or secondary school and requires reimbursement of the cost of the education c. Students who violate INA § 214(1) are inadmissible for a continuous period of five years after the date of violation § 16.08: Aliens Seeking Admission Without Proper Documentation 1. Nature of requirements a. One who seeks admission to the U.S. without the prescribed documents or with defective documents is inadmissible and subject to expedited removal b. The law prohibits the entry of an immigrant not in possession of: i. A valid, unexpired immigrant visa or equivalent document; and ii. A valid, unexpired passport, when such a passport is required c. The law also prohibits the entry of a nonimmigrant not in possession of: i. A valid passport good for six months after expiration of the initial entry; and ii. A valid nonimmigrant visa or nonresident alien’s border crossing card 2. Application of requirements
21
I.
J.
Lack of documents i. An alien who comes without any documents clearly is inadmissible ii. Obvious examples are stowaways or illegal border crossers, who are charged with being immigrants without immigrant visas b. Documents incorrectly describing classification i. Since the law requires a valid visa, properly issued to an eligible person, it concomitantly forbids the entry of a person who has been issued a visa in a classification to which he is not entitled c. Documents obtained by deception i. The general rule is that a document obtained by deception is equivalent to no document at all 3. Waivers a. Waiver of documentary requirements for non-immigrants i. The attorney general and the secretary of state, acting jointly, have broad discretionary power to waive the prescribed documentary requirements for nonimmigrant b. Visa waiver program i. The statute allows waiver of the normal documentary requirements for nonimmigrant visiting the U.S. in B-1 or B-2 status for up to 90 days from specified countries § 16.09: Persons Who Are Ineligible For Citizenship 1. Draft evaders a. Legislation adopted during world war II excluded aliens who had departed from the U.S. to avoid or evade military service b. The only exemption recorded in the statute is that aliens who were nonimmigrants at the time of their departure are not barred from entry as nonimmigrants c. An alien who was not liable for military service at the time of his departure may not be affected by this exclusion 2. Aliens relived from military service a. Legislative background i. An alien who has sought and obtained relief from military service is barred from naturalization ii. And so an alien ineligible to citizenship is inadmissible b. Statutory provisions i. All aliens ineligible to citizenship are inadmissible to the U.S., except those who seek to enter as nonimmigrant, although they are not deportable § 16.10: Aliens Previously Removed or Unlawfully Present 1. Aliens previously removed a. The statute imposes a five-year bar to admissibility for an alien ordered removed after proceedings initiated on the alien’s arrival b. The bar is 20 years for a second or subsequent removal, and permanent for aliens convicted of any aggravated felony c. There is a separate 10-year bar to admissibility for aliens otherwise ordered removed or who have departed the U.S. while an order of removal is outstanding 2. Aliens unlawfully present in the United States a. In general i. Being unlawfully present in the U.S. for specified periods can also result in inadmissibility ii. An alien unlawfully present for more than 180 days but less than one year, and who left the U.S. voluntarily before proceedings began, is ineligible for admission or reentry for three years from the date of departure b. Definition of unlawful presence i. Unlawful presence with respect to a nonimmigrant is only periods of stay in the U.S. beyond the date noted on I-94 arrival departure record c. Exceptions i. There are exceptions to both the three and the 10 years bars, for minors, lawful permanent residents, and asylees ii. Similarly, aliens who have filed bona fide asylum applications do not have to worry about being unlawfully present in the U.S. while their applications are pending iii. In addition to these statutory exceptions, the service has elsewhere stated that it considers the following categories of aliens to be lawfully present: Refugees under INA § 207
a.
22
d.
Asylees under INA § 208 Aliens granted withholding of deportation under INA § 243(h) Aliens granted cancellation of removal pending adjustment Aliens under a current grant of deferred enforced departure Aliens under a current grant of temporary protected status Cuban-Haitian entrants under INA § 202(b); and Aliens with properly filed applications under INA § 245
K.
Waivers i. Immigrants The 3/10 year bars can be waived for the spouse, son or daughter of a U.S. citizen or lawful permanent resident if extreme hardship would result to the qualifying relative ii. Non-immigrants Nonimmigrants can apply for a waiver of inadmissibility under INA § 212(d)(3) 3. Aliens unlawfully present after previous immigration violation a. There is a permanent bar to admission for aliens who were unlawfully present for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the U.S. without being lawfully admitted 4. Permission to reapply for admission a. In general i. The current INS regulation requires permission to reapply unless the removed alien presents satisfactory proof that he has remained outside of the U.S. for the statutorily-required time period ii. An illegal or unsanctioned entry breaks the required continuity of absence b. Exercise of discretion; Factors to be applied i. The factors considered in granting permission to reapply include: the basis for deportation recency of deportation length of residence in the United States applicant’s moral character applicant’s respect for law and order evidence of reformation and rehabilitation applicant’s family responsibilities any admissibility under other sections of law hardship to the applicant and others; and the need for the applicant’s services in the United States c. Procedures in seeking permission to reapply i. The application for permission to reapply is submitted on Form I-212, accompanied by the prescribed fee ii. The following procedures govern the submission of such applications: Immigrant visa applicants not physically present in the U.S. should file Form I-212 with the district director having jurisdiction over the place where the deportation or removal proceedings were held U.S. consuls are under instructions not to inquire routinely whether visa applicants have been removed from the United States Nonimmigrant visa or border crossing card applicants can request permission from a consular officer by submitting an application for waiver of inadmissibility or by filing Form I-212 Adjustment of status applicants should file Form I-212 with their adjustment applications Applicants for admission at a port of entry can seek permission to reapply by filing Form I-192 All other applicants should file Form I-212 with the district director at the place where the deportation proceedings were held § 16.11: Miscellaneous Grounds of Inadmissibility 1. Polygamists a. The current law proscribes those who come to the U.S. to practice polygamy 2. Guardian required to accompany helpless alien
23
L.
An otherwise admissible alien may be barred from entry for accompanying an inadmissible alien who requires protection or guardianship because the inadmissible alien is helpless from sickness or mental or physical disability or infancy b. On the other hand, if an inadmissible alien is not helpless, the inadmissibility does not necessarily affect the right of entry of his accompanying family 3. International child abductors a. An alien is inadmissible for withholding custody outside the U.S. of a child who has a lawful claim to U.S. citizenship from a U.S. citizen to whom custody of the child has been awarded by court order 4. Unlawful voters a. Aliens who vote in an election in violation of any federal, state or local requirement are inadmissible 5. Former U.S. citizens who renounced citizenship to avoid taxation a. Also inadmissible is an individual who officially renounces U.S. citizenship to avoid United States taxation 6. Aliens who confiscate or traffic in property of U.S. nationals a. Aliens who have confiscated property of U.S. nationals or who traffic in such property are inadmissible b. The act specifically exempts the following from the definition of traffics: i. Delivery of international telecommunication signals to Cuba ii. Transaction and uses of property incident to lawful travel to Cuba; or iii. Trading or holding securities publicly traded or held 7. Aliens deemed inadmissible for other reasons a. The president has the power to suspend the entry of any class of aliens for any period he deems necessary 8. Non-immigrants visa overstayers a. Overstayers are ineligible to be readmitted except on the basis of a visa issued in a consular office located in the alien’s country of nationality, unless extraordinary circumstances exist § 16.12: Waivers of Inadmissibility 1. In general a. Although the grounds of inadmissibility are quite comprehensive and exacting, the law permits waivers of inadmissibility in many circumstances 2. Immigrants a. Certain visa defects i. In general The attorney general has discretion to waive the documentary requirements for returning lawful permanent residents returning to the U.S. from a temporary visit abroad Waivers also are granted retrospectively for alien residents who previously arrived without proper documents ii. Procedure An arriving immigrant who seeks a waiver of documents must submit an application for such a waiver on Form I-193, accompanied by prescribed fee b. Waiver of substantive requirements for returning lawful residents i. the attorney general is authorized in his discretion to admit aliens lawfully admitted for permanent resident who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of sever consecutive years 3. Nonimmigrants a. Waiver of documentary waiver for nonimmigrants i. The attorney general and the secretary of state, acting jointly, are given broad discretionary power to waive the prescribed documentary requirements for nonimmigrants b. Waiver of substantive requirements for nonimmigrants i. The grounds of inadmissibility generally apply to nonimmigrants as well as to immigrants ii. However, the attorney general has broad discretionary power to waive the substantive grounds of inadmissibility for nonimmigrants iii. Three factors are considered in determining whether to approve the waiver: The risk of harm to society if the applicant is admitted The seriousness of the applicant’s prior violations; and
a.
24
c.
d.
The person’s reasons for wishing to enter the United States Where visa required i. If the alien requires a visa the attorney general may approve admission upon recommendation of the secretary of state or the consular officer Where visa not required i. If the alien does not require a visa the procedure is different ii. In such a cases the application for exercise of the discretionary authority is submitted on Form I-192, accompanied by the appropriate fee, to the district director in charge of the intended port of entry, prior to arrival in the U.S.
V. FOREIGN STUDENTS A. § 5.01: Introduction 1. Student status under an F-1 visa is available to foreign students who are coming to the U.S. to pursue a full course of study in any educational program 2. The parachute kids provision bars F-1 nonimmigrant student status to an alien who seeks to attend a public elementary school or a publicly funded adult education program 3. It also requires F-1 students in secondary schools to reimburse the school for the full, unsubsidized per capita cost of tuition B. § 5.02: Obtaining a Student Visa Abroad 1. The applicant must demonstrate: a. Acceptance by an academic or vocational institution, or in a language program approved by the attorney general b. Proficiency in the English language, or enrollment in English language courses leading to proficiency c. The availability of funds to cover all expenses during the entire anticipated period of study in the United States d. Existence of a residence abroad which the student has no intention of abandoning e. Unequivocal intent to depart the United States upon completion of the study 2. The application should consist of: a. Form OF-156, Nonimmigrant Visa Application b. Form I-20A-B or I-20M-N, Certificate of Eligibility c. Evidence of financial resources d. Evidence of ties to home country e. Valid, unexpired passport f. Passport-type photograph g. Application fee, if any C. § 5.03: Maintaining Student Status 1. Duration of status a. An F-1 student is admitted to the United States for duration of status, and if that status is not maintained, the student becomes deportable b. Regulations issued by the INS in 1987 define duration of status as the period during which a full course of studies is being pursued in any educational program, and any periods of authorized practical training, plus sixty days following course completion or expiration of authorized practical training within which to depart from the U.S. c. An M-1 student is admitted to the U.S. for the period of time necessary to complete the course of study indicated on Form I-20M-N, plus thirty days within which to depart the United States, or for one year, whichever is less d. Any failure to maintain status could be said to terminate their authorized stay and start a period of unlawful presence 2. Transfer to another school a. An F-1 student may transfer to another school if the student; is a bona fide nonimmigrant student; has been pursuing full-time study at the school he was last authorized to attend during the term immediately preceding the transfer; intends to e a full-time student at the new school; and has the financial resources to attend the new school b. F-1 students may change schools through a notification procedure whereby: the F-1 student obtains a Form I-20A-B from the new school and informs the designated official at the old school of his intention to transfer c. M-1 student must seek INS authorization to transfer schools 3. Extension of stay a. The 1991 final rules eliminated the need for extensions of stay and allow F-1 students to be admitted for the time during which they are pursuing a full course of study at an educational institution approved by the INS 4. Employment
25
D.
On-campus employment i. Part-time on-campus employment by F-1 students does not require prior INS approval ii. It also includes employment on the school’s premises for a commercial firm providing on-campus services to students b. Off-campus employment i. Off-campus employment is prohibited for F-1 students who remain in the United States in F-1 status for one year or less and is prohibited outright for M-1 students ii. The 1990 legislation, however, provided for a three-year pilot program, beginning October 1, 1991, under which an F-1 student may be employed off-campus, in a field unrelated to his course of study, under the following conditions: the alien has completed one year in F-1 status he is maintaining good academic standing engaged in a full course of study employed no more than 20 hours per week the employment must be an integral part of the student’s ed.program c. Employment based on severe economic hardship i. The 1992 interim regulations reinstated a student’s ability to obtain off-campus work authorization when the student can establish severe economic hardship ii. Among the circumstances that might create severe economic hardship are: loss of financial aid loss of on-campus employment substantial fluctuation in the value of currency or the exchange rate substantial increase in tuition or living costs unexpected change in the financial condition of the student’s source of support; and medical bills d. Application procedure i. To apply for employment authorization, a student must submit a completed Form I538, with fee, and his Form I-20 ID copy to the appropriate INS office ii. Supporting documentation, although not specifically requested, should be attached, including: Student’s affidavit including: statement of the financial resources Documentation supporting the affidavit e. Students from People’s Republic of China i. These adjustment provisions have expire 5. Practical training a. In general i. Practical training is off-campus training that allows an F-1 student to take employment related to his field of study ii. The student need not seek INS approval for such training; the service has delegated the responsibility for allowing such training is largely to the school b. Curricular practical training for F-1 students i. To be considered an integral part of the school’s curriculum, ordinarily the program must be listed in the school’s course catalog, with a description of the course and featuring a clear definition of the course objectives ii. Authorization must be obtained from the designated school official on submission of a Form I-538, a Form I-20 ID, and, if the training is with a specific employer, a job offer in writing c. Optical practical training i. For F-1 students, optional practical training is limited to a total of 12 months in the aggregate ii. Students in M-1 may take optional practical training only after the completion of the course of study § 5.04: Admission Procedures 1. Initial Admission a. Even though a consular officer issues a student visa, the entering student will still be examined by an immigration inspector who has the right to deny admission if the student fails to produce a valid passport and student visa endorsed for the school listed on the Form I20M-N or I-20A-B, together with evidence of sufficient funds o tatted the specified school 2. Subsequent admission
a.
26
A student may obtain readmission to the United States after a trip abroad with a properly endorsed Form I-20A-B or I-20M-N, or a new such form if there has been a substantive change in the information on the form b. In the case of an F-1 student, the absence must be no more than five moths 3. Admission without form I-120 a. Admission, or readmission, without a Form I-20A-B or I-20M-N may still be allowed if the immigration inspector finds that no bad faith is involved and the student is otherwise admissible E. § 5.05: Reinstatement to Student Status 1. Eligibility a. A student who goes out of status may be reinstated at the INS discretion b. Eligibility to apply for reinstatement requires: i. Establish that the violation resulted from circumstances beyond the student’s control plus hardship ii. That the student currently pursues, or intends to pursues, a full course of study iii. That the student has not engaged in off-campus employment without authorization iv. A showing that the student is not deportable on any other ground 2. Procedure a. A written request for reinstatement to lawful F-1 or M-1 status must be submitted to the district office in the form of an affidavit, with accompanying documentation, Form I-20A-B or I-20M-N from the school the student is attending or plans to attend, and the Form I-20 ID copy b. For F-1 students, a Form I-539 must also be submitted c. A denial of reinstatement is not appealable 3. Consideration of alternatives a. Consideration must be given as to whether seeking reinstatement is the best alternative in a practical sense b. It may be that leaving the United States, thus ending unlawful status, and then seeking readmission, may be the better choice for some students 4. Determination of the case a. If reinstatement is granted, the INS endorses the Form I-20 ID copy and Form I-20A-B or I20M-N to so indicate b. Denial results in an endorsement on the Form I-20 ID copy, and usually a grant of ten days for voluntary departure 5. Post-judgment tactics a. If reinstatement is denied, the student’s choices are: i. Filing a motion to reconsider based on incorrect application of the law ii. Filing a motion to reopen based on the availability of new information iii. Seeking an extension of voluntary departure time F. § 5.06: Post-Study Options 1. Practical training after completion of studies a. A student should consider the option of practical training by employment in the field of study completed 2. Other nonimmigrant classifications a. The person who has completed a course of study, may be eligible for employment under one or more of the nonimmigrant classifications b. Aliens who have successfully completed a course of study, and have taken a university degree in a specialized field that ordinarily requires such education, are usually qualified for H-1B classification 3. Lawful permanent residence a. Unlike the laws of some other countries, U.S. immigration law does not provide for automatic conversion to permanent residence merely because someone has lived in the United States for a period of time b. A lengthy stay in student status is not a basis for adjustment to permanent residence VI. EMPLOYMENT-BASED IMMIGRANTS A. § 18.01: In General; New System; Priority Dates 1. The total allocation of visa numbers issued annually on the basis of skills and jobs is 140,000 2. Priority of consideration within each preference depends on the order in which petitions are filed 3. For a priority date to be established, however, the alien must be qualified for the job at the time of petition filing B. § 18.02: Requirements in Common Relating to Employment and Labor Certification 1. In General; Roles of INS and DOL
a.
27
2.
For academics and researchers in the EB first preference, the need for actual employment is clearly indicated, as the immigrant must be coming to take a tenured or comparable position with a teaching or research institution b. For both the EB-2 and EB-3 preferences, the employer must obtain a certification from the U.S. department of labor, relating chiefly to the unavailability of qualified workers c. The DOL’s role is limited to findings concerning the availability of qualified U.S. workers and the impact of alien employment on the domestic market while the INS is empowered to make all other necessary determinations as to preference status eligibility Employment, Employer, and Employee a. Portability Under AC21 i. Most of the features of AC21 have to do with H-1B status, but § 106(c) provides an important benefit to certain aliens applying for permanent residence under one of the employment-based preferences b. Employment Defined i. Employ means “to use, to have in service, to cause to be engaged in doing something,” it does not mean to hire, but to use whether under hire or not ii. Under the DOL’s certification regulation, self-employment does not qualify as employment; nor does part-time employment c. U.S. Employer Seeking Services or Intending to Employ; Financing ability i. Within the DOL labor certification regulations, affecting both the second and third preferences, and employer is defined as an entity which currently has a location in the U.S. to which U.S. workers may be referred for employment, and which proposes to employ a full-time worker at a place within the U.S. ii. Moreover, under the statute, the second or third preference petition must be submitted by an employer desiring and intending to employ the alien iii. An employer must establish financial ability to meet the certified wage requirements from the time the priority date is established until lawful residence is obtained; evidence of the employer’s financial ability must be submitted with any petition requiring a job offer d. Permanency of Position i. In the EB third preference, the skilled and unskilled worker categories are limited to immigrants coming to perform labor that is not of a temporary or seasonal nature ii. The service may deny a visa petition, even if a labor certification has been issued, upon finding that the job is temporary e. Alien’s Intent i. An alien who, at the time of entry, does not intend to take up the occupation or job which is the basis of the EB second or third preference petition is inadmissible under INA § 212(a)(5) for lack of a labor certification and therefore deportable after admission ii. Absent bad faith, there is no requirement in the law that an alien who takes a job for which he has a labor certification must remain on the job any particular length of time f. Alien’s Qualifications i. Physicians or Surgeons Certain physicians who seek to immigrate in the EB second or third preferences face a special set of barriers The statute bars them from coming chiefly to render medical services, if they are a graduate of a medical school not specifically accredited for this purpose, unless they have passed certain licensing exams and are competent in English Physicians seeking to qualify in the EB-2 preference need an individual labor certification unless they can establish their exceptional ability under DOL schedule A, Group II, or receive a waiver in the national interest ii. Nurses Nothing in the INS regulations specifically governs the eligibility of registered nurses for EB-2, although they have long been recognized by the service as members of the professions iii. Health-Care Workers: Competency Certification Aliens coming to the United States primarily to work as health-care workers, other than as physicians, are inadmissible unless, at the time of visa issuance or adjustment of status, they present a certificate of
a.
28
competence from the commission on graduates of foreign nursing schools or an equivalent credentialing organization approved by the attorney general The Labor Certification a. Schedule A: Blanket Certification for Nurses, Physical Therapists, Persons of Exceptional ability i. The DOL has found there are insufficient U.S. workers qualified and available for nurses, physical therapists, and persons of exceptional ability and that the employment of aliens in those occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed ii. An alien qualified in one of these categories need not and indeed may not seek an individual labor certification b. Occupations Given Special Handling: Persons of Exceptional Ability as College or University Teachers or as Performing Artists; Sheepherders i. College and University Teachers For college and university teachers, the petitioner submits the ETA-750, reflecting the individual’s qualifications and job description The petitioner also submits documentation to show that the individual was selected in a competitive recruitment and selection process as more qualified than any U.S. workers who applied for the job ii. Performing Artists of Exceptional Ability Applications for persons of exceptional ability in the performing arts are also subject to special handling, with the same rules for competitive recruitment and selection that apply to teachers Here too, for certification to issue, the audition process must result in a showing that the alien applicant is better qualified than any U.S. workers who respond to the recruitment iii. Sheepherders Although they are included within the regulation for special handling, the DOL does not process applications for sheepherders and does not require a showing that qualified U.S. workers are unavailable The petitioner offering the sheepherding job simply submits the application to INS with the EB third preference petition I-140 c. Professional Athletes i. Professional athletes get special treatment ii. A professional athlete is someone employed as such by a team that belongs to an association of at least six sports teams that have combined annual revenues of more than $10 million, if the association regulates the conduct of its members and their contests, or by any affiliated minor league team § 18.03: First Employment-Based Preference: Priority Workers 1. Aliens of Extraordinary Ability a. Statutory Description of Category i. The statutory characteristics of the first category of priority worker are as follows: The alien has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and the alien’s achievements have been recognized in the field through extensive documentation The alien seeks to enter the United States to continue work in the area of extraordinary ability, and The alien’s entry into the United States will substantially benefit prospectively the United States b. Extraordinary Ability as Defined in the Regulations i. The service defines extraordinary ability as a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor ii. It requires evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise c. Entry to Work in the Field of Extraordinary Ability i. Although extraordinary applicants do not need an employer or other sponsor, they must be coming to continue work in the area of expertise d. Substantial Benefit Prospectively to the United States 3.
C.
29
D.
That the alien’s entry substantially benefit prospectively the United States is the most liberal of such demands ii. Apparently, a substantial benefit to the United States in any of its aspects, interests or needs will do 2. Outstanding Professors and Researchers a. An academic may qualify as a priority worker by meeting the following description: i. Being recognized internationally as outstanding in a specific academic area, ii. Having at least 3 years of experience in teaching or research in the academic area, and iii. Seeking to enter the United States for a tenured position within a university or institution of higher education to teach in the academic area, for a comparable position with a university or institution of higher education to conduct research in the area, or for a comparable position to conduct research in the area with a department, division, or institute of a private employer 3. Executive and Managerial Intra-company Transferees a. Defined i. Included as well among priority workers is an intra-company transferee who will work as a manager or executive b. In General i. This provision entitles a transferring manager or executive to enjoy first preference benefits as a priority worker if employed for at least one year out of the last three by the same firm or its subsidiary or affiliate c. Year’s Employment Outside United States i. Like the L-1 candidate, the alien has to have worked the one year, out of the last three, outside the United States ii. There is no requirement that the year’s employment have been continuous d. Entity or Subsidiary or Affiliate Thereof i. A subsidiary is legal entity which the parent controls and in which it has, directly or indirectly, some equity interest; in the case of a joint venture, the parent owns half or has equal control and veto power ii. An affiliate is one of two entities owned and controlled by the same parent, individual, or group of individuals e. Managerial or Executive Capacity i. A manager may manage a function of the organization as well as the organization itself or one of its components ii. In respect of employees supervised, the manager must have authority to take or recommend critical personnel actions, such as dismissal iii. The administrative definition of executive is one who directs the management of the organization itself or one of its major components or functions, establishes its goals and policies, has wide discretion, and receives only general supervision from higher executives, the board or the stockholders iv. Under another qualification, an individual is not to be considered a manger or executive merely on the basis of the number of employees supervised § 18.04: Second Employment-Based Preference: Advanced-Degree Professionals: Exceptional Ability 1. Defined and Generally a. The second EB preference has an annual allocation of approximately 40,000 visa numbers, plus those left over from the first preference b. The second preference immigrants are aliens with advanced degrees or aliens with exceptional ability in the sciences, arts, or business c. The need for a job offer may be waived if the attorney general deems it to be in the national interest 2. Members of the Professions; Advanced Degree a. Profession Defined i. The INS regulations define profession as any of the occupations listed in the statutory definition plus any occupation for which a United States baccalaureate or its foreign equivalent is the minimum requirement for entry into the occupation ii. Ordinarily, the petitioner need not submit evidence that the alien is qualified to practice the profession in the United States b. Requirement of an Advanced Degree i.
30
E.
F.
To qualify in the second EB preference as a member of the professions it is not enough to hold a bachelor’s degree ii. The alien must have an advanced degree, which the service takes to mean any United States academic or professional degree 3. Exceptional Ability in the Sciences, Arts, or Business; Benefit to the U.S. a. Exceptional Ability i. Persons of exceptional ability in the sciences, arts, or business occupy the other category in the second EB preference ii. The service defines exceptional ability in the sciences, arts, or business as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business b. Sciences, Arts, or Business i. Under the second preference, the alien’s exceptional ability must be in the sciences, arts or business. These terms are defined neither in the INA nor the regulations of the service ii. The department of labor, for the purposes of its schedule A, Group II, defines the term science or art as any field of knowledge or skill in which colleges and universities commonly offer a degree program iii. The term business should be given a broad reading that covers virtually every aspect of commercial affairs c. Prospective Benefit to the United States i. Under the INA, the alien’s exceptional ability must substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States 4. Requirements of Job Offer, Labor Certification; Waiver of the Job Offer a. The INA also requires that the services of the second-preference beneficiary be sought by an employer in the United States b. Just as explicitly, it provides that the job-offer requirement may be waived in the national interest; the waiver is available not only in the case of persons of exceptional ability but to professionals with an advanced degree as well c. The INA also imposes a labor certification requirement on second and third-preference beneficiaries d. The following factors are considered to be in the national interest: i. improving the U.S. economy; ii. improving wages and working conditions of U.S. workers; iii. improving education and training programs for U.S. children and under-qualified workers; iv. improving health care; v. providing more affordable housing for young and or older, poorer U.S. residents; vi. improving the environment of the United States and making more productive use of natural resources; or vii. responding to a request from an interested U.S. government agency e. To determine whether the prospective national benefit showing is made, the service will consider three factors, each one of which has to be satisfied: i. The first factor is whether the alien seeks work in an area of substantial intrinsic merit ii. The second factor is whether the alien’s proposed activity will be national in scope iii. The third factor is whether the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications § 18.05: Third Employment-Based Preference: Skilled Workers, Professionals, and Other Workers 1. Members of the Professions With a Degree a. Immigrants may qualify as EB-3 if they have at least a baccalaureate degree and are members of the professions b. The statutory definition of members of the professions includes architects, engineers, lawyers, physicians, surgeons and teachers, but is not exclusive 2. Skilled and Other Workers a. It may matter a great deal whether a worker is pegged a skilled worker as opposed to other worker b. The latter category, limited to only ten thousand of the third-preference allocation, is heavily oversubscribed § 18.06: Fourth Employment-Based Preference: Special Immigrants; Religious Workers
i.
31
G.
H.
Ministers and other Religious Workers a. The fourth preference category is limited to 10,000 visa numbers and include ministers and other religious workers b. Like the ministers, the other religious workers must, for the two years immediately before application, have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States 2. Petition Procedure a. Aliens claiming status as a special immigrant in the D category, may file a petition only with the secretary of state, after notice of appropriate recommendation b. Petitions for the other fourth-preference categories must be filed with the service by or on behalf of the alien; those in the religious categories C are to be filed on Form I-360 § 18.07: Fifth Employment-Based Preference: Immigrant Investors: Pilot Program 1. Basic Program a. The fifth preference, with approximately 10,000 visa numbers, is for immigrants seeking admission to engage in a new commercial enterprise which would benefit the U.S. economy and create at least ten full-time jobs b. The basic amount of investment is $1 million, although the attorney general may adjust the basic amount upward by regulation c. If the investment is made in a targeted employment area, the attorney general may specify a lesser amount, but not less than one-half the basic amount d. A targeted area is either a rural area, as defined in the statue, or one whose unemployment rate is at least 150% of the national average e. To deter fraud, the residence obtained by the entrepreneur and any spouse or child on the basis of this provision is made conditional for two years f. The entrepreneur’s residence may be terminated at the end of the two-year period or earlier on a finding that the enterprise was not established, or was established solely to evade the immigration laws g. The enterprise may be established through virtually any form of entity; and two or more immigrants, each investing $1 million, may join together in establishing a qualified business h. The petition must be filed on Form I-526 with the required documentation at the service center having jurisdiction over the area 2. Pilot Program a. Responding to the disappointing results of the basic investor program, congress enacted a five-year investor pilot program to create jobs indirectly b. To qualify as an alien entrepreneur under the pilot program, the applicant must make the qualifying investment within an approved regional center c. The requirement of creating at least ten new jobs is met by a showing that, as a result of the new enterprise, such jobs will be created directly or indirectly through revenues garneted from increased exports § 18.08: Petition Procedure: Petition and Filing; Petitioner and Changes in Ownership; Documentation; Employer’s Financial Ability; Interview or Investigation; Decision and Appeal; Revocation 1. The Petition and Proper Filing a. The petition for any of the first three employment-based preferences should be filed on INS Form I-140; for a minister or other category of religious worker under the fourth preference, on Form I-360 b. The form to be filed for the alien entrepreneur under the fifth preference is the I-526 2. The Petition a. To classify an alien in certain of the preference categories, it is the U.S. employer who desires and intends to employ the alien that may file the petition b. In the case of the first-preference A category, the petition may be filed by the alien or anyone on his or her behalf 3. Changes in Petitioner’s Ownership, Location; Mergers, Successors in interest a. If the petitioner has been bought out, merged, or had a significant change in its ownership, the successor in interest must file a new I-140 petition 4. Place of Filing a. Petitions for the first four preferences must be filed only with the service center having jurisdiction over the intended place of employment b. The petition for classification as an entrepreneur must be filed with the service center having jurisdiction over the principal area where the enterprise is or will be doing business 5. Documentation a. The petitioner has the burden of documenting the beneficiary’s basic eligibility for the preference
1.
32
b. Additional documentation may be needed to meet the requirements of a labor certification VII. CONSULAR PROCESSING OF IMMIGRANT VISAS A. § 25.01: In General; Compared With Adjustment of Status 1. Visa processing may be thought of as a last-ditch alternative to adjusting status in the United States 2. An adjustment applicant can ordinarily challenge an administrative denial in removal proceedings, and, if necessary, in court, although the scope of judicial review is now limited in scope 3. Adjustment which used to be faster, now often takes longer than consular processing 4. To preserve the adjustment application, an alien who departs must first secure an advance parole document, which can sometimes take 60 to 90 days from the adjustment filing B. § 25.02: Immigrant Visa Number Eligibility 1. The first step in visa processing is to establish immigrant visa eligibility under one of the appropriate statutory classifications as an alien who: a. is the beneficiary of an approved visa petition which classifies the alien as an immediate relative b. is a special immigrant under INA § 101(a)(27), whether or not needing a visa c. is the beneficiary of an approved family-sponsored or employment-based preference petition under INA § 203(a) or (b) d. has been designated a diversity immigrant by lottery under INA § 203(c); or e. has derivative entitlement under INA § 203(d) as the spouse or child of a preference beneficiary 2. An alien who is neither an immediate relative, special immigrant, preference beneficiary, nor diversity immigrant, will not be processed for an immigrant visa C. § 25.03: Timing of Visas, Priority Dates, Order of Processing, Allocation, and Chargeability 1. In general a. The order in which visa applicants are processed can be critical b. An alien with no hope of gaining a visa for a long time or at all may simply forgo the effort c. Immediate relatives, unrestricted in number, can usually count on having the visa within six to eight months of the date their visa petition was approved 2. Priority dates and order of consideration a. The general rule for the preference classes is that consulates request applicants to process in the chronological order of their priority dates within each preference, observing the percountry and dependency limitations b. In practice, visas are not always issued in that order, usually because some aliens are slow to return the prescribed forms and delay the necessary clearances c. Diversity applicants are processed under a random formula d. The priority date for a preference category is the date an approved petition was filed e. An alien who fails to use a visa before its validity expires is entitled to the original priority date established by the petition, but must apply for renewal of the visa 3. Allocation and visa number control a. Although the numerical limits discussed operate on a first-come, first-served basis within each preference, place of birth can still be a factor b. The total number of immigrant visas given to the natives of any single foreign state may not ordinarily exceed 7% of the numerically limited visas issued annually 4. Chargeability a. The general rule that place of birth determines the immigrant’s chargeability for the purposes of the annual limitation, applies generally, and is not changed if he moves to another country or acquires another nationality D. § 25.04: Consular Jurisdiction; Homeless Cases 1. Ordinarily, the visa applicant must seek the visa in the consular district of her residence 2. In the case of an immediate relative or family-sponsored or employment-based preference, the national visa center will forward the approved petition to the appropriate consulate 3. For residents of countries where the U.S. does not maintain a consular post or political or security reasons prevent the U.S. from maintaining visa facilities FAM has selected other posts for the visa processing 4. As the department requires applicants at certain designated posts to have fingerprints taken there, an applicant residing in the U.S. will have to make at least two trips to that post, one for the prints, the other for the interview and issuance of the visa E. § 25.05: Processing the Application 1. Initial steps a. The DOS has established a packet system for the processing of immigrant visa applications 2. The packet system
33
F.
G.
H.
I.
VIII. A.
Packets 1 and 2 are information sheets that set out the requirements and instruct the applicant on the initial steps to take, usually by having a petition filed with INS b. Packet 3 consists of a transmittal letter, OF-169, informing the alien of the petition approval and containing a checklist of required documents c. By returning the letter with a signed endorsement, the alien signifies that the documents indicated by a check have been assembled and that the applicant desires an appointment for a formal visa application for herself and her accompanying family members d. When an allocation of a visa number is received from the visa office, packet 4 is sent to the intending immigrant e. This includes notification of an appointment time to file the formal application, as well as instructions concerning the medical examination required at that consular post f. Packet 4 also includes the formal application for an immigrant visa, Form OF-230 g. Packet 4 does not assure the immigrant that a visa will be issues, since that determination will be made by the consular officer only after the medical examination is completed, the application and all supporting documents are reviewed, and the applicant interviewed 3. The required documents a. In addition to a passport, each applicant must furnish the following documents: i. Police Certificate: the alien must obtain certificates from the police authorities where the alien resided for at least one year ii. Prison Record: if any iii. Military Record: if any iv. Record of Birth: original v. Proof of Financial Responsibility: affidavit of support vi. Other Documents: if requested by the consular officer b. In all cases photographs are required of each applicant c. Applicants from Canada, Dominican republic, El Salvador, Haiti, India, Ireland, Mexico, China, Philippines, and Poland over the age of 16 must have fingerprints taken at the post for an FBI check § 25.06: Interview and Formal Visa Application 1. Each applicant for an immigrant visa must undergo a mental and physical examination to determine admissibility 2. Following the examination, either the same day or soon after, the applicant appears at the consular post for an interview, filing of the visa application, and issuance of the visa 3. The formal application for an immigrant visa is made of Form-230 4. The burden of proof in establishing eligibility is on the alien § 25.07: Issuance of the Visa and Its Effect 1. The consul must either issue or deny the visa 2. Unless the visa is issued the same day, or , in practice by the end of the next working day, the consul must find the applicant ineligible on some ground under INS §§ 212(a) or 221(g) 3. The applicant presents the visa, ordinarily valid for six months, to an immigration inspector at a U.S. port of entry where the applicant seeks admission as a lawful permanent resident 4. That inspection, at which the alien is again subject to denial as inadmissible, is the second part of the double-check system § 25.08: Refusal to Issue the Visa 1. A consul who knows or has reason to believe that the applicant is ineligible shall refuse to issue the visa 2. The exercise of the consul’s authority to refuse the visa is unreviewable under the statute § 25.09: Revocation of the Visa 1. An immigrant visa may be revoked by a consular officer or the secretary of state 2. A consular officer may invalidate the visa on finding that it was obtained by fraud, willfully false or misleading representation, willful concealment of a material fact or other unlawful means; or that the applicant was, or has become, ineligible 3. Neither the secretary of state nor the consul is authorized to revoke the visa after the alien has been admitted to the United States ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE § 26.01: Adjustment of Status Defined; INA § 245 1. The procedure called adjustment of status is a means of becoming a lawful permanent resident of the United States without leaving the country 2. Aliens who qualify by marriage under the fiancé provision are also adjusted under the § 245 3. Change from one nonimmigrant status to another is properly referred to as change of status rather than adjustment
a.
34
B.
C.
D.
E.
F.
G.
During the pendency of an application for adjustment, the alien is generally authorized to remain in the United States and is ordinarily not considered illegally within this country § 26.02: Eligibility Summarized 1. Under § 245(a), the only alien who may be adjusted is one who is inspected and admitted or paroled into the United States, and only if three conditions are met: a. the alien makes an application for such adjustment b. the alien is eligible to receive a visa and is admissible for permanent residence; and c. an immigrant visa is immediately available at the time of application 2. Note: for an additional fee of $1,000, applicants could adjust under § 245(i) even if they ran afoul of § 245(a) by entering without inspection § 26.03: Basic Eligibility 1. Inspected, admitted, or paroled a. Eligibility depends in the first instance on how the alien arrived in the U.S. b. Under § 245(a), only the alien who is inspected and admitted or paroled may qualify, but this requirement can be overcome by paying $1,000 c. However, one who is admitted by intentionally making a false claim of citizenship is considered to have evaded inspection d. The test is also met by the alien who is admitted, regardless of whether the admission is proper e. The fact of admission or parole is ordinarily evidenced by the I-94 form endorsed 2. Eligible for visa and for admission to permanent residence a. An alien seeking adjustment under § 245 must be eligible for a visa and be admissible to the United States b. In this respect, the applicant is in the same position as an alien seeking an immigrant visa at a consular post c. The applicant has the burden of establishing admissibility 3. Immigrant visa immediately available a. Immediate availability of a visa at the time the application is filed is indispensable to adjustment eligibility b. This requirement is automatically met by the immediate relative or other alien who is exempt from numerical exemptions § 26.04: Classes Specifically Barred From § 245 Adjustment; Temporary Relief Under § 245(i) 1. Aliens admitted or paroled and immediately eligible for a visa are nevertheless disqualified for adjustment if they fall within the categories contained in § 245(c), (d), (e), and (f) 2. The alien who has filed for adjustment may also obtain an employment authorization document under § 274a.12(c)(9) valid for any employment § 26.05: Adjustment Is Discretionary 1. Although an applicant for adjustment may meet all the technical requirements for adjustment, approval is not automatic; under the terms of the statute, it is a matter of discretion 2. If an application for adjustment is denied as a matter of discretion, the alien who wishes lawful residence may then be relegated to an application for an immigrant visa 3. Although that application may not be denied as a matter of discretion, it requires a departure from the United States § 26.06: Application and Other Procedures: Filing Administratively; Consideration in Deportation or Exclusion Proceedings 1. The benefits of § 245 adjustment require an application 2. They may not be conferred except upon compliance with the application procedure prescribed in regulations, which are provided for by statute 3. This procedure involves the filing of a completed application, required fee, biographic data form, fingerprints, photographs, and birth certificate 4. An application for adjustment is filed on Form I-485 with the INS office with jurisdiction 5. Applicants who base adjustment eligibility on INA § 245(i) must file Form I-485 and Form I-485A and pay the additional sum of $1,000 § 26.07: Employment Authorization; Advance Parole 1. With certain exceptions, aliens who have taken unauthorized employment before application for adjustment become ineligible for adjustment under INA § 245(c)(2), (8), unless they are able to file under § 245(i) 2. Work authorization for the adjustment applicant is not automatic; an application must be filed on Form I-765 3. The applicant’s departure from the U.S. during the pendency of an administrative application for adjustment under § 245, is treated as an abandonment of the application unless advance parole was granted
4.
35
H.
I.
J.
K.
L.
M.
N.
§ 26.08: Adjustment of Status Versus Consular Processing; Relative Advantages 1. Aliens who are abroad and for whom an immigrant visa is readily available in the country where they reside will ordinarily follow the basic process of qualifying for residence by obtaining an immigrant visa, at a nearby U.S. consular office, and applying for admission at a U.S. port of entry 2. Visa processing may also be an advantage when it is faster than adjustment 3. To many aliens who seek residence after coming to the U.S., adjustment is the preferred vehicle 4. Some lawyers regard adjustment as the standard procedure, visa processing being the fallback alternative 5. The ultimate denial of adjustment need not preclude a later application to a U.S. consul for an immigrant visa § 26.09: Adjustment of Status Under NACARA 1. In general a. Under §§ 201 and 202 of the Nicaraguan Adjustment and Central American Relief Act, certain Nicaraguans and Cubans who apply before April 1, 2000, are permitted adjustment of status without a visa number, despite certain grounds of inadmissibility 2. Eligibility; proof of timely physical presence a. NACARA’s adjustment benefits apply only to nationals of Nicaragua and Cuba who have been physically in the U.S. continuously since at least 12/1/95 and until the date of their application 3. Spouses, children, unmarried sons and daughters a. Nationals of Nicaragua or Cuba may also qualify for adjustment under NACARA if they are the spouse or child of an alien whose status is adjusted to residence under these provisions 4. Procedure; work authorization; advance parole a. On filing an application for adjustment under NACARA, an applicant may seek a stay of a final order of deportation or removal per regulations to be issued by the attorney general b. An applicant for adjustment under NACARA may be issued work authorization during the pendency of the application c. The authorization must be given once the application has been pending more than 180 days 5. Review of denial a. Applicants for adjustment under NACARA are to be permitted the same right to administrative review as are applicants under INA § 245, and under the same procedures b. Who is your daddy § 26.10: Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) 1. Eligibility; proof of timely physical presence a. HRIFA requires the attorney general to adjust the status of Haitian nationals who: i. Are nationals of Haiti present in the U.S. on 12/31/95 ii. Have been physically present since at least 12/31/95 until the filing of the application iii. Properly file an application before April 1, 2000 iv. Be admissible apart from the exceptions v. Fall within one of the five classes including: Haitian nationals who filed for asylum before 12/31/95 Haitian nationals paroled before 12/31/95 Haitian national children who arrived and remained without parents Haitian national children who were orphaned after arrival; and Haitian children who were abandoned by their parents § 26.11: Adjustment of Status Under LIFE 1. A beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001, preserves eligibility to adjust status under INA § 245(i) 2. Payment of a $1,000 surcharge will be required with the adjustment application, regardless of the timing or basis of the eventual adjustment § 26.12: Adjustment of Status Under LIFE Legalization and LIFE Family Unity 1. Section 1104 of the LIFE Act and its amendments allow certain eligible aliens to apply for adjustment of status to lawful permanent resident status under a modified version of § 245A of the INA § 26.13: Adjustment of Certain Syrian Nationals 1. The president negotiated for the immigration of some Syrian Jews to the United States in asylee status rather than in refugee status § 26.14: Adjustment of Status of Approved VAWA Self-Petitioners 1. A VAWA self-petitioner who has an approved I-360 or who has a current priority date may file an application to adjust status on Form I-485 2. Grounds of inadmissibility
36
A VAWA self-petitioner may be exempt from the three-year and ten-year bars if she demonstrates a substantial connection between the abuse she suffered and her unlawful presence 3. Discretionary Waivers a. The attorney general may exercise discretion in waiving the following grounds of inadmissibility: i. having a communicable disease of public health significance ii. having committed a crime of moral turpitude iii. conviction of multiple offenses iv. simple possession of thirty grams or less of marijuana v. prostitution vi. involvement in serious criminal activity from the prosecution of which the noncitizen asserted immunity vii. fraudulently misrepresenting a material fact to procure an immigration benefit; and viii. involvement in the smuggling of an immediate family member 4. K Fiancée Visas a. A holder of a K fiancé visa may seek adjustment of status as a self-petitioner only if the abuser was the U.S. citizen sponsor whom the applicant married b. An applicant who did not marry the sponsor is not eligible to adjust as a self-applicant under VAWA IX. LABOR CERTIFICATION A. § 15.01: Introduction 1. As a safeguard for the American labor market, the INA conditions admissibility of certain immigrants on certification by the secretary of labor that there is a shortage of workers to perform the specified job and that the employment of the immigrant will not adversely affect the wages and working conditions of U.S. workers similarly employed 2. Getting a labor certification is usually the first of three steps needed for permanent residence status by second and third employment preference immigrants B. § 15.02: Individual Certifications: Basic Processing 1. Overview a. The process begins with the employer’s filing of the application on form ETA 750 and any supporting documents with the local office of the state employment service that has jurisdiction over the worksite b. Unless waived, the advertisement is placed in a publication approved by SESA, using preapproved text 2. The employer; representatives, agents, and attorneys a. By regulation, the application may only be filed by an employer, namely, a person or entity which has a location in the U.S. to which U.S. workers may be referred for employment and which proposes to employ a full-time worker at a place within the U.S., or its authorized representative or agent b. A representative is an employee whose position or legal status authorizes her to act for the employer in such matters c. Employment is permanent full-time work by an employer other than oneself d. For purposes of this definition, an investor is not an employee 3. The application and its contents a. The basic application form prescribed by the DOL is the application for alien employment certification, for ETA 750 b. Form ETA 750 has part A and part B i. Part A is the offer of employment ii. Part B is the statement of alien’s qualifications c. The application must include: i. A signed statement of the alien’s qualifications of part B ii. A description of the job offer and of the employer’s requirements for the job on part A d. Part A job requirements are: i. Education ii. Training iii. Experience iv. Special requirements e. An employer that recruits for the position may only reject U.S. applicants who do not meet minimum requirements, and can not reject them simply because the alien is more qualified 4. Employer’s supplementary certifications
a.
37
5.
6.
Employer’s supplementary certificates must state that: i. The employer has enough funds to pay the offered salary ii. The employer guarantees to pay the prevailing wage iii. The salary must be at least 95% of the prevailing wage iv. The wage offered is not based on commission, bonuses, or other incentives v. The employer is able to place the alien on payroll at the time of entry vi. The job offered does not involve unlawful discrimination vii. The job is not vacant because of a strike, lockout, or labor dispute viii. The job’s terms and conditions are fair and lawful; and ix. The job opportunity is open to qualified U.S. workers Dictionary of Occupational Titles and Specific Vocational Preparation (SVP) a. To determine whether the employer’s job requirements are reasonable, the DOL often refers to the dictionary of titles (DOT) b. The DOT contains descriptions of thousands of jobs, and assigns to each a code number and auxiliary profile data c. The Specific Vocational Preparation (SVP) scale represents the combination of education, training and experience that is appropriate for the job as it is described in the DOT d. The SVP scale is as follows: i. (9) over 10 years ii. (8) over 4 up to and including 10 years iii. (7) over 2 up to and including 4 years iv. (6) over 1 up to and including 2 years v. (5) over 6 months up to and including 1 year vi. (4) over 3 months up to and including 6 months vii. (3) over 30 days up to and including 3 months viii. (2) anything beyond short demonstration up to and including 30 days ix. (1) short demonstration only e. Under SVP, any education or experience requirement that exceeds the SVP for a specific occupation is an unduly restrictive requirement that has to be justified by the employer’s business necessity f. Whether a given job requires at least two years of experience can be critical to whether a visa number can be obtained under the employment based third (EB-3) Restrictive requirements and business necessity a. In general i. Because of the difficulty that employers encounter in matching their requirements to the generalized standard of the DOT, those requirements often fail to match the profile drawn by the DOL as normally required for the job b. Test for determining business necessity: Information industries i. Matter of information industries case sets the standard for deciding whether a requirement is unduly restrictive of justified by business necessity ii. The job requirement must bear a reasonable relationship to the occupation in the context of the employer’s business; and iii. Be essential to perform the job duties described by the employer iv. The rule since information industries is that if the correct job title and code have been selected, then the employer’s requirements within the SVP range are not excessive c. Foreign language requirements i. Decisions on language requirements since information industries are marginally instructive about what to expect in the future d. Live-in requirements i. The regulations require that a live-in requirement for a household worker be documented with evidence of business necessity ii. Whether there is a business necessity for a live-in worker, largely depends on the first prong of the information industries test-whether the live-in requirement is essential to perform the job duties as described by employer e. Jobs or job requirements established at or after the alien’s hire i. The DOL’s general administration letter no. 1-97 instructs that job requirements are prima facie restrictive if they did not exist before the alien was hired ii. Experience in a dissimilar position Experience gained by a particular employee while working for the petitioning employer, or a related entity, whether in the U.S. or overseas, has generally been regarded as an unacceptable requirement a.
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7.
8.
An exception arises where the experience was gained in a different position than the one being petitioned for iii. No longer feasible to train Another exception to the general rule prohibiting use of experience gained in the same position with the petitioning employer has been that it is no longer feasible to train a new worker who lacks the required experience Action by State employment service a. Determining whether labor certification is appropriate i. Upon receipt of the application, the local SESA office classifies the position and determines whether it qualifies as a schedule A occupation ii. Unacceptable applications include: Applications field by employers who are temporarily in the U.S. Applications by a non-corporate employer who is also the alien Applications in which the job duties will be performed totally outside the U.S., its territories or possessions Applications by an employer who has no location in the U.S. Applications for part-time employment Applications by diplomats, consular, and other such officials Applications for a job funded by a temporary grant; and Applications without a guaranteed wage iii. A position qualifies as permanent if the employer intends to employ the alien for one year or more b. Preliminary processing; Prevailing wage i. When the application is complete the SESA office screens the application for restrictive requirements ii. If the employer refuses to delete a restrictive requirement, the SESA asks for documentation of its business necessity iii. The SESA also calculates the prevailing ware, in conformity with established criteria, and gives the employer an opportunity to increase the wage offer if it is below the prevailing wage as calculated by the agency c. Advertising i. In general, the employer must advertise non-professional jobs in newspaper of general circulation for three consecutive days ii. Positions requiring an advanced degree and highly technical experience may have to be advertised in a professional journal iii. The general rule is that the position must be advertised in the medium most likely to yield responses d. Posting/Notice requirement i. The employer must document that it has given notice of the filing of the labor certification application to its bargaining representative, if any, in the occupational classification ii. The notice must also state: any person may provide documentary evidence bearing on the application to the local employment office or the regional certifying office of the DOL e. Failure to comply with SESA requests; 45-day rule i. The employer must comply with the SESA’s request for additional documents or information ii. If the employer does not comply within 45 days after the request, the SESA will return the application; an application re-filed under these circumstance will be assigned a new priority date f. Final SESA processing: Priority date i. Although the employer is asked at item 21 of form 750 to describe its efforts to recruit U.S. workers and the results of those efforts, the failure to advertise or otherwise recruit before filing the application ordinarily has no consequences Determination by certifying officer; Notice of findings a. The SESA transmits the application to the DOL’s regional certifying officer for certification or other action b. The citifying officer notifies the employer of his determination, sending a copy of the notice to the alien and to any attorney
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C.
D.
A certifying officer who proposes to deny a labor certification application must issue to the employer, with a copy to the alien, a notice of findings, setting forth the specific bases for denial d. A certifying officer may choose to reconsider a final denial if such request is made by the employer within 35 days after the issuance of a final denial 9. National office handling a. In most instances, it is the regional certifying officer who considers the application for certification b. The regional certifying officer may refer the application to national office in the categories of: i. Professional athletes and coaches and support personnel ii. Applications for aliens of exceptional ability 10. Appeal to board of alien labor certification appeals (BALCA) by request for review a. An administrative appeal from a denial is termed a request for review b. The review must be sent within 35 days after the date of the decision c. Although the request for review must be sent to the certifying officer, it is directed to a board of alien labor certification appeals (BALCA) in the DOL 11. EAJA attorney fees a. Awards of attorney’s fees under the equal access to justice act are not available to the prevailing party on appeal from a labor certification § 15.03: Reduction in Recruitment 1. Reduction in recruitment is the fast track to processing a labor certification under the system described in increasing efficiency in the permanent labor certification process 2. It presumes that the employer has followed a pattern of recruitment designed to engage U.S. workers, and is resorting to an application to bring a foreign worker only because its recruitment has failed 3. The successful request for reduction in recruitment involves an application that describes a job clearly, but without restrictive requirements § 15.04: Special handling of Certain Occupations 1. College and university teachers a. Applications for college teachers or aliens with exceptional ability in the performing arts require documentation showing competitive recruitment and a selection process that found the alien more qualified than U.S. applicants for the job b. This more qualified standard is limited to these two occupational groups c. To support a certification application for a college or university teaching position, the prospective employer has to document that it selected the alien through a competitive recruitment selection process d. To use this special handling procedure, the college or university must file the labor certification application within eighteen months after it makes the competitive selection 2. Persons in the performing arts claiming exceptional ability a. In applying for persons in this category, the employer must demonstrate not only the alien’s exceptional ability in the performing arts, but that the alien’s work experience during the past twelve months required, and his intended U.S. work will require, such exceptional ability b. Artists who require a labor certification must qualify for the certification under the special handling standard and procedure 3. Live-in household domestic service workers a. Household domestic-service worker cases are an endangered species b. As they do not ordinarily require two years of experience, they fall within the other worker tier of the EB third preference, for which numbers are backlogged by many years c. The contract of live-in household worker must specify: i. Wages to be paid ii. Hours of employment per week iii. That the alien is free to leave the premises when off shift iv. That the alien will reside on employer’s premises v. Details of duties to be performed vi. Amount of any money advanced vii. That a duplicate contract has been given to the alien; and viii. Any other terms and conditions 4. Physicians or surgeons who are graduates of foreign medical schools a. There are special requirements for physicians or surgeons who are graduates of foreign medical schools b. If their job duties will involve patient care, the labor certification regulations require proof that they have passed parts I and II of the NBMEE exams
c.
40
E.
F.
A physician or surgeon of international renown is not only eligible for individual labor certification without meeting the examination or licensing requirements described, but will normally be eligible as well for the schedule A group II labor certification available to aliens of exceptional ability in the sciences or arts d. The examination and licensing requirements for labor certification do not apply to physicians whose job duties are free of patient care 5. Alien sheepherders a. An application for an alien sheepherder must show that the alien has been employed legally as a nonimmigrant sheepherder for at least thirty-three of the preceding thirty-six months, and must be accompanied by signed letters from U.S. employers certifying to such employment § 15.05: Schedule “A” certifications 1. Pre-certified occupations a. In general i. By regulation, the DOL as pre-certified persons qualified in specific occupations or with certain skills in schedule A ii. Persons who fit the criteria of schedule A, benefit from a blanket determination by the administrator, U.S. employment service, that they are labor certified b. Group I of schedule A i. Persons who will be employed as physical therapists ii. Persons who will be employed as professional nurses c. Group II of schedule A i. This group includes aliens of exceptional ability in the sciences or arts including college and university teachers of exceptional ability ii. The one-year experience requirement applies to aliens of exceptional ability in the sciences or arts, as well as to college or university teachers 2. Procedure for obtaining schedule A labor certification a. General requirements i. Eligibility for schedule A classification is determined by the INS in connection with an immigrant visa petition under the second and third employment-based preferences b. Additional documentation i. Physical therapists Aliens seeking labor certification as a physical therapist apply under group I of schedule A ii. Nurses Application for labor certification as a professional nurse can be made only under group I of schedule A, and must include documentary proof that the applicant has passed the relevant examinations iii. Group II of schedule A Aliens seeking labor certifications under group II of schedule A must submit evidence of their current acclaim and international recognition, and evidence that their work experience during the past year This category of schedule A emphasizes international recognition for outstanding achievements and excellence Physicians and surgeons are eligible under the group II section of schedule A c. INS office determinations i. Upon receipt of an application for a schedule A certification the immigration officer determines whether the alien is qualified for such a certification, and whether she intends to pursue the schedule A occupation ii. The schedule A determination of INS is final and conclusive, and there is no provision for resort to administrative review under DOL review procedures § 15.06: Schedule “B” Non-certifications 1. Schedule B occupations a. Schedule B includes a list of occupations for which a labor certification will not be issued without a special waiver b. These occupations, according to DOL, require little or no education or experience, and offer opportunities as entry jobs to high school graduates and other U.S. workers seeking their first employment 2. Waivers
c.
41
The DOL regulations do permit labor certification for an occupation on schedule B upon request for a waiver submitted by an interested employer b. This waiver procedure is intended for isolated instances where U.S. workers are not available at the particular place of employment 3. Household domestic service workers and schedule B a. Schedule B issues often arise in the context of household domestic workers b. Filing for such workers are severely depressed as a result of the backlog of visa numbers for unskilled workers X. REMOVAL OF ALIENS A. § 16A.01: In General 1. Overview a. The IIRAIRA revised the process by which aliens are expelled from the U.S. b. For cases starting on or after April 1, 97, there is a single removal proceeding, rather than separate” exclusion” and deportation proceedings, as provided under prior law 2. General concepts a. IIRAIRA purports to eliminate the concept of entry in the INA and replace it with the concept of admission b. The Fleuti doctrine held that brief, casual, and innocent, excursions outside the U.S. that were not meaningfully interruptive of permanent residence do not constitute an entry for immigration purposes c. The apparent purpose of attempting to eliminate the concept of entry was to create one uniform procedure for removing aliens, rather than the two-track deportation and exclusion proceedings d. Removable means: i. in the case of an alien not admitted to the U.S., that the alien is inadmissible under INA 212 ; or ii. in the case of an alien admitted to the U.S., that the alien is deportable under INA 237 B. § 16A.02: Initiation of Removal Proceedings 1. Section 304 of the IIRAIRA creates removal proceedings, in which immigration judges determine whether aliens are inadmissible or deportable 2. INA 239(a), added by IIRAIRA, does not mandate that the notice to appear be served by certified mail or that it be in Spanish or any other language 3. To allow respondents an opportunity to obtain counsel, IIRAIRA provides that the removal hearing shall not be scheduled earlier than 10 days after service of the notice to appear 4. IIRAIRA also provides that service by mail is sufficient if there is proof of attempted delivery to the last address provided by the alien C. § 16A.03: Removal Proceedings 1. New grounds of deportability a. IIRAIRA has added several new grounds of deportability, and substantially revised others already in the statute i. False claim to U.S. citizenship IIRAIRA § 344(b) adds at INA § 237(a)(3)(D) a ground of deportability similar to the new round of inadmissibility for an alien who falsely claims to be a U.S. citizen for any purpose or benefit under federal or sate law ii. Voting in a U.S. election A new deportation ground that corresponds to the inadmissibility ground for aliens who vote in an election in violation of any federal, state, or local requirement, was added by IIRAIRA § 347(b) to INA § 237(a)(6) iii. Crimes of domestic violence, stalking or child abuse IIRAIRA § 350 adds at INA § 237(a)(2)(E) a ground of deportation for aliens convicted, at any time after entry, of a crime of domestic violence; stalking; or child abuse, child neglect, or child abandonment iv. Conviction for high speed flight Added at INA § 237(a)(2)(A)(iv) by IIRAIRA § 108 is a new ground of deportation for aliens who are convicted of the new crime of high speed flight from an immigration checkpoint b. Waivers and other provisions affecting deportability i. Waiver of civil document fraud order Under INA § 237(a)(3)(C), an alien who is the subject of a final order under INA § 274C, finding document fraud, is also deportable
a.
42
2.
IIRAIRA adds to that provision authority for the attorney general to waive the deportability for permanent residents who committed the fraud solely to assist, aid, or support the alien’s spouse or child ii. Alien smuggling waiver INA § 237(a)(1)(E) makes alien smuggling deportable but allows a waiver to a LPR if the smuggling was done solely to aid a spouse, parent, son or daughter iii. Prohibition against adverse determinations based on allegations of batterers IIRAIRA § 384 bars the attorney general from making adverse determinations of admissibility or deportability based solely on information received from specified individuals iv. Waivers for immigrants convicted of crimes IIRAIRA § 348 amends INA § 212(h) to limit the waiver it provides for certain criminal grounds of inadmissibility v. Cancellation of removal IIRAIRA has completely revamped the two major forms of relief from deportation, one of which, section 212(c) relief, was initially designed exclusively as a remedy for exclusion This and suspension of deportation, an now substantially amended and termed cancellation of removal, are now available in removal proceedings to both arriving and other aliens vi. Expanded definition of aggravated felony IIRAIRA § 321 has amended the definition of aggravated felony at INA § 101(a)(43) in various respects, largely by adding some offenses, like rape and sexual abuse of a minor, and lowering the sentencing thresholds of other offenses vii. Definition of conviction and term of imprisonment Another provision that can seriously affect deportability is a new statutory definition at INA § 101(a)(41(A), added by IIRAIRA § 322 The new definition broadens the meaning of conviction and includes the withholding of adjudication of guilt, where: (1) a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or has admitted enough facts to warrant a finding of guilt; and (2) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty Burdens of proof a. INS burden to prove alienage i. The INS still is required to prove alienage by clear, unequivocal and convincing evidence ii. Once the INS establishes that the court has jurisdiction, the relative burdens of proof depends upon whether the alien is an applicant for admission or has been admitted iii. If an alien is an applicant for admission, she has the burden of establishing that she is clearly and beyond doubt entitled to be admitted and is not inadmissible under INA 212 b. Proof beyond doubt for applicants for admission i. Requiring an alien to establish admissibility beyond doubt raises constitutional questions ii. Beyond doubt is a higher standard of proof than that required for even the most serious criminal convictions, which is beyond a reasonable doubt iii. The law imposes a higher standard of proof on aliens than the government bears in criminal proceedings c. Lower burden of proof for aliens who are not applicants for admission i. If the alien is not an applicant for admission, he has the burden of proving, by clear and convincing evidence, that he is lawfully present in the United States pursuant to a prior admission ii. Unlawful presence is defined as either being present after the expiration of the period of authorized stay or being present in the United States without having been admitted or paroled d. The burden shifts to the INS to establish the alien is deportable i. If the alien establishes that she is lawfully present pursuant to a prior admission, the burden shifts to the INS
43
3.
4.
5.
6.
The INS must affirmatively establish, by clear and convincing evidence, that the alien is deportable Decision of the Immigration Judge a. The immigration judge’s determination whether an alien is removable shall be based only on the evidence produced at the hearing b. If the IJ decides that the alien is deportable, the IJ must inform her of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties c. The law does not explain what the result would be if the IJ failed to give such advice Motions to reopen and reconsider a. In general i. In July 1996, new regulations published by the Executive Office for Immigration Review took effect governing motions to reopen deportation cases and reconsider deportation orders b. Motions to reopen i. A motion to reopen a removal or deportation case can be filed if there are new facts or law or intervening circumstances that might change the result in the case ii. In general, the motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal iii. There is no time limit on the respondent’s filing a motion to reopen a final administrative removal order if all the following conditions are met: The basis of the motion is to apply for asylum, under INA § 208, or restriction on removal under INA § 241 The motion is based on changed country conditions; and If such evidence is material and was not available and would not have been discovered or presented at the previous hearing c. Motions to reconsider i. Motions to reconsider removal or deportation orders may be filed to assert that the IJ or BIA made errors of law or fact in the previous order ii. A respondent may file only one motion to reconsider a decision that she is removable iii. The motion must be filed within 30 days of a final administrative order of removal d. In absentia orders of removal i. A removal order entered after the respondent’s failure to appear at a removal hearing can be rescinded only upon the filing of a motion to reopen ii. If the motion demonstrates that the respondent did not receive proper notice of the hearing, the motion to reopen can be filed at any time e. Stays of removal orders pending motions to reopen and reconsider i. With one exception, filing a motion to reopen or reconsider does not automatically stay a removal or deportation order ii. That exception is filing a motion to reopen a removal order entered in absentia iii. Filing a motion to reopen an in absentia removal order stays the removal of the respondent pending disposition of the motion by the immigration judge Consequences of failing to appear at a removal hearing a. IIRAIRA mostly retained the language of former INA § 242B(c) concerning the consequences of failure to appear at a proceeding b. However, under IIRAIRA, an alien who fails to appear for a removal hearing is ineligible for specified relief from removal for 10 years c. The law also adds a ground of inadmissibility that the alien failed or refused to attend or remain in attendance at a removal hearing without reasonable cause d. Such an alien is inadmissible for five years from departure or removal e. A removal order entered in absentia may be rescinded upon a motion to reopen filed within 180 days after the removal order if there were exceptional circumstances for the failure to appear i. However, if the alien did not receive the required notices, there is no time limit for the motion to reopen ii. Furthermore, there is no automatic stay of an in absentia removal order pending appeal at the BIA f. The review is limited to determine: i. the validity of the notice provided to the alien; ii. the reasons for the alien’s failure to attend the proceeding; and iii. whether the alien is removable Proof of conviction
ii.
44
The law now enumerates with unusual specificity the documents and records that may be used to prove a criminal conviction for purposes of removal proceedings based on criminal activities b. Coupled with the expanded definition of conviction, this broad list of approved documents makes it significantly easier for the INS to prove a conviction 7. Detention and removal of aliens ordered removed a. IIRAIRA § 305 requires the service to remove the alien within 90 days of an administratively or judicially final removal order or when the alien is released from criminal custody, whichever is later b. With certain exceptions, detention is mandatory during the removal period c. An alien not removed within 90 day removal period is subject to release on supervision, with enumerated restrictions d. Aliens may not be removed until released from imprisonment under criminal sentences 8. Alien terrorist removal procedures a. IIRAIRA § 302(a) allows the attorney general to forgo a hearing altogether, on finding tat the alien is excludable on security or terrorist grounds based on confidential information that she cannot disclose for security reasons b. AEDPA § 401(b) limits judicial review of an order under INA § 235(c) excluding an alien as a terrorist to the U.S. court of appeals for the DC Circuit c. AEDPA § 502 establishes a removal court consisting of five U.S. district court judges chosen by the chief justice of the United States D. § 16A.04: Expedited Removal 1. Expedited removal is the term coined by IIRAIRA for the truncated procedures by which immigration officers may summarily determine that an alien is not admissible to the U.S. 2. The officers must order the alien removed from the U.S. without further hearing or review 3. However, if the alien indicates either a fear of persecution or an intention to apply for asylum under INA § 208, the officer must refer the alien for an asylum interview E. § 16A.05: Expedited Removal of Aliens Convicted of Crimes 1. INA requires INS to expedite the removal of aliens convicted of crimes 2. For aliens convicted of aggravated felonies, removal proceedings must be initiated, and to the extent possible, completed including any administrative appeals, before the alien’s release from criminal custody 3. Aliens who may be subject to expedited removal include those convicted of: a. Aggravated felonies; b. Controlled substances; c. Firearms offenses; d. Certain miscellaneous crimes; or e. Two crimes involving moral turpitude F. § 16A.06: Administrative Removal of Certain Aliens 1. Since 1994, the INA has authorized the INS to determine administratively that certain aliens are deportable, without having to submit the question to an immigration judge 2. Expedited administrative removal applies to aliens convicted of aggravated felonies who are: a. Not lawfully admitted for permanent residence at the time removal proceedings began; or b. Conditional permanent residents under INA §216 at the time removal proceedings began 3. An alien in administrative deportation proceedings is not entitled to a deportation hearing before an immigration judge but is entitled to: a. Reasonable notice of the charges and of her opportunity to inspect the evidence and rebut the charges; b. Be represented by counsel, at no expense to the government; c. A determination for the record that she is in fact the alien named in the notice; and d. A record of the proceedings for judicial review 4. The INS must wait 14 days after the administrative order of deportation or removal is entered to execute that order, so that the person ordered deported or removed may apply for judicial review 5. Who is your daddy now? G. § 16A.07: Effective Dates 1. With certain exceptions, the new rules apply and are effective on April 1, 1997 2. However, the attorney general has discretion the circumvent the effective dates XI. DEPORTATION A. § 17.01: Introduction 1. Deportation proceedings have been largely replaced by removal proceedings pursuant to the IIRAIRA of 1996, but a significant number of old deportation cases remain in the pipeline or may be reopened or re-examined upon judicial review
a.
45
B.
C.
An alien is subject to deportation only if he or she has entered the U.S. An alien can be deported on the ground that he or she was excludable at time of entry or adjustment of status § 17.02: Governing Principles 1. Generally a. Any non-citizen is subject to expulsion from the U.S. for any reason specified in § 241(a) of the act b. The new law prescribes five classes of aliens who are deportable, with numerous grounds provided under those classes 2. Grounds of deportation a. The first ground of deportation is that the alien was excludable at entry b. Entry into the U.S., for purposes of INA § 101(a)(13), requires the following: i. A crossing into the territorial limits of the U.S. ii. Either inspection and admission or intentional evasion of inspection at the nearest inspection point; and iii. Freedom from official restraint c. There are four other grounds of deportation each with its own sub-grounds: i. The second ground of deportation is that the alien was excludable at time of entry or of adjustment of status or violates status; ii. The third ground of deportation is alien’s failure to register and falsification of documents; iii. The fourth ground of deportation is security and related grounds; and iv. The fifth ground of deportation is public charge ground § 17.03: Challenges to Deportation Power 1. Generally a. The due process clause of the fifth amendment of the U.S. constitution applies to deportation proceedings b. For aliens this generally means that an alien is entitled to a fair hearing 2. Due Process a. Adequate notice i. Section 242(b) of the act requires that the alien be given reasonable notice of the nature of the charges and of the time and place of the hearing ii. The requirement of notice becomes especially important under the immigration act of 1990, which includes a provision for in absentia hearings b. Impartial judge i. Under § 242(b) of the act, the deportation proceeding is conducted by an immigration judge ii. Neither the act nor the regulations specifically provide a procedure for challenging the qualifications or alleged bias of an immigration judge c. Right to counsel i. While neither the requirements of due process nor the act require the appointment of counsel for the alien at government expense, the alien does have the privilege to be represented by counsel under § 292 of the act d. Opportunity to present evidence i. Under § 242(b) of the act the alien must be given a reasonable opportunity to present evidence in his or her behalf e. Right to confront witnesses i. Under § 242(b) of the act the respondent must have a reasonable opportunity to examine the evidence against him or her and to cross-examine witnesses presented by the government ii. THE SINGLE MOST DAMAGING PROCEDURE AT DEPORTATION HEARINGS WHICH HAS BEEN SUSTAINED AND APPEARS TO THWART THIS DUE PROCESS REQUIREMENT IS THE ADMISSIBILITY OF HEARSAY f. Egregious conduct by INS officers i. Evidence of alienage or deportability which has been obtained by the INS officers through egregious conduct which violates due process is suppressible g. Right to interpreter i. While neither the statue nor the regulations provide an absolute right to an interpreter at deportation hearings, it is apparent that minimal standards of fairness require that an interpreter be provided for the non-English speaking respondent who is willing to testify 3. Ex Post Facto
a. b.
46
D.
E.
From time to time, congress has passed deportation provisions which cover past activities, and they are held constitutional 4. Bill of attainder a. Another constitutionally prohibited form of retroactive legislation, a bill of attainder, is held constitutional in deportation proceedings 5. Denial of bail a. The government has the authority to hold an alien without bond if he or she poses either a poor bail or national security risk 6. Eight Amendment a. In general, the claim that deportation constitutes a cruel and unusual punishment in violation of the 8th amendment has met with no success 7. Equal protection a. In general, equal protection challenges that some categories of deportees have been dealt with more harshly than others have been unsuccessful 8. Separation of constitutional powers a. Under the constitutional concept of separation of powers, the supreme court has resolved disputes between branches of the federal government which limit the activities of each branch (INS v. Chadha) 9. Citizenship a. The deportation authority and the grounds of deportation under § 241(a) of the act apply only to aliens, and thus citizenship is a complete defense 10. Non-citizen nationals a. Non-citizen nationals are not aliens and consequently they are not subject to the deportation statute b. The only non-citizen nationals of the U.S. are persons born in America Samoa or the Swains Islands § 17.04: Classes Included 1. Aliens a. The depuration grounds found in § 241(a) of the act apply to aliens b. An alien is any person who is not a citizen or national of the U.S. 2. Former Citizens or Nationals of the United States a. A person who was a citizen of the United States and who has lost citizenship through expatriation or denaturalization is an alien b. A non-citizen national of the U.S. who loses that status also becomes subject to deportation 3. Diplomats a. Ambassadors, consular officials, public ministers, representatives to the UN, their staff and families are not subject to the deportation power of congress b. Only the president has analogous authority over such diplomats § 17.05: Grounds of Deportation 1. Deportable aliens a. Illegal entry i. An alien who has entered the U.S. in an irregular fashion is amenable to deportation without having violated any other provision of the immigration ii. The government has the burden of establishing alienage by clear, unequivocal and convincing evidence b. Fraud or misrepresentation i. Any alien who obtains a visa by a material deception or fraud or seeks to enter the U.S. by willfully misrepresenting a material fact or by fraud is amenable to expulsion c. Fraudulent marriage i. Any alien who either contracts to marry or marries a U.S. citizen to procure by fraud his or her admittance into the U.S. is deportable ii. The marriage fraud amendments also barred aliens who married during exclusion or deportation proceedings from adjusting their status or seeking immigrant visas on the basis of a marriage entered into while in administrative or judicial proceedings d. Fraudulent claim of citizenship i. An alien who enters the U.S. on a fraudulent claim of citizenship is subject to deportation on the grounds that the entry was without a proper immigration visa, and the entry was without inspection e. Criminal activities prior to entry i. An alien who has been convicted of a crime of moral turpitude before entry into the U.S. is amenable to expulsion ii. Crimes involving moral turpitude include:
a.
47
2.
3.
4.
5.
Crimes against the person; Sexual offenses; Crimes against property; Crimes against government; Crimes involving fraud; Violations of regulatory laws; and Weapons offenses f. Subversive activities i. An alien who was formerly a member of or affiliated with the communist party or certain other subversive organizations before his or her entry into the U.S. is deportable g. Improper re-entry after deportation i. Any alien who reenters the U.S. within five years of being deported is subject to expulsion, unless the attorney general has granted him permission h. Draft evaders Any alien who departed the U.S. or remained outside the U.S. to avoid training or service in the armed forces in a time of war is subject to deportation i. Mental defects and conditions Aliens who are determined to have a mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others is deportable j. Entry without proper documents i. If an alien does not have the documents, or if the documents are fraudulent, he or she is subject to deportation k. Entry without inspection i. Any alien who enters the U.S. without inspection or at any time or place other than as designated by the attorney general is subject to expulsion False statements a. An alien who has been convicted of fraud or who has obtained a visa by a material deception or fraud is amenable to deportation Violations of conditions of temporary entry a. A nonimmigrant who violates the conditions under which he was allowed to enter by staying beyond the allotted period of sojourn, by working or in any other fashion, can be expelled Security and Related Grounds a. Criminal activities i. Any alien who is convicted of a crime of moral turpitude committed within five years of entry and sentenced to confinement for a year or more, or is convicted of at least two crimes of moral turpitude not arising from a single scheme of criminal conduct any time after entry, is subject to expulsion ii. The immigration act of 1990 bars aggravated felons from many provisions of the INA Amelioration of deportation a. Pardon i. Any alien who has been convicted of a crime or crimes involving moral turpitude and who has been granted a full and unconditional pardon by the president or by the governor is not amenable to deportation b. Judicial recommendation against deportation i. Section 505 of the immigration act of 1990 abolished the judicial recommendation against deportation as of November 29, 1990 c. Juvenile or petty offenses i. If an alien was convicted abroad of a single crime while under the age of 18 and more than five years prior to his application for a visa or other documentation and the date of admission to the U.S., he is not amenable to deportation d. Waivers i. In the case of an alien who is subject to deportation based on a determination of excludability at entry on criminal grounds, the attorney general has the authority to waive the grounds of excludability if the alien is a close relative of a U.S. citizen or permanent resident e. Other amelioration i. The motion to dismiss in the interests of justice
48
F.
The motion to dismiss in the interest of justice is available in most states Adjournment in contemplation of dismissal If the alien has no prior record and a generally sympathetic case, the prosecutor may agree to an adjournment in contemplation of dismissal if such a procedure is available in the state in question iii. Deferred prosecution A deferred prosecution is a remedy that is rarely granted and is used only in the most sympathetic cases iv. Post-conviction relief A writ of error coram nobis is a remedy that also is very rarely granted because the petitioner has the heavy burden of showing new facts that are so significant that they warrant overturning the conviction It may be granted when the defendant either had no knowledge of the immigration consequences or was ineffectively warned or counseled of such consequences by his criminal defense attorney v. Certificate of relief from disabilities A certificate of relief from disabilities, which ensures that a conviction does not trigger immigration consequences, can be an effective statutory remedy vi. Expungement When a conviction is expunged, the conviction is erased and the offender is restored to his status before the adjudication occurred 6. Narcotics addicts and controlled substances violators a. Any alien who becomes a narcotic drug addict or abuser or is convicted of a violation of or a conspiracy to violate any law or regulation relating to a controlled substance after entry is amenable to deportation 7. Aliens involved in prostitution a. The 1990 act eliminated the former provision that any alien who engaged in any aspect of prostitution after entry was subject to expulsion b. However, aliens can still be excluded under INA § 212(a) if they engage in prostitution or commercialized vice c. Aliens can obtain a waiver of exclusion for prostitution under INA 212(h) in the discretion of the attorney general 8. Smugglers of aliens a. Any alien who, at or prior to any entry into the U.S. or within five years after any entry, shall have knowingly helped, induced, assisted, abetted or encouraged any other alien to enter or to attempt to enter the U.S. illegally is amenable to deportation 9. Aliens convicted of fraud a. Aliens who are convicted of fraud in alien registration, for violation of the foreign agents registration act, and for fraud in obtaining visas, permits or other immigration documents thereby become deportable 10. Public charge a. Any alien who in the opinion of the attorney general has become a public charge within five years of entry form causes not affirmatively shown to have arisen after entry is subject to expulsion 11. Termination of conditional status a. Aliens who received a conditional permanent residence status as spouses, sons, and daughters of U.S. citizens or permanent residents and whose conditional status is terminated become deportable b. The alien is entitled to review of the termination in a deportation proceeding brought against him 12. Failure to maintain employment a. Any alien who obtains status as an alien lawfully admitted for temporary residence as a special agricultural worker and violates that status is deportable § 17.06: Specific Procedures 1. Preliminary investigation a. Powers of officers i. Immigration officers may interrogate any alien or person believed to be an alien concerning his or her right to remain in the U.S. ii. The prerequisite is a reasonable suspicion of alienage and no warrant is needed iii. Searches are more intrusive than investigative stops and INS powers are thus more restricted ii.
49
Procedure for limiting i. The exclusionary rule does not apply to a deportation proceeding, which the courts have characterized as a civil action ii. Motions to suppress evidence obtained illegally, however, may be granted where fifth amendment fairness issues are raised c. Arguments for limiting i. Where aliens make statements under stress, coercion or inducement, admission of those statements into evidence should be challenged 2. Deportation proceedings a. Institution of order to show cause i. Deportation proceedings are instituted by proper service of an I-221/221S order to show cause; arrest is not required to initiate the deportaion procedure ii. The order is issued by the district drector of the INS upon receipt of an I-265 from the investigations unit showing a prima facie case of deportablity iii. Aliens in deportation proceedings must now be provided with a list of pro bono counsel b. Preliminary applications and motions i. Motions may be made orally or in writing, formally or informally 3. Withholding and canceling deportation proceedings a. Voluntary departure i. Where the alien has a pending visa application or a poor immigration or a criminal record and few equities, it may be advantageous to waive rights to relief in agreed exchange for voluntary departure status ii. The alien thus avoids the bar to re-entry set up by deportation and the INS avoids the hearing iii. An alien convicted of an aggravated felony is precluded from receiving a grant of voluntary departure b. Deferment because of pending applications i. Naturalization can not be considered where deportation is pending ii. Deportation many also be deferred or cancelled to await the outcome of a collateral claim for immigration benefits c. Aliens subject to military service i. If the alien entered the U.S. armed forces while in a legal status, even if later found amenable to deportation, no action will be taken until he is discharged from service d. Aliens requesting asylum i. Aliens in the U.S. who have a well-founded fear of persecution in their countries of origin who meet the definition of a refugee may apply for asylum e. Deferred action cases i. To ameliorate a harsh and unjust outcome, a regional commissioner of the INS, at the request district director, may decline to institute proceedings, terminate proceedings or decline to execute a final order of deportation f. Waiver of deportation i. Permanent residents who do not meet the requirements for suspension of deportation because of the recent commission of a crime, may still be eligible for discretionary relief in the form of a waiver of deportation g. Suspension of deportation i. Deportation may be suspended and status adjusted to that of lawful permanent residence where the applicant can demonstrate seven years of continuous residence in the U.S., during which he has shown good moral character ii. Even those deportable for crimes of moral turpitude may request suspension if show ten years of continuous residence and good moral character XII. OTHER DISCRETIONARY REMEDIES A. § 20.01: Generally 1. The grounds of exclusion and deportation have become increasingly severe over the years, listing a wide range of activities and conditions as a basis for refusing aliens admission to the U.S., and for expelling those already here 2. There are several forms of relief from removal that are so important as affirmative means of obtaining lawful permanent residence B. § 20.02: Voluntary Departure 1. In general a. The IIRAIRA significantly restricts the opportunity of aliens to leave the U.S. under a grant of voluntary departure
b.
50
C.
IIRAIRA authorizes voluntary departure before the conclusion of removal proceedings and at the conclusion of removal proceedings 2. Voluntary departure before the conclusion of removal proceedings a. In lieu of removal proceedings, or before the conclusion of removal proceedings, an alien can be permitted to depart voluntarily if he is not deportable under INA b. Permission to depart voluntarily under this subsection is valid for up to 120 days, or as further extended by the INS for medical reasons c. Voluntary departure under this provision is not available to aliens arriving in the U.S. against who removal proceedings are or would be initiated at the time of their arrival d. There is no restriction on judicial review of denials of voluntary departure before the conclusion of removal proceedings 3. Voluntary departure at the conclusion of removal proceedings a. It is significantly more difficult to obtain voluntary departure at the conclusion of removal proceedings then before they end b. The immigration judge may permit the alien to depart voluntarily only if; i. The alien has been physically present in the U.S. for one year ii. Five years of good moral character iii. The alien is not deportable under aggravated felony crimes iv. The alien has money to buy ticket v. The alien was not granted a prior voluntary departure 4. Restrictions, limitations, and penalties related to voluntary departure a. There are civil monetary penalties for failing to depart voluntarily within the time period specified b. A person who fails to depart voluntarily as ordered is ineligible for voluntary departure and other relief from deportation for 10 years § 20.03: Cancellation of Removal; NACARA 1. In general a. IIRAIRA has replaced the suspension of deportation and cancellation of removal b. The new law bars many people from applying for the relief and imposes tougher requirements on those who are not statutorily barred 2. § 212(c) cancellation or removal-INA § 240A(a) a. IIRAIRA repealed INA § 212(c), effective April 1, 1997 b. The new law gives the attorney general the discretion to cancel removal for an inadmissible alien who establish; i. Five years of lawful permanent residence ii. Seven years of continuous residence iii. No conviction for aggravated felonies 3. Suspension; cancellation of removal-INA § 240A(b)(1) a. Under INA 240A(b), the attorney general may cancel removal of an inadmissible or deportable alien who establishes: i. Continuous physical present for 10 years ii. Good moral character for 10 years iii. No conviction under INA 212; and iv. Exceptional hardship to the alien’s U.S. citizen spouse, child, or parent 4. VAWA cancellation of removal improvements a. Requirements for qualifying for VAWA cancellation of removal i. The applicant was battered or subjected to extreme cruelty by his U.S. citizen spouse or parent; or ii. The applicant is the parent of child who was battered by the citizen; and iii. Three years of continuous physical presence iv. Three years of good moral character v. Not inadmissible under INA 212(a)(2) or (3) vi. Not deportable under INA 237(a)(2) vii. Extreme hardship to the applicant, child, or parent 5. Annual caps on suspension of deportation and cancellation of removal a. Three separate provisions in IIRAIRA purport to impose an annual limit on the number of suspension of deportation and cancellation of removal and adjustment cases b. The average number is around 4,000 per year 6. Rules regarding physical presence and continuous residence a. In general i. Seven years of continuous residence is required for INA 240A(a) cancellation ii. Ten years of physical presence is required for INA 240A(b)(1) cancellation
b.
51
D.
E.
F.
XIII. A.
iii. Three years of physical presence is required for battered spouse or child cancellation under INA 240A(b)(2) b. Notices to appear i. Once an alien is served with a notice to appear that was issued and served in compliance with INA 239(a), her physical presence and continuous residence periods end ii. This prevents an alien from accruing time towards cancellation while her removal case is pending c. Commission of an offense i. The second type of occurrence that cuts off the accrual of time in continuous residence and physical presence is when the alien commits an offense referred to in INA 212(a)(2) that makes him inadmissible or removable 7. Additional restrictions and limitations on cancellation of removal a. Cancellation is not available to anyone whose removal was previously canceled or whose deportation was suspended under INA 244(a), or who was granted 212(c) relief b. It also is unavailable for ten years to someone who failed to depart under a grant of voluntary departure under INA 240B § 20.04: Withdrawal of Application for Admission 1. In general a. An alien applying for admission may, in the discretion of the attorney general and at any time, be permitted to withdraw the application for admission and depart immediately from the U.S. 2. Practice and criteria a. INS inspectors have long followed the practice of permitting some aliens of doubtful admissibility to withdraw their so-called application for admission b. The condition of withdrawal is immediate departure, usually on the next plane 3. Under IIRAIRA a. Codified under IIRAIRA, the practice of withdrawal is supposed to remain unchanged b. INA 235(a)(4) permits an alien to withdraw the application for admission at any time and depart immediately, but only with the permission of the attorney general 4. Caveat and conclusions a. Withdrawal of the application for admission is seldom without consequences to the alien b. It automatically results in revocation of any nonimmigrant visa under which the alien sought admission c. The danger that cancellation of the visa will result in a practical bar to a visa in the future may be so great that the alien should try to resolve the issue of admissibility at the port of entry, if a removal hearing is available § 20.05: Deferred Action Cases 1. In general a. Deferred action constitutes an act of choice which allows the district director to give some cases low priority 2. Specific procedures a. The deferred action program is designed as an internal arrangement for the exercise of prospective discretion, without any provision for formal applications or procedures 3. Determination of the case a. The determination by the service to place a case in deferred action status may occur at any stage of the proceedings 4. Post-determination considerations a. The operation instructions state that the grant of deferred action status is an act of administrative choice, and in o way an entitlement § 20.06: Private Relief Bills 1. Introduction a. A private bill may be the last resort of an alien threatened with deportation 2. Specific procedures a. A lawyer seeking a private bill for his client must communicate his request to a member of congress b. The request for the private bill may be addressed either to a senator or a representative EMPLOYMENT § 23.01: Introduction 1. In General; Preemption a. Under provisions introduced by the Immigration Reform and Control Act of 1986, certain hiring practices for employment in the United States are prohibited
52
B.
C.
Employers must require documentation of identity and work authorization of all those hired, referred or recruited, and must complete and retain a designated form I-9 with details of the documents and certain attestations by the employee and employer c. The purpose of employer sanctions is to reduce job opportunities for unauthorized aliens and thereby discourage them from entering the United States illegally or overstaying their nonimmigrant status 2. Important Concepts: Hire and Employment; Independent Contracting, Casual Hire Distinguished; Recruit and Refer for a Fee; Unauthorized Alien and Employment Authorization a. The INS regulations define hire as the actual commencement of employment of an employee for wages or other remuneration b. The term employee is defined in the INS regulations as one who provides services or labor for an employer for wages or other remuneration c. An independent contractor is defined to include individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results d. Employment agencies and search firms who refer or recruit for a fee are subject to the corresponding bar against the referral or recruitment of aliens knowing they are unauthorized for the employment e. Colleges that charge only a nominal administrative fee to companies for setting up interviews on campus could better argue that they do not refer for a fee 3. A Person or Other Entity a. The INS regulations define person as an individual or an organization, and entity as any legal entity, including but not limited to, a corporation, partnership, joint venture, governmental body, agency, proprietorship, or association 4. Unauthorized Alien; Employment Authorization a. The INS define unauthorized alien with respect to employment as an alien not admitted for permanent residence, or authorized to be so employed by the attorney general b. The INS regulations set out those classes of aliens who may have employment authorization, under these three headings: i. aliens who may be employed generally as an incident to status; ii. aliens who may work for a specific employer as an incident to status; and iii. aliens who must apply for employment authorization to the attorney general c. Those in the first category include lawful permanent residents, conditional permanent residents, refugees, refugee parolees, asylees, and aliens granted withholding of deportation d. Those in the second category include aliens in the nonimmigrant classifications like H-1B temporary workers and F-1 students e. Those in the third category comprise other aliens who may be given work authorization on request for an EAD, though it is not an incident of their status f. The EAD is valid for the period it specifies, and there is no appeal from a denial of the application § 23.02: The Prohibition Against Knowingly Hiring, Referring, or Recruiting An Unauthorized Alien 1. In General; Actual or Constructive knowledge a. To reduce the incentive for noncitizens to infiltrate our border or overstay a nonimmigrant visa, the statute seeks to discourage their employment by making it unlawful for any individual or entity to hire, refer, or recruit them for a fee, knowing they are unauthorized for the employment b. The knowledge required is the knowledge which may fairly be inferred from facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition 2. The Defense of Good-Faith Verification a. The statute itself provides as an affirmative defense to a knowing charge, good faith compliance with the verification requirements 3. Penalties a. On determining that an employer, referrer, or recruiter for a fee, has violated the knowing provisions, an administrative, and administrative law judge must order that party to cease and desist, impose a civil fine ranging from $250 to $10,000 for each unauthorized alien, and take other appropriate action § 23.03: Verification Requirements 1. In General: The I-9 a. Ordinarily, verification is done only once, although it may have to be redone or updated if eligibility expires or the individual is rehired b. The verification system, which turns on the Form I-9, involves several components:
b.
53
2.
3.
4.
5.
6.
7.
8.
an attestation by the employee in section 1 of the I-9 as to work eligibility the employee’s presentation of one or two of the various documents prescribed in the regulations that show identity and employment eligibility iii. the three-day requirement and the receipt rule iv. the retention of the I-9 for examination by government inspectors Employee’s Attestation as to Employment Eligibility a. The employee must fill out section 1 of the Form I-9 at the time of hire b. This section calls for the employee’s name, address, date of birth, social security number, signature and the date of signature, and the employee’s attestation List A Document, or Lists B and C Documents; Photocopying a. The employee must present to the employer, and the employer must personally examine, either a prescribed document that establishes both the employee’s identity and eligibility to work; or one document for identity and one for employment eligibility The Three-Day Requirement; The Receipt Rule a. The employee must be given three days to produce the documents b. An employee who fails to meet the documentary requirements must be terminated Employer’s Recording of Documents; Attestation a. The employer must properly complete section 2 of the Form I-9, checking the boxes to indicate the documents presented, and inserting document identification numbers and the date, if any, when eligibility to work expires b. Whoever signs for the employer is attesting that he or she has examined the documents, and that they appear to be genuine and to relate to the individual hired who is, to the best of the singer’s knowledge, eligible to work Retaining the Form I-9 for Inspection a. The employer must retain the Form I-9 for at least three years, or for one year after the employment ends, whichever is later Continuing Verification Obligation a. An employer has a continuing obligation to update the Form I-9 for employees who present employment authorization documents with expiration dates b. It only needs to complete section 3 of the original Form I-9, rather than an entire new from, to reflect that the employee is till authorized to work The Defense of Substantial Compliance; Enforcement Policies a. In General i. IIRAIRA adds a good-faith proviso to the I-9 verification requirements for failures occurring on or after September 30, 1996, known as the Sonny Bono amendment ii. Under this amendment, a person or entity is considered to have complied with a requirement notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply iii. The service may no longer impose penalties for minor slip-ups; the employer is given a grace period of at least ten days to correct the mistake or oversight b. The September 30, 1996 Threshold i. According to IIRAIRA § 411, the dispensation that INA § 274A(b)(6) grants, is limited to failures occurring on or after September 30, 1996 ii. The Virtue Memorandum seems more generous in applying the dispensation to cases arising from I-9 inspections conducted on or after the critical date c. The Difference between Substantive and Procedural / Technical Failures i. The Virtue Memorandum sets out in separate lists those verification failures that benefit from the 1996 amendment as procedural or technical, and those that are substantive and are therefore not covered ii. A timeliness failure is technical or procedural, and is covered if committed on or after 9/30/96 d. Good Faith Attempt to Comply; The Ten-Day Notice i. Section 411 of IIRAIRA overcomes a technical or procedural verification failure only for those who have attempted in good faith to comply ii. Under the Virtue Memorandum, service personnel are to presume good faith unless there is evidence to show otherwise iii. An individual or entity who has been advised of the deficiency, given a ten-day notice to correct it and fails to do so, ordinarily cannot claim good-faith e. Correction of Technical or Procedural Verification Failure i. An employer, recruiter or referrer for a fee, who corrects a technical or procedural failure within the designated time meets the compliance requirements
i. ii.
54
ii. 9.
Failing to remedy the failure, the responsible individual or entity faces civil money penalties, unless the failure could not reasonably be corrected
D.
Penalties a. If, despite the eased enforcement policies, an employer is charged and found to have violated the paperwork requirements, the civil fine to be imposed ranges from $100 to $1000 for each individual with respect to whom a violation occurred b. Employers may also be subject to penalties under INA § 274C, which imposes civil monetary penalties for specified acts of document fraud, ranging from $2,000 to $5,000 for each document involved § 23.04: Unfair Immigration-Related Employment Practices 1. Prohibited Conduct a. General Rule i. IRCA declares it to be an unfair immigration-related practice for a person or other entity to discriminate on the basis of national origin or citizenship status in respect to hiring, recruiting or referral for a fee for employment, or discharge from employment b. Activities and Parties Targeted i. In addition to employers, only paid recruiters and paid referrers, namely commercial employment agencies and executive search firms, are subject to this prohibition; claims cannot be maintained against a not-for-profit recruiter ii. Moreover, a person or other entity that employs three or fewer employees is specifically exempted iii. In 1994, a federal court held that the discrimination provisions did not abrogate the immunity form suit that the federal government and its agencies enjoy under its sovereign powers, nor did they abrogate the immunity that the states are given under the Eleventh Amendment iv. If an employer requests that a worker provide more or different documentation than is required to establish employment authorization and identity under IRCA, or refuses to honor documents presented that on their face appear o be genuine, such actions will be considered to be unfair c. Persons Protected i. National Origin Discrimination Any individual seeking employment in the U.S., other than an unauthorized alien, is protected by this provision against national origin discrimination unless the claim is covered by Title VII ii. Citizenship Status Discrimination Only individuals who are U.S. citizens or intending citizens are protected against discrimination because of their citizenship status The claim of such discrimination can arise when a person who is actually a U.S. citizen or intending citizen is denied a job or is fired simply because the boss believes that the applicant is an alien 2. National Origin Discrimination a. Relationship of IRCA to Title VII i. IRCA Jurisdiction Section 703 of Title VII of the civil rights act of 1964 prohibits national origin discrimination, as well as discrimination for other stated reason The IRCA provision, which deals with both alienage and national origin discrimination, leaves Title VII protection intact ii. Title VII Jurisdiction National origin discrimination under Title VII is broadly defined to include discrimination on account of the individuals place of origin or ancestor’s place or origin, or physical, cultural or linguistic characteristics common to a given national origin iii. Limits on Title VII Jurisdiction Title VII’s impact on employers is limited to those in an industry affecting commerce and having fifteen or more employees for each working day in each of twenty or more calendar weeks b. National Origin Discrimination Under IRCA i. Scope The parties who are prohibited from discrimination on the basis of national origin are the same as those targeted for alienage discrimination; any
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3.
4.
individual or entity employing four or more persons, with the exceptions that apply as well in citizenship status cases Regulating employers with as few as four workers, IRCA extends a long way to Title VII’s minimum of fifteen employees Citizenship Status Discrimination a. Exceptions i. IRCA makes it an unfair immigration-related practice to discriminate in the case of a citizen or intending citizen because of citizenship status ii. It is not an unfair immigration-related practice to prefer an American citizen to an alien in hiring, recruiting, or referring for employment, if the two individuals are equally qualified iii. Exempted also is discrimination required by law or government contract or essential to doing business with a government agency b. Citizen or Intending Citizen Defined i. To be a citizen or intending citizen the claimant must be a citizen or national of the U.S., an alien who is a lawful permanent resident, a temporary resident under the legalization provision for pre-1982 entrants, a special agricultural worker, admitted as a refugee, or granted asylum Charges and Enforcement a. In General i. Under the enforcement procedure, an injured party, someone on his or her behalf, or an INS officer, may file a charge of a practice or violation with the special counsel b. Special Counsel i. The president appoints, with the advice and consent of the senate, a special counsel for immigration-related unfair employment practices within the department of justice c. Procedure i. Filing the Complaint: 120-Day Rule If within 120 days, the charge filed by or on behalf of an injured party does not result in the filing of a complaint with the ALJ, the charging party may file such a complaint The special counsel must notify any person making a discrimination charge of a determination not to file a complaint with respect to that charge ii. Time Limits A complaint may not be filed concerning a practice that occurred more than 180 days before the charge was filed with the special counsel Once the charge is filed, the charging party must wait 120 days before filing a complaint with the ALJ, pending the special counsel’s decision on whether to file iii. Administrative Law Judge Hearings The ALJs are to be specially designated by the attorney general as having special training respecting employment discrimination; to the extent practicable, they are only to hear cases under this provision A charge must be proved by a preponderance of the evidence iv. Orders; Fines Orders finding an immigration-related unfair employment practice may provide various remedies, including the rehiring of an injured party with or without back pay Neither reinstatement nor back pay may be ordered if the individual was refused employment for a reason other than national origin or citizenship status The penalty for the first violation will be not less than $250 nor more than $2,000 for each individual discriminated against The penalty for a second violation will be not less than $2,000 nor more than $5,000 for each individual discriminated against The penalty for committing more than 2 violations will be not less than 3,000 nor more than $10,000 for each individual violation v. Attorney’s Fees An ALJ or the court, in judicial review, in his or her discretion may award a reasonable attorney’s fee to the prevailing party vi. Judicial Review and Enforcement
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XIV. A.
B.
A party aggrieved by a final order has 60 days after its entry to seek review in the United States Court of Appeals for the circuit where the violation occurred 5. Standard of Discriminatory Activity Charged: knowing and Intentional Pattern of Practice a. The statute refers to a charge respecting an unfair immigration-related employment practice which alleges knowing and intentional discriminatory activity or a pattern or practice of discriminatory activity b. These views are incorporated in the regulations which redefine an unfair immigration-related practice in terms of knowingly and intentionally discriminating or engaging in a pattern or practice of knowing and intentional discrimination CITIZENSHIP AND NATIONALITY § 34.02: Governing Principles 1. Jus Soli a. The English common law rule, under which a person’s citizenship was determined by the place of his birth, was known as jus soli 2. Jus Sanguinis a. The law prevailing in many civil law countries is jus sanguinis, under which a person’s citizenship at birth was determined by the citizenship of his parents 3. Naturalization a. Naturalization is usually defined as the conferring of citizenship after birth § 34.03: Acquisition of United States Nationality at Birth 1. Birth in the United States a. Under the Fourteenth Amendment, “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside 2. Exceptions a. Diplomats i. Accredited diplomats and their families are not subject to the jurisdiction of American law ii. The INS holds to the position that birth in the United States creates only eligibility for permanent resident status and that such status is abandoned if a diplomat’s children, born in the United States, return to their country b. Birth in United States Possessions and Former Possessions i. In some cases, birth in United States territorial possessions conferred citizenship, while in other cases it did not c. Birth in Island Possessions i. Puerto Rico Persons born in Puerto Rico on or after January 13, 1941, subject to United States jurisdiction, are citizens at birth ii. Virgin Islands Persons born in the Virgin Islands on or after February 25, 1927 and subject to United States jurisdiction are citizens at birth iii. Guam Persons born in Guam on or after August 1, 1950, subject to United States jurisdiction, are citizens of the United States at birth iv. American Samoa and Swains Island American Samoa, including Swains Island, has never been incorporated into the United States, and the citizenship principle of jus soli does not apply Persons born in American Samoa and Swains Island, who are not otherwise citizens, are non-citizen nationals of the United States v. Canal Zone Persons born in the Canal Zone never did acquire United States citizenship under the jus soli principle However, such persons did become non-citizen nationals between the period February 26, 1904 and September 27, 1979, when their status as nationals was terminated vi. Philippine Islands Persons born in the Philippine Islands during the American colonial period, April 11, 1899 to July 4, 1946, were non-citizen nationals of the United States, but such status was terminated as of July 4, 1946 vii. The Trust Territories
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C.
Out of Micronesia, Marshall Islands, Palau, and the Northern Marianas, Northern Marianas became a commonwealth in political union with the U.S. and the domiciliaries became citizens of the United States effective November 4, 1986 3. Birth Outside the United States to Citizen Parents a. Legitimate Births i. Births Prior to May 24, 1934 Persons born outside the United States on or before May 23, 1934 acquired citizenship at birth if they had Untied States citizen fathers who had previously resided in the United States Under the modern law, a child born abroad before noon of May, 24, 1934 to an alien father and a U.S. citizen mother who resided in the U.S. is considered to have been a U.S. citizen at birth. No residency or physical presence in the U.S. is required ii. Births on May 24, 1934 Through January 12, 1941 Persons born abroad of two United States citizen parents acquired citizenship if at least one of the parents had previously resided in the United States Persons born abroad to one citizen and one non-citizen parent acquired citizenship if the citizen parent had previously resided in the United States iii. Births on January 13, 1941 Through December 23, 1952 Persons born abroad to two U.S. citizen parents acquired citizenship at birth provided at least one of the parents had previously resided in the United States Persons born abroad to one citizen parent and one alien parent acquired citizenship at birth if the citizen parent had previously resided in the United States for ten years or more iv. Births on or After December 24, 1952 Persons born abroad to two United States citizen parents acquired citizenship at birth provided at least one of the parents had previously resided in United States The Technical Correction of 1994 provides that a U.S. citizen parent may apply for a certificate of citizenship for a child born outside of the U.S., upon showing that: (1) at least one parent is a U.S. citizen; (2) the child is lawfully admitted and physically present in the U.S.; (3) the child is in legal custody of the citizen parent and under the age of 18; and (4) the child was adopted before age 16, if applicable, and meets the requirements for adopted children v. Child Citizenship Act of 2000 Under the CCA, effective February 27, 2001, a foreign-born child automatically acquires U.S. citizenship, without the need to apply, if: (1) the child has at least one citizen parent; (2) is under 18; (3) is in the U.S. and in citizen parent custody; and (4) is lawful permanent resident b. Rule Where Subject Unaware of Citizenship Claim or Retention Requirements i. A person subject to the retention requirement, who was unaware of his or her claim to citizenship did not lose citizenship by failure to comply with the retention requirement ii. A person subject to the retention requirement who was aware of the claim to citizenship, but who was unaware of the retention requirement, did lose citizenship by failure to comply with the retention requirement c. Birth Out-of-Wedlock i. To United States Citizen Mother A child born abroad on or after December 24, 1952 acquired U.S. citizenship if the mother was a U.S. citizen with one year prior physical presence in the U.S. ii. To United States Citizen Father See page 15 iii. Child legitimated by Alien Father The general rule is that United States citizenship acquired at birth from a citizen mother is not affected by later legitimation by an alien father § 34.04: Specific Procedures to Document Citizenship Claim
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1.
2.
3.
4.
5.
6.
Generally a. No Duty to Document Claim i. Citizens of the United States are not required to carry any citizenship documents b. Purpose of Documenting Claim i. Documentation of a citizenship claim is highly recommended and provides security and other immigration and financial benefits Passport Application a. An American citizen may apply for a passport b. In deciding whether to issue a passport to a first-time applicant, the department of state must make a determination as to citizenship c. The passport, when issued for the maximum period, becomes a prima facie citizenship document Certificate of Citizenship Application a. An American citizen born abroad may apply to the attorney general for a certificate of citizenship b. When issued, this document serves as a primary citizenship document c. Certificate of citizenship applications are submitted on Form N-600 Determination of Case a. State Department Procedures in Passport Cases i. If the applicant is in the United States, and applying for a passport for the first time, a reasonable average processing time would be about three to four months b. Possible Problems i. The department of state passport officers almost never interview anyone connected with a passport application ii. Problems arise when an applicant’s case is based on affidavits and testimonials rather then solid required documents c. State Department Decisions i. State department decisions are always in writing and in the form of a simple letter to the applicant or his attorney and state the basis for refusal to issue the passport d. Revocation of a Passport i. The state department may revoke a passport that was fraudulently obtained, altered or misused, or in cases where the individual would not meet the requirements for issuance of a new passport ii. The 9th Circuit has ruled that revocation is only allowable if the passport holder is given an opportunity to be heard before the revocation, and if exceptional grounds such as fraud or misrepresentation exist INS Procedures in Form N-600 Certificate of Citizenship Cases a. Generally i. There is no requirement that N-600 applications can only be made by a person who is in the United States b. INS Opinions i. The INS decisions are usually in legal or quasi-legal format, and they discuss the facts, law and conclusions in a manner familiar to most attorneys c. Interview/Hearing i. Unlike the procedure in passport cases, N-600 applicants are always interviewed in person d. Revocation of Certificate of Citizenship i. Upon a finding that there was illegality or fraud in obtaining the certificate, the INS may notify the holder of its intention to revoke the document ii. The holder has sixty days in which to submit a response or seek a hearing before a naturalization examiner Judgment; Post-Judgment Tactics a. Form of Judgment i. Passport Cases Passport decisions are almost always in letter form and state the basis for the denial in simple terms ii. Certificate of Citizenship Cases Form N-600 decisions are usually in a legal format and discuss the facts, law and evidence b. Administrative Appeals i. Passport Cases
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D.
E.
F.
The most surprising thing about passport cases is the relative scarcity of administrative remedies There is no remedy at all if the decision is based on non-citizenship or loss of citizenship Appeals to the board of appellate review in passport cases must be taken within one year of the issuance of the loss of nationality ii. Checklist for Administrative Appeals of Passport Cases File application with passport office Write follow-up letter after ninety days if no response If denial is issued, write to adjudicating officer asking about appeal File application and brief with BAR as soon as possible Follow Board’s procedures as to briefs iii. Certificate of Citizenship Cases The INS decision denying an N-600 application is accompanied by instructions for the appeal and the appropriate form The appeal goes to the administrative appeals unit of the INS central office in Washington iv. Checklist File form N-600 with nearest INS office Present applicant, witnesses, and evidence for interview If the application is denied, file notice of appeal and brief with INS c. Judicial Review i. Federal Court Suit for Declaratory Relief Once administrative remedies have been exhausted, the procedures for judicial review of passport and N-600 denials are virtually the same ii. Time Requirements and Procedure The jurisdictional time requirements for suit are five years from the final administrative denial § 34.05: Acquisition of United States Citizenship by Marriage 1. American citizenship cannot now be acquired by marriage 2. however, from 1855 to 1922, alien females who married American males obtained United States citizenship by the act of marriage § 34.06: Acquisition of Citizenship by Naturalization of Parents 1. Conditions Under Which Citizenship Acquired by Naturalization of Parents a. Prior to May 24, 1934 i. An alien child born outside of the U.S. automatically acquired citizenship if: Naturalization of either parent before child became 21; and Lawful permanent residence of child before the age 21 b. Between May 24, 1934 and January 12, 1941 i. An alien child born outside the U.S. automatically acquired citizenship if: Before the child is age 21, both parents acquired citizenship; and Lawful permanent residence for child before the age of 21 c. Between January 13, 1941 and December 23, 1952 i. An alien child born outside the U.S. automatically acquired citizenship if: Naturalization of the alien parent or both parents; and Lawful permanent residence of child d. On or After December 24, 1952 i. An alien child born outside the U.S. automatically acquired citizenship if: Lawful permanent residence of the child Child is not married; and Naturalization of both parents § 34.07: Acquisition of Citizenship by Administrative or Judicial Naturalization 1. General Requirements a. Lawful Permanent Residence i. All applicants for naturalization must be lawful permanent residents of the United States b. No Deportation Proceeding or Order i. A person may not be naturalized if there is an outstanding final finding of deportability or if a deportation proceeding is pending c. Prescribed Residence After Entry
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i.
An applicant for naturalization must meet the following three requirements: Five or more years continuous residence, after being lawfully admitted for permanent residence, including physical presence for at least half that time Continuous residence in the state wherein the petition is filed for at least six months if petition filed before 10/01/91 otherwise three months continuous residence; and Continuous residence in the U.S. from the date of filing petition
d.
Age i.
G.
A person may not file a petition for naturalization until he or she attains the age of 18 years e. Mental Capacity i. While most applicants must be legally competent, developmentally disabled or mentally impaired applicants do not have to meet the educational requirements, nor do they have to take the oath of renunciation and allegiance f. Educational Requirements i. An applicant must be able to read, write and speak words in ordinary usage in the English language, and have a knowledge of U.S. history and gov ii. Disabled and persons over the age of 55 with 20 years LPR are excused iii. Exemption is also granted to those over the age of 55 who have lived in the U.S. in permanent resident status for at least 15 years g. Good Moral Character i. Every applicant must demonstrate good moral character during the prescribed period of residence ii. An alien who was convicted of an aggravated felony after the immigration act of 1990 is precluded from establishing good moral character and is permanently barred from naturalization iii. A conviction for murder precludes the establishment of good moral character regardless of when the conviction occurred h. Loyalty and Allegiance to the United States i. Applicants must be attached to the principles of the constitution of the U.S. and well disposed to the good order and happiness of the U.S. ii. Persons who have applied for and received exemptions or discharges from military service on the basis of alienage are ineligible to naturalize 2. Exceptions to General Requirements a. Special Classes b. Effect of Absences From the United States i. Six Months or Less Absences from the U.S. of six months or less do not affect the continuity of residence Absence from the U.S. for one year or more breaks the continuity of residence, unless advance approval of such absence was obtained ii. Advance Approval of Absence A permanent resident with one year’s physical presence in the U.S., who is employed abroad by the U.S. gov. or any other U.S. institution may apply on form N-470 to preserve the continuity of residence for naturalization purposes iii. Other Absences Apart from an approved absence and absences of less than one year, almost any other voluntary absence will constitute a bar to naturalization § 34.08: Specific Procedures for Naturalization 1. Statutory and Regulatory Requirements a. An application for naturalization may be filed up to three months before the applicant is eligible for naturalization i. An application filed more than three months in advance will be returned b. An applicant who is denied naturalization can request administrative review by a second INS officer c. After exhausting administrative remedies, if a denial is then issued, the applicant may then file for a de novo review in a United States district court d. The INS is required to administer naturalization oaths at least once a month in each service office conducting naturalization activities 2. Administrative Requirements
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H.
I.
J.
The application process is begun by the filing of form N-400, form G-325, fingerprint chart and photographs with the nearest office of the INS which handles naturalization applications b. The INS decision to grant or deny naturalization is usually made at the time of interview c. The INS is required to grant or deny a naturalization application within 120 days after the first examination of the applicant d. At the initial interview, INS test the applicant for literacy, knowledge of history, and government e. An applicant is entitled to one re-examination within ninety days for literacy or government and history issues § 34.09: Determination of Case 1. INS Interview a. At the beginning of the interview, the applicant is put under oath, and the examiner normally goes over every item on the N-400 application, line by line 2. Decision of the INS Examiner a. Granting of Application i. If the application is granted, the applicant has the option of being sworn in by the court or by the INS b. Denial of Petition i. A denial by the INS must be in writing and must state the reasons for the denial, as well as the applicant’s right of review ii. The request for review must be filed within 30 days of service of the denial notice 3. Naturalization Ceremony a. Once the application for naturalization is granted, the applicant may choose whether to take the oath of citizenship before a court or before the INS § 34.10: Post-Judgment Tactics 1. Time for Filing Appeal a. The time for filing a civil appeal from a decision of a federal district court in a case where the government is a party is presently sixty days 2. Notice of Appeal a. The notice of appeal which commences the appellate procedure in federal court is simple in form 3. General Procedure a. Civil appeals in the federal system are governed by the federal rules of appellate procedure § 34.11: Special Classes 1. Children of the United States Citizens a. The child citizenship act of 2000 radically revised the law of derivation of citizenship after birth b. To be eligible, a child must meet the following requirements: i. The child must have at least one U.S. citizen parent ii. The child must be younger than 18 iii. The child must be currently residing permanently in the U.S. and be in the legal custody of the citizen parent; and iv. The child must be lawful permanent resident 2. Spouses of United States Citizens a. Generally i. The spouse of a U.S. citizen is able to naturalize if he or she: Resided continuously in the U.S. for three years after being lawfully admitted for permanent residence; Lived in marital union with the citizen spouse for three years and the spouse has been a U.S. citizen for the duration of that period Has been physically present in the U.S. for at least 18 months during the three-year period; Resided for at least three months in the state of residence Establish good moral character for the three year period b. Spouses of Citizens Employed Abroad i. Spouses of citizens who are regularly employed abroad may naturalize under more lenient requirements c. Spouses of Citizens Who Died on Active Military Service i. The surviving spouse may be eligible for naturalization if: She was living in marital union with the citizen spouse at the time of that spouse’s death
a.
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She resided in the U.S. as a lawful permanent resident at the time of examination on the application for naturalization; and She is of good moral character 3. Non-Citizen Nationals a. Non-citizen nationals who wish to be naturalized must reside in the United States, including DC , Puerto Rico, Guam and the Virgin Islands b. However, they do not have to be admitted for permanent residence since, as nationals, they are allowed unrestricted entry to the U.S.
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