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					                                                                 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.

                                                                                          CONTE NTS
                                                                                                                                                                                                   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
                                                                                                    1
   § 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




                                                         2
I.   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 t he
                                       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 t hat 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, i nhuman 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 i n 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

                                                            3
                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 o ut 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 t he 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
2.   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 o ne that the
                     members of t he group either cannot cha nge, or should not be required to change
                     because it is fundamental to their individual identities or consciences
                iii. The Ni nth 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 t he
                               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 Sa nchez-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;


                                          4
                                     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 demo nstrates compelling reasons for being
                           unwilling to return arising out of the severity of the past persecution
C.   § 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 no npolitical
                           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
D.   § 29.04: Discretion
              1. If an applicant establishes that he is a refugee, and t hat 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 a nd painful
              4. Adverse factors include circumvention of orderly refugee procedures, use of fraudulent documents,
                  and criminal conduct
E.   § 29.05: Consequences of receiving asylum
              1. Benefits
                      a. An asylee is eligible to have his or her spouse and children follo w 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 t he 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
                                                        5
                               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
F.   § 29.06: Withholding of removal
              1. In general
                     a. The attorney general may not remove an alien to a country i f 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 o f 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 p hysical 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
G.   § 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 I-
                                    589, 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 a fter
                                    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 no n- adversarial manner
                                                       6
                                  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 w ho may be released to a relative
                                  iv. Aliens who will be witnesses in judicial proceedings
                                  v. Aliens whose continued detention is not in the p ublic 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 mu st 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 t he meaning of the
                             statute at the time of admission
    I. § 29.09: Temporary protected status
                1. Temporary refuge in t he 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 t hat;
                        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 sa fety
                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 mo nths
                4. To be eligible for a grant of TPS, an alien from a designated country must est ablish 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 uni fication 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 (F S-1)
                                                          7
                      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 behi nd, and the fourth is hopelessly backlogged
              6. The petitioning relative is called the petitioner; the alien for w hom immigration status is sought is
                  called the beneficiary
B.   § 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 t o 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 o f 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 w hich 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 a nnulled
                                     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 t he 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
C.   § 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 numerica l restrictions as an immediate
                          relative
                      b. By definition, a child includes only an unmarried person under the age of 21
                                                         8
             2.   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 b een 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 t he father’s residence or domicile,
                                    whether in or o utside 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 chil d 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 t he 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
D.   § 11.o4: Parent of U.S. citizens
                                                        9
             1.    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 o f 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
E.   § 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 a n 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
F.   § 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 (F S-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
G.   § 11.07: Third family-sponsored preference: (F S-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 perma nent resident, even after the petition has
                   been approved and a visa issued
H.   § 11.08: Fourth family-sponsored preference: (F S-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
I.   § 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
                                                        10
                               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 co nsular of fice 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 sta tus 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 c hildren
                     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 w ho 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 t he
                          beneficiary is in the United States and eligible for adjustment of status, i n 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
J.   § 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
                                   ii. 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 o f 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 t he 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 w hen both
                     the Form I-130 petition and their Form I-485 applications have been approved
III. NONIMMIGRANTS: TERMS OF ADMISSION A ND PROCE DURE S
     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 t hat 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
                                                             12
                           Form I-94: The arrival – departure record
                          b.
                                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, o nce issued, is the basis for readmission to the U.S. to the date of extension
                                     or change of status shown, a fter 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 o f 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 – INA DMISSIBILITY; 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 i nadmissibility 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 termi nology, the terms exclusion and inadmissibility are functionally
                           equivalent
                3. Distinction between inadmissibility and deportability


                                                           13
                     a.  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, w hile any other alien may designate one country to which
                         he wants to be removed
B.   § 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 t he alien is applying for adjustment of status in t he 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 o f 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 o f inadmissibility
                     d. Note that chronic alcoholism as such is no longer a ground o f 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

                                                      14
                                           has a son or daughter w ho is a U.S. citizen, or a n 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 b e 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 i nfection 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 assura nces or bond that may be required to assure that necessary
                                             expenses will be met by the alien
C.   § 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 t he 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
                  ii. 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, a nd 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 w hich 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 i n the united states
                       for which he has received a pardon
3.   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
4.   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
5.   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
6.   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 p urpose 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 w ho 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
7.   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.
8.   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



                                         16
                              i.   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 a nd, 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 t he 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
D.   § 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:
                                                       17
                                            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 t he place where it is committed and which involves any of t he
                                    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 w hose 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
E.   § 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
             2.  Affidavit of support requirement for certain aliens
                     a. Affidavits of support have often been required in i mmigrant visa cases to avoid a public
                          charge issue
                     b. Affidavits of support are mandatory for most family-sponsored immigrants and so me
                          employment-based immigrants
                     c. The person w ho signs the a ffidavit 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 i mmigrant’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 a n 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 o f at least $1,000, fixed by
                          the attorney general
F.   § 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, a nd 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 w hich 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



                                                       19
                                             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, V QE,
                                               FMGEMS, or USMLE examinations and has satisfied the English
                                               competency requirement will receive a certificate of satisfactory completion
                                               from the ECFM G
                                             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
G.   § 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 t he
                           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
                                           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 t hat 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, incl uding 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 i nadmissibility 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
H.   § 16.08: Aliens Seeking Admission Without Proper Documentation
              1. Nature of requirements
                      a. One w ho 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 i mmigrant 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
                     a.   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 t hat 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. i n B-1 or B -2 status for up to 90 days from specified
                                    countries
I.   § 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 no nimmigrants
                      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 t hey are not deportable
J.   § 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. w hile an order of removal is outstanding
              2. Aliens unlawfully present in the United States
                      a. In general
                               i. Being unlawfully present in t he 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 t he 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
                                                       22
                                            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
                     d.  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 i mmigration 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
K.   § 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
                     a.   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 t he other ha nd, 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 tra ffic 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 o f aliens for a ny 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
L.   § 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 returni ng 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 o f 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 w hether to approve the waiver:
                                            The risk of harm to society if the applicant is admitted
                                            The seriousness of the applicant’s prior violations; and

                                                      24
                                              The person’s reasons for wishing to enter the United States
                         c.   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
                         d.   Where visa not required
                                 i. If the alien does not require a visa the procedure is different
                                 ii. In such a cases t he 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 i ntended 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 a ny 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 E nglish 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 t he new school and informs the designated official at the old
                            school of his intention to transfer
                       c. M-1 student must seek INS aut horization to transfer schools
               3. Extension of stay
                       a. The 1991 final rules eliminated the need for extensions o f stay and allow F -1 students to be
                            admitted for the time during w hich they are pursuing a full course of study at an educational
                            institution approved by the INS
               4. Employment
                                                          25
                     a.   On-camp us 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 t he 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 o f
                                             support; and
                                           medical bills
                     d. Application procedure
                               i. To apply for employment authorization, a student must submit a completed Form I-
                                   538, 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, i f the training is with a specific employer, a job
                                   offer in w riting
                     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
D.   § 5.04: Admission Procedures
              1. Initial Admission
                     a. Even though a consular officer issues a st udent 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 I-
                          20M-N or I-20A-B, together with evidence of sufficient funds o tatted the specified school
              2. Subsequent admission
                                                      26
                          a.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 o f an affidavit, with accompanying documentation, Form I-20A-B
                            or I-20M-N from t he 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, a nd 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 I-
                            20M-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 w ho 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-BASE D IMMIGRANTS
    A. § 18.01: In General; New System; Priority Dates
                1. The total allocation of visa numbers issued annually on the basis of skil ls 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
                                                          27
        a. 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
2.   Employment, Employer, and Employee
       a. Portability Under AC21
               i. Most of the features o f 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, b ut 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 locat ion 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 t he priority date is established until lawful residence is obtained;
                    evidence of the employer’s fina ncial ability must be submitted with any petition
                    requiring a job offer
       d. Permanency of Position
               i. In the EB t hird 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 t he 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

                                         28
                                            competence from the commission on graduates of foreign nursing schools
                                            or an equivalent credentialing organization approved by the attorney
                                            general
             3.   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 o f 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
C.   § 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

                                                       29
                               i. 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 educati on
                                            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, d irectly 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
D.   § 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

                                                       30
                               i.  To qualify in the second EB preference as a member of t he 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 Busi ness
                              i. Under the second preference, the alien’s exceptional ability must be in the sciences,
                                   arts or business. These terms are defi ned neither in the INA nor the regulations of
                                   the service
                              ii. The department of labor, for the p urposes 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 t he United States and making more productive use of
                                   natural resources; or
                              vii. responding to a request from an interested U.S. government ag ency
                     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
E.   § 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 i f they have at least a baccalaureate degree and are
                         members of t he professions
                     b. The statutory definition of members o f the professions includes architects, engineers, lawyers,
                         physicians, surgeons a nd 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 ot her
                         worker
                     b. The latter category, limited to only ten thousand of the third-preference allocation, is heavily
                         oversubscribed
F.   § 18.06: Fourth Employment-Based Preference: Special Immigrants; Religious Workers
                                                       31
             1.    Ministers and other Religious Workers
                      a. The fourth preference category is limited to 10,000 visa numbers and i nclude ministers and
                          other religious workers
                      b. Like the ministers, the other religious workers must, for t he two years immediately before
                          application, have been a member of a religious denomination ha ving 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 fourt h-preference categories must be filed with the service by or on
                          behalf of the alien; those i n the religious categories C are to be filed on Form I-360
G.   § 18.07: Fifth Employment-Based Preference: Immigrant Investors: Pilot Program
              1. Basic Program
                      a. The fift h 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 o ne 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 appl icant 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 t he
                          new enterprise, such jobs will be created directly or indirectly through revenues ga rneted
                          from increased exports
H.   § 18.08: Petition Procedure: Petition and Filing; Petitioner and Changes in Ow nership; 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 fourt h 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 i n 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 o f documenting the beneficiary’s basic eligibility for the
                          preference
                                                       32
                         b. Additional documentation may be needed to meet the requirements of a labor certification
VII. CONSULAR PROCESSING OF IMMIGRA NT 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 a n 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 w hich 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 t hat consulates request applicants to process in
                              the chronological order of their priority dates within each preference, observing the per-
                              country 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 si ngle 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 w here 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 i mmigrant visa applications
                 2. The packet system

                                                           33
                          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 t hat 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 t hat determination will
                               be made by the consular officer only a fter 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
   F.    § 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, t he 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 o f proof in establishing eligibility is on the alien
   G.    § 25.07: Issuance of the Visa and Its E ffect
                  1. The consul must either issue or deny the visa
                  2. Unless t he visa is issued the same day, or , in practice by the end of the next working day, the consul
                      must fi nd 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 inspec tor 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
   H.    § 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
   I.    § 25.09: Revocation of the Visa
                  1. An immigrant visa may be revoked by a consular officer or t he 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 t hat
                      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
VIII.       ADJUSTME NT OF STATUS TO PERMA NENT RESIDENCE
    A.   § 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

                                                           34
             4.   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
B.   § 26.02: Eligibility Summarized
              1. Under § 245(a), t he 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; a nd
                       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
C.   § 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 t he 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 t he 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
D.   § 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
E.   § 26.05: Adjustment Is Discretionary
              1. Although an applicant for adjustment may meet all the technical requirements for ad justment,
                  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
F.   § 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
G.   § 26.07: Employment Authorization; Advance Parole
              1. With certain exceptions, aliens who have taken una uthorized 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 t he pendency of an administrative applica tion for
                  adjustment under § 245, is treated as an abandonment of the application unless advance parole was
                  granted
                                                       35
H.   § 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
I.   § 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 a nd 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 t hese 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 t he 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
J.   § 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
K.   § 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
L.   § 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
M.   § 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
N.   § 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.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 o f marijuana
                                 v. prostitution
                                 vi. involvement in serious criminal activity from the prosecution of w hich the non-
                                       citizen 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 who m 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 pre-
                            approved 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 onesel f
                        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 t he 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 t he 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
                                                          37
        a.   Employer’s supplementary certificates must state that:
                  i. The employer has eno ugh 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
5.   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 mont hs up to and including 1 year
                  vi. (4) over 3 mont hs 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)
6.   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
                                         38
                               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
7.   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 t he 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 t he 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 SE SA 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 t hat 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 SE SA will
                      return the application; an application re-filed under t hese 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
8.   Determination by certifying officer; Notice of findings
        a. The SE SA 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



                                         39
                      c.   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 ap plication 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
C.   § 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 perma nent labor certification process
              2. It presumes t hat 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
D.   § 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 teachi ng 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 t his 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 t he 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
                                                       40
                     c.  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
E.   § 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, t hat they are labor certified
                     b. Group I o f 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 o f 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
F.   § 15.06: Schedule “B” Non-certifications
              1. Schedule B occupations
                     a. Schedule B includes a list of occupations for w hich 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

                                                      41
                          a.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 i n the context of ho usehold domestic workers
                       b. Filing for such workers are severely depressed as a result of t he 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 prio r 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. t hat
                            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 i nadmissible 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 o f high speed
                                              flight from an i mmigration 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

                                                          42
                              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 defi nition broadens the meaning of conviction and includes the
                                withholding of adjudication of guilt, where: (1) a j udge 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
2.   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
                  ii. The INS must a ffirmatively establish, by clear and convincing evidence, that the
                       alien is deportable
3.   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
4.   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
5.   Consequences of failing to appear at a removal hearing
        a. IIRAIRA mostly retained the language of former INA § 242B(c) co ncerning 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
6.   Proof of conviction
                                         44
                          a. 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 l ist 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 fi nding 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 Circ uit
                        c. AEDPA § 502 establishes a removal court consisting of five U.S. district court judges chosen
                             by the chief justice of t he 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 p roceedings 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
                                                          45
                     a.   An alien is subject to deportation only if he or she has entered the U.S.
                     b.   An alien can be deported on the ground that he or she was excludable at time of entry or
                          adjustment of status
B.   § 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 t he 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 fo ur 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 fift h ground of deportation is public charge ground
C.   § 17.03: Challenges to Deportation Power
              1. Generally
                     a. The due process clause o f 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 t he 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 t he 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 M OST DAMAGING PR OCEDURE AT DEPORTATION
                                    HEARINGS W HICH HAS BEE N SUSTAINE D A ND APPEARS TO THWART
                                    THIS DUE PR OCESS REQUIREMENT IS THE A DMISSIBILITY OF HEARSA Y
                     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
                                                       46
                     a.   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 aut hority 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 8 th 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 tha n 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
D.   § 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 w ho 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 t he United States and who has lost citizenship through
                          expatriation or denaturalization is an alien
                      b. A non-citizen national of the U.S. w ho 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
E.   § 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 t he 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:
                                                      47
                               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 t he 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
2.   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
3.   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
4.   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 crimi nal conduct
                      any time after entry, is subject to expulsion
                  ii. The immigration act of 1990 bars aggravated felons from many provisions of the
                      INA
5.   Amelioration of deportation
        a. Pardon
                  i. Any alien who has been convicted of a crime or crimes i nvolving 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
                                            The motion to dismiss in the interest of justice is available in most states
                               ii. 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 i n
                                             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 und er 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 a fter 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 fra ud 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
F.   § 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

                                                       49
                          b. 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 fi fth
                                       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 proced ure
                                  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 w hile in a legal status, even if later fo und
                                       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 o f persecution in t heir 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 w ho 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 DISCRETIONAR Y REMEDIE S
     A. § 20.01: Generally
                 1. The grounds o f 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., a nd 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
                                                           50
                     b.  IIRAIRA authorizes voluntary departure before the conclusion o f 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 p hysically 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
C.   § 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 ma ny 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 p hysical 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 p hysical presence is required for INA 240A(b)(1) cancellation
                                                      51
                                   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 accrui ng time towards cancellation while her removal
                                        case is pending
                          c. Commission of an o ffense
                                   i. The second type of occurrence that cuts off the accrual of time in continuo us
                                        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 w ho 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
   D.    § 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
   E.    § 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
   F.    § 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
XIII.       EMPLOYMENT
    A.   § 23.01: Introduction
                  1. In General; Preemption
                          a. Under provisions introduced by the Immigration Reform and Co ntrol Act of 1986, certain
                              hiring practices for employment in the United States are prohibited
                                                           52
                      b.  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 una uthorized 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 Aut horization
                      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 t o the
                          corresponding bar against the referral or recruitment of aliens knowing they are
                          unauthorized for t he 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 i ndividual 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; E mployment Authorization
                      a. The INS defi ne unauthorized alien with respect to employment as an alien not admitted for
                          permanent residence, or aut horized 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 t hree 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 EA D, 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
B.   § 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 t hat 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 unaut horized alien, and take
                          other appropriate action
C.   § 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 t he Form I-9, involves several components:
                                                       53
                  i. an attestation by the employee in section 1 of the I-9 as to work eligibility
                  ii. 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 t he receipt rule
                  iv. the retention of the I-9 for examination by government inspectors
2.   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
3.   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
4.   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
5.   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 t he
             date, if any, when eligibility to work expires
         b. Whoever signs for t he 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
6.   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 t he
             employment ends, whichever is later
7.   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 tha n an entire new from,
             to reflect that the employee is till authorized to work
8.   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 a fter September 30, 1996
                  ii. The Virtue Memorandum seems more genero us in applying the dispensation to cases
                       arising from I-9 inspections conducted on or after the critical date
         c. The Di fference between Substantive and Procedural / Technical Failures
                  i. The Virtue Memorandum sets out i n 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, w ho corrects a technical or procedural
                       failure within the designated time meets the compliance requirements

                                         54
                               ii. Failing to remedy the failure, the responsible individual or entity faces civil money
                                   penalties, unless the failure could not reasonably be corrected
              9.  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
D.   § 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 w ho 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

                                                        55
                                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
3.   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 Defi ned
                 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 perma nent resident, a temporary resident under the
                      legalization provision for pre-1982 entrants, a special agricultural worker, admitted
                      as a refugee, or granted asylum
4.   Charges and Enforcement
         a. In General
                 i. Under the enforcement procedure, an i njured 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 i njured 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 mo re 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 t han 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


                                          56
                                               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 a n unfair immigration-related
                             practice in terms of knowingly and intentionally discriminating or engaging in a pattern or
                             practice of knowing and intentional discrimination
XIV.       CITIZENSHIP AND NATIONALITY
   A.   § 34.02: Governing Principles
                 1. Jus Soli
                        a. The English common law rule, under w hich a person’s citizenship was determined by the
                             place of his birth, was known as j us 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 conferri ng of citizenship after birth
   B.   § 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 Aug ust 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

                                                           57
                                            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) t he 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. a nd 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 w ho 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-o f-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 t hat United States citizenship acquired at birth from a
                                             citizen mother is not affected by later legitimation by an alien father
C.   § 34.04: Specific Procedures to Document Citizenship Claim
                                                         58
1.   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
2.   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
3.   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
4.   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 mont hs
        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 w here the individual would not meet the requirements for
                       issuance of a new passport
                  ii. The 9 th 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
5.   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
6.   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

                                          59
                                            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
D.   § 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
E.   § 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
F.   § 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 perma nent 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

                                                       60
                                 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.  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 t he 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 t he U.S., w ho 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
G.   § 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

                                                         61
                      a.  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
H.   § 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
I.   § 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
J.   § 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 t he 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 E mployed Abroad
                                i. Spouses of citizens w ho are regularly employed abroad may naturalize under more
                                     lenient requirements
                      c. Spouses of Citizens W ho 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

                                                       62
                            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.




                                       63

				
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