Immigration Law
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| From 1875-1917, we see the first immigration constraints (numerical after WWI) | For 100 of years we did not have immigration law
In 1925 the Chinese expulsion
In 1952- INA act, has never been repealed, but rather amended and amended
INA divides us into citizens and non-citizens
and centers around the US worker
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| Visa | – travel document
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| Status | – label attached once admitted to enter U.S.
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| Alien | – two categories
- Immigrant (permanent)
- Nonimmigrant (temporary)
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| LPR | – legal permanent resident (not fully protected under Constitution because no U.S. citizen)
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| Green Card | – documentation of LPR
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| Illegal Alien | – a) entry without inspection or b) entered legally and overstay or change conduct
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| Nonimmigrants | are usually unrestricted in number and must show strong connection to home country before granted admission (since presumption is for immigrant status, up to alien to show nonimmigrant intent)
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| Immigrants | are restricted in number (quotas) based on:
a) family-based (immediate relatives not subject to quota)
b) employment-based
c) diversity
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| Citizenship Checklist | - birth
- birth outside U.S. with at least one U.S. citizen parent
- naturalization
- may be renounced
- may be de-naturalized if fraud
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| Naturalization Checklist | - time after LPR status (5 yrs., or 3 yrs. If married to U.S. citizen)
- knowledge of U.S. civics/history
- pledge/oath
- good moral character
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| Process to Immigrate Checklist | -file petition
-adjudication
-interview and granted visa
-if already in U.S. – adjustment of status
of our U.S. Service Centers (file by jurisdiction) many district offices (where interview takes place in U.S.)
-- at interview must provide proof
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| marbury v. madison | shaped constitutional law as it decided congress was not to have the last word on matters of constitutional interpretation (judicial review) but has exceptions as congressional powers to exclude are plenary
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| open borders since | 1875
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| where does government receive its power to regulate immigration laws? | enumerated powers
implied constitutional powers
federal power limitations
congress the power holder
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| enumerated powers | commerce clause
migration/importation clause
naturalization clause
war clause
pg. 106 other clauses
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| commerce clause | commerce may regulate commerce with foreign nations and that means regulating the movement of people substantially affecting interstate commerce
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| migration clause | prohibits migration and importation after 1808 unless allowed by congress--slave trade concern
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| naturalization clause | congress is authorized to establish a uniform rule of naturalization and as a part of it, congress made lawful the admission as a permanent resident a pre-req to naturalization
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| war clause | congress has the power to declare war- regulating alien enemies
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| implied constitutional powers | chinese exclusion case + Ekiu+ Fong Yue Ting= building blocks for the plenary power over immigration
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| chinese exclusion case | recognized inherent federal power to exclude noncitizens
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| ekiu | rejected due process limits on power to exclude [due process does not require judicial fact finding]
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| fong | extended chinese and Ekiu principles of exclusion to deportation
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| limits to federal power | - ex post facto not a limit because that only applies to criminal (penal statutes)
- plenary power entitled to separate people into different gorups as long as has a rational basis and can apply to all evenly
- substantive due process
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| substantive due process | in exclusion cases-minimal review
in deportation cases-minimal review
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| congress has all the power | broad power to regulate immigration as the control of international relations belongs to the political department of the government--wont second guess the fact finders
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| nonimmigrant categories | 101(a)(15)
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| immigrant quotas | all family sponsored, employment, and diversity immigrants subject to ceilings per group and nationality.
480,000 per family (226,000 IR)
140,000 per employment
50,000 per diversity
no more than 7% of visas from one country
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| Immediate relatives | 101(b) spouses, parents, and children of USC under 21
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| exempt from quotas | IR
returning LPR's
former USC and children of LPRs born abroad
refugees have own quota
parolees
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| following to join | 203(d)
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| family preferences | 1st, 2nd,3rd, and 4th
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| exempt from quotas | IR
returning LPR's
former USC and children of LPRs born abroad
refugees have own quota
parolees
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| following to join | 203(d)
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| family preferences | 203(a) 1st, 2nd,3rd, and 4th but does not include IR
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| 1st preference | unmarried sons and daughters of USC over the age of 21- get 23,400 + leftover 4th preference
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| 2nd preference | only LPR category
2a: spouse and children under 21 of LPR: 77%
2b: unmarried sons and daughters of LPR over 21:23%
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| 3rd preference | married sons and daughters of USC: 23,400+ leftover 4th preference
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| 4th preference | brothers and sisters of adult USC: 65,000
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| immigration marriage fraud | governments only means of finding marriage fraud is by interview.
it may bi bilateral or unilateral
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| elements of a legal marriage | is the marriage legal in the jurisdiction that it is authorized ??
were the parties competent to get married?
at inception, the couple must intend to live together and stay married
no fee paid
not judicially annulled
not for immigration purposes
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| framework for marital conditional status | 216:
if spouse/fiance of USC or spouse of LPR AND marriage is less than 24 months old when petitioning visa (with exceptions) then receive permanent status with condition subsequent
they must file for removal of this condition within 90days of 2 yr anni
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| if spouses cant petition together | can aply for hardship waiver under 216
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| employment based preferences | only categories you can double file in and on same day
1st preference, 2nd preference, 3rd preference, 4th preference, and 5th preference
an individual may not self-petition unless in 1st preference, usually only the employer
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| 203b- 1st preference | superstars and multinational executives:
they are a small percent of priority workers, around 28% of 140k that are aliens with EXTRAORDINARY ability in the science, arts, education, business, or athletics, as well as OUTSTANDING professors/researchers
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| priority workers | do not require labor certification
do not require job offer, may self-petition
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| 203b-2nd preference | members of professions with ADVANCED DEGREES and EXCEPTIONAL ability
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| members of professions with advanced degrees and exceptional ability | are required labor certification
are required a job offer, must be petitioned by employer unless
can waive labor certification by working in National Interest
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| labor certification | local test of job market- must get prevailing wage certification form from state/local agency
deermines not sufficient and able workers willing and qualified at the time and that employing an alien does not affect USC wages
cant tailor job to an alien
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| National Interest | labor done is deemed in national interest and there is not a servicer in the local market that can file for waiver.
does not harm USC by waiving n has extraordinary ability
exception for physicians working in underserved area for 5 yrs can get greencard
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| grounds of inadmissibility for 2nd preference | health-related, criminal, security related, etc...
and a lack of a labor certification
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| 203b- 3rd preference | skilled workers, professionals (with 4 year degrees and workers that can show labor is needed.) and OTHER WORKERS
need bachelors degrees, or 2 yrs training/2yr in school.
other workers have 10,000 limit of unskilled workers
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| 203b- 4th preference | special immgirants- are religious workers and some long term foreign employees of the government
no labor certification is required
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| 203b- 5th preference | employment creation visa for immigrant investors.
must invest 1million in enterprises- new or purchased and create at leat 10USC jobs for a conditional status of 2 years and cant just close it at the end.
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| department of labor heavily invovled in immigration through labor certification process | all about protecting the USC worker
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| labor certification | 212
procedures depend on whether the position is professional or non-professional
requires attestation procedure before allowing employer to file.(files regarding employee search be kept 5+ years)
can have unduly restrictive requirements
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| business necessity test | requirements must be reasonably related to the occupation in the context of the specific job, and the requirements must be essential to performance of the job.
require evidence of necessity for live-in status and language requirements.
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| diversity immigrants | over 50,000 visas in october with 100,000 letters sent out to possible recipients that then have to race to file before run out.
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| visa quota | evaluate six regions (africa, asia, europe, northamerica & bahamas, oceania south america & the caribbean) apply reverse percentage and then divide up by country and the amount offered by population
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| diversity imigrants | must have HS education or 2 yrs work exp.
must have visa processed by sept. 30
is only given to nationals of low incidence countries
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| nonimigrant categories | Work Categories
Educational Categories
Religious workers
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| work categories | E, H-1b, H-2a/b, H-3, O, P,
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| educational categories | F-1, M, J, L, L-1a/1b
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| religious categories | R-1
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| other categories | TN
V
K-3, K-2,K-1
S
U
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| E | treaty traders and investors
there must be a treaty and the trade must be substantial.
unlimited # of extensions
does not require initial petition or retaining foreign residence.
reserved for executives, managers, or special knowledge
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| H-1b [INA 101(a)(15)1-1hib] | workers (expensive for employers, they must pay fees)
department of labor is involved in regulation.(LCA)
workhorse for foreign nationals sending employees and is highly regulated
requires "specialty occupation" with a bachelors or 3 yr
dual intent
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| LCA | Labor condition application: is online and must attest to numerous promises regarding wage, non-displacement of american workers, notification, and maintaining files.
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| H-2a | agricultural labor or services for temp/seasonal
lesser skilled workers, highly regulated, temp labor cert.
must provide housing, work, and facilities
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| h-2b | temp/seasonal labor not found in this country
lesser skilled workers, highly regulated, temp labor cert.lesser skilled workers, highly regulated, temp labor cert.
must meet condition of seasonal
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| h-3 | trainee visa: excludes medical school
must show training not available in homecountry
benefits homecountry
is not a job
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| O | athletes and entertainers:
they staff support enters under O-2 and family as o-3
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| P | entertainment groups: must be culturally unique
support staff under p-2 and family under p-3
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| F-1 | students (spouse/kids: F-2)
getting degree as full time-full year
SEVIS
no more than 20 hr work weeks
may apply for work athorization
cannot go to public school if in or under HS education
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| M | vocational and nonacademic institutions
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| J | Exchange visitors: more regulated than F
counselors, au pair, visiting professors, med residency
212(e)
prevents brain drain from other countries: req. 2 year return to home after applying- may be waived
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| L | intercompany transferee (multi national-execs)
no # limit, companies have to be linked
worked 1 of past 3 yrs in foreign country
has special knowledge
waiver for 25mil assets and operating in 3 countries
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| L-1a | manager/exec up to 7 years
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| L-1b | special knowledge up to 5 years
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| R-1 | religious workers: unlimited #, adjudicate at border consulate
member of denomination for immediate 2 years preceeding
prove real faith group: if ordained, get green card
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| TN | Trade Nafta: available for 1 yr, less restrictive than H
may adjudicate at border but must see nafta officer
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| V | Life act: limited relief to long divided families, if petitioned before dec. 21st, 2000 and a 3 yr wait
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| S | snitch visa:
for those who share reliable information regarding criminal/terrorist activity
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| T | victims of human trafficking: if 15+ yrs, must comply with investigation/prosecution
demonstrate extreme hardship
has # limit
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| U | suffered abuse as result of violence (sprout off VAWA): must posses information and assist in investigation or prosecution
# limit
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| Fiance Visa | is a nonimmigrant category but processed like immigrant because intent is permanent (fiance status is temporay)
K-1 is a single entry fiance
K-2 is for children
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| 214(d) | must have met with person within 2 years of petition
must marry within 3 months of arrival
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| Marriage ethical issues | cant perpetuate fraud
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| grounds of inadmissibility | include national security, protection of economy, stemming the spread of some communicable diseases.
potential immigrant is subjected to a background check while a non-immigrant is not
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| public charge | monetary support of the potential immigrant is a big issue in both employment and family admissions processes.
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| May an LPR stay an LPR forever | yes, if alien marries a USC, eligible for naturalization after 3 years, everyone waits 5 years.
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| major difference between an LPR and naturalized citizen | naturalized citizen is no longer subject to immigration laws
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| how do we remove people | voluntary departure ( given 4 months to leave and may be able to return sooner)
fines
probationary period
jail time
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| 212- removal | whenever groung of inadmissibliity, always look for a waiver
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