Immigration Law: The Basics

Peggy GleasonCLINIC

Immigration Law 101

What do you need to know to advocate for immigration reform?

Current immigration law unfair and provides insufficient channels to legal status

12 million people are undocumentedUnreasonable hurdles exist in the path to

legal status

True or False?

Anyone born in the U.S. is a US citizen even if her parents are undocumented

A lawful permanent resident may be deported

The undocumented parents of US citizen children may be deported

Someone born outside the US may be a US citizen

True or False?

Some people born outside the U.S. are U.S. citizens

Puerto Ricans are not U.S. citizensA person in immigration removal

proceedings has the right to a lawyerMarrying a U.S. citizen is an automatic

path to legal status

IMMSPEAK

Carla is waiting to immigrate in the 2A preference, and it may take 5 year before she gets her LPR card. She might age out unless the CSPA can help. Even then, she will need to examine whether she can adjust in the U.S. by filing an I-485, because she entered EWI and will need 245(i)

6

AGENDAAGENDA

Overview of Immigration TermsImmediate Relative and Preference SystemVisa BulletinDerivativesSources of lawDocumentation of Family Relationships

7

IMMIGRATION LAW IMMIGRATION LAW TERMINOLOGYTERMINOLOGYCitizens, nationals, aliensCitizens:

– Acquired by birth in the U.S. (or territories)– Acquired by birth abroad– Derived by naturalization of parent– Derived by residence with citizen parent– Naturalization

QUESTIONS

Is a person born to a diplomat in the U.S. a U.S. citizen?

Is a person born in the Mariana Islands a U.S. citizen?

9

ALIENSALIENSNonimmigrantImmigrant – Lawful Permanent Resident

(LPR)– Family-based visas– Employment-based– Refugee, asylum– Defenses to removal– Long residence– Special immigrants - Diversity visa lottery

Undocumented

Without legal status – because entered without admission or inspection (EWI)

Entered with legal status but overstayed or violated conditions of stay

11

AGENCIESAGENCIES Department of Homeland Security (DHS)

– Citizenship and Immigration Services (USCIS)

– Immigration and Customs Enforcement (ICE)

– Customs and Border Protection (CBP) Department of Justice

– Executive Office of Administrative Review (EOIR)

– Board of Immigration Appeals (BIA) Department of State (DOS) Department of Labor (DOL)

12

IMMIGRATING FAMILY IMMIGRATING FAMILY MEMBERSMEMBERSU.S. citizen may immigrate: spouse,

parents, children (any age), and siblingsLPR may immigrate spouse and unmarried

children (any age)Either as immediate relatives (no annual

limit) or in preference system (under annual quota)

13

IMMEDIATE RELATIVEIMMEDIATE RELATIVE

Spouse of U.S. citizenParent of U.S. citizen over 21Unmarried child under 21 of U.S. citizen

Question

U.S. citizen Mr. X wants to file a petition for his wife, Mrs. X, who is from Mexico. Mrs. X has a five-year-old child also born in Mexico. Does Mr. X need to file a separate I-130 for his five-year-old stepson?

15

PREFERENCE SYSTEMPREFERENCE SYSTEM

Unmarried son/daughter 21 or over of U.S. citizen (1st)

Spouse or unmarried child of LPR (2A)Unmarried son/daughter 21 or over of LPR

(2B)Married child (any age) of U.S. citizen (3rd)Sibling of U.S. citizen who is over 21 (4th)

16

DERIVATIVE BENEFICIARYDERIVATIVE BENEFICIARY

Only in preference system Does not apply to immediate relativesSeparate I-130 not required (or not

possible)Spouse or unmarried children (under 21) of

principal beneficiary in preference category

17

FAMILY RELATIONSHIPS

PETITIONER – U.S. citizen or LPRBENEFICIARY - seeking to immigratePARENT - includes stepparent, adoptive

parent (Hague rules for adoptive parents may apply)

BROTHER/SISTER - one parent in common

SPOUSE – valid marriage under local law

18

DEFINITION OF CHILD

LEGITIMACY– born in wedlock or mother is petitioner– legitimized before turned 18, or– bona fide parent-child relationship before 21

STEPCHILDREN - under 18 when parents marry

19

OTHER CHILD PETITIONSOTHER CHILD PETITIONS

ADOPTED CHILDREN - adopted before 16 and legal custody and residence for 2 years

ORPHANS - under 16 with appropriate legal steps

Both orphan and non-orphan adoption process changed by Hague Convention and U.S. Intercountry Adoption Act - April 1, 2008

Signatory countries (list at www.travel.state.gov) have new rules with more central control to prevent fraud

20

HAGUE CHANGESHAGUE CHANGES

Applies if adoption between two Hague countries and after effective date of 4/1/08

Special U.S. rules for transition caseswww.uscis.gov - Memo of 9/29/08Does not apply if the adoption is abroad

and two years of residency/custody with adoptive parent completed in child’s country

21

HAGUE PROCESSHAGUE PROCESS Home study by accredited provider from

adoptive parent’s state (federal guidelines) File Form I-800A to CIS with home study Packet sent to central adoption authority in

foreign country – referral File Form I-800 with CIS Consular officer provisional review Article 5 letter to central authority Adoption completed Consular approval of immigrant visa

Exercises on Preference CategoriesExercises on Preference CategoriesWhat Preference Category Is It?What Preference Category Is It?

1. Can Martha, an LPR, petition for her spouse? 2. Can Martha petition for her unmarried son?3. Does it matter how old the son is?4. What if the son gets married after I-130 filed?5. Can Juan, an LPR, petition for his mother?6. Can David, a USC, petition for his brother?7. Can David petition for his son?8. Does it matter if son is married or over 21?

22

APPLICATION PROCESSStarts with the filing of the I-130 petition,

either alone or in conjunction with an application for adjustment of status

Petitioner receives a receipt noticePetitioner later receives an approval notice

or request for more information (RFE)Approval notice contains “priority date”Eligibility to take next step depends on

whether immediate relative or priority date is “current” (visa is “available”)

24

PRIORITY DATE

QUOTA SYSTEM => 500,000/yearPRIORITY DATE => filing dateFILING => form signed, fee paidVISA CHART => issued every month by

the State Department and is used to determine visa availability

Priority date stays with petition and may be retained sometimes with 2nd petition

Visa Bulletin for June 2009

All areas China India Mexico Philippines

1st 08Nov02 08Nov02 08Nov02 08Oct92 01Sep93

2A 15Dec04 15Dec04 15Dec04 15May02 15Dec04

2B 01Feb01 01Feb01 01Feb01 01May92 01Apr98

3rd 08Oct00 08Oct00 08Oct00 22Oct92 01Jul91

4th 15Aug98 15Aug98 15Aug98 22May95 01Aug86

26

VISA BULLETIN PRINCIPLES VISA BULLETIN PRINCIPLES

Three Factors:– Priority date, which must be before date on

Visa Bulletin to be current– Country of chargeability– Preference category

Visa Bulletin does not progress steadilyVisa Bulletin may even retrogress

27

APPLICATION PROCESS APPLICATION PROCESS FOR LPR STATUSFOR LPR STATUSI-130 establishes qualifying relationshipBeneficiary applies for residency through

adjustment of status (in U.S.) or consular processing (at U.S. consulate abroad)

28

FIRST STEPFIRST STEP

File I-130 relative petitionI-130 form, documents, and fee Send petition and documents by mail to

appropriate service centerIf filing together with I-485, file with all

supporting documents and fees to address on www.uscis.gov site

29

SUPPORTING DOCUMENTSSUPPORTING DOCUMENTS

Proof of petitioner’s USC or LPR statusProof of family relationshipIf spouse case, G-325A and photos of

petitioner and beneficiaryProof of termination of prior marriage (if

applicable)Primary Documents: government issued,

contemporaneous with event are most credible

Foreign Affairs Manual – Where to Find Documents Overseas Volume 9 App C www.travel.state.gov/visa/reciprocity/index.htm Where documents found, what documents

available Ex: Argentina – tells you no divorce legal until

1987, since then legal if titled Divorcio Vincular Ex: Ethiopia – many docs only available if

resident of Ethiopia; divorce difficult to obtain, lengthy, must arbitrate

31

APPROVAL OF I-130APPROVAL OF I-130

Means eligible to apply for LPR status – Whether can do AOS or C/P depends on INA § 245

requirements Does not protect from removal Applicant must be given reasonable chance to

respond to negative evidence– Matter of Obaigena, 19 I&N Dec. 533 (BIA 1988)

If denied, can appeal to BIA Can file motion to reopen, 8 CFR § 103.5

Obstacles to Family Reunification

Under current law (since April 30, 2001) a person must enter U.S. legally in order to be able to apply for permanent residence here

A temporary provision called 245(i) expired on April 30, 2001, which had previously allowed people to pay a penalty fee if undocumented, and then they could adjust in the U.S.

Where can they apply?

If not allowed to apply in the U.S, must leave U.S. to apply for immigrant visa(LPR card) at the American Consulate in home country

Departure triggers a bar to reentry under INA 212 (a)(9)(b) – for having more than six months unlawful presence in U.S. (3 yr bar/ if have more than a year then it’s a 10 yr bar)

Unlawful presence bar

If someone with more than six months unlawful presence leaves the US and seeks to reenter, bar triggered

Can only be waived if person shows “Extreme Hardship” to certain close relatives who are Lawful Permanent Residents or US citizens

Other bars to Status

Prior removal, 10 year barIn absentia removal, 10 year barFalse claim to US citizenship, permanent

barMore and harsher grounds of deportability

and inadmissibility, fewer waivers available

Border Issues

Immigration Enforcement since 1980’s shut down Texas and California borders

Immigration flows to more remote regions (desert/mountains in Arizona)

Result: at least 400 people die per year crossing the border

Result: Migrants who would have gone home now stay in the U.S.