IMMIGRATION 101Overview

by Amy R. NovickShareholder and Senior Attorney

Maggio & Kattar11 Dupont Circle, NW

Suite 775Washington, DC 20036

“Be careful with your immigration laws, we were careless with ours.”

Chief Ben Wildhorse to Vice President Lyndon Johnson - 1961

 

THE PLAYERS: 3 main – DHS, DOS, DOL

1. DHS – Department of Homeland Security (Homeland Security Act of 2002)– consolidated functions and decisions– established 3 separate agencies (formerly INS)

a. U.S. Citizenship and Immigration Services (USCIS)

Responsible for adjudicating immigration benefits• Determining eligibility for status• Granting green cards• Asylum• Naturalization

b. Customs and Border Protection (CBP)• Inspection of people and goods at borders and ports of entry • E.g., inspectors at airports, seaports, etc.

c. Immigration and Customs Enforcement (ICE)Interior enforcement

• Investigates violations of immigration laws, enforces departures (deportation and removal)

Agencies that Administer the Law

2. Department of State (DOS)• Visa processing and issuance• Authority to issue visas (rules governing requirements are

promulgated and interpretation by DHS)• Security checks• Consular officials have nonreviewable discretion to deny

visas, with limited exceptions

3. Department of Labor (DOL)• Involved in those cases where US labor market is tested and

workforce issue involved • E.g., H-1B labor condition attestation process• E.g., Employment-based Immigrant visas where labor

certification is required• Investigates complaints against employers regarding working

conditions and wages

Agencies that Administer the Law(continued)

4. Department of Justice (DOJ)• Executive Office for Immigration Review (EOIR)

-Immigration Court, directed by Attorney General-Foreign nationals apprehended by CBP or ICE appear before immigration judge (not ALJ)

• Appeals to Board of Immigration Appeals (BIA), then to circuit courts• Office of Special Counsel

-Responsible for immigration-related employment discrimination• Office of the Chief Administrative Hearing Officer (OCAHO)

-ALJs hear anti-discrimination claims and cases where sanctions imposed on employers who illegally hire foreign nationals

• Board of Appellate Review (BAR) -Hears cased involving denaturalization

5. Department of Health and Human Services (HHS)• Limited set of decisions regarding unaccompanied minors in

removal proceedings

Agencies that Administer the Law(continued)

Sources of LawThe patchwork quilt of laws woven together

• Statutory 1790 Naturalization Act – established requirements for

citizenship

1882 Chinese Exclusion Act – repealed in 1943

1924 – National Origins Quota Act• Favored European immigrants

1952 Immigration and Nationality Act (INA)(McCarran-Walter Act)

• Comprehensive immigration legislation that forms core of contemporary immigration laws

• Established visa allocation preference system based on skills and family relationships

• List of excludable and deportable individuals

• Entry procedures

• System of relief from deportation

Sources of Law (continued)

1965 Amendments • eliminated national origins quota system

1980 Refugee Act

1986 Immigration Reform and Control Act • legalization and employer sanctions

1990 Immigration Act • family unity and employment creation• Generally literalization of law

1996-Present• Generally enforcement, mean-spirited laws

Sources of Law (continued)

• Regulatory 8 CFR – mostly INS/DHS, DOJ 20 – DOL 22, 42 – DOS 28 – DOJ

• Administrative BIA decisions – precedent, index and non precedent BALCA – Board of Alien Labor Certification Appeals AAO – Administrative Appeals Office – USCIS appellate OCAHO

• Judicial District Courts Circuit Court

Sources of Law (continued)

• Agency Memoranda, Cables, Manuals DHS Memos, Press Releases DOS Cables DOL Field Guidance (TALS) Foreign Affairs Manual – 9 FAM Field Manuals – Inspectors, Adjudications Immigration Judge Manual Instructions to forms

Sources of Law(continued)

Visa

I-94 Card

• Must Prove Eligibility For Visa

• If USCIS Approval Of Petition Is Required, Applicant Must Have Approval Notice & Consular Officer Will Request Electronic Notification From Kentucky

Consular Center

• Applicants Must Present Valid Passports & Supporting Documents

• Security & Name Checks

• Upon Issuance Of Visa, May Seek Admission To U.S.

• Exceptions – Most Canadians & Temporary Visitors From Certain Countries

Visa Application

Nonimmigrant Visa ClassificationsINA § 101 (a)(15)

Type of Visitor Classification Type of Visitor Classification

Diplomats, Their Families & Staff A-1, A-2, A-3, A-4, and A-5 Intra-Company Transferees L-1

Visitor for Business or Pleasure B-1/B-2 Vocational Students M

In Transit Through the U.S. C Parent of Special Immigrant N

Crewpersons D Individuals of Extraordinary Ability and Their Lackeys

O

Workers Entering Based Upon Treaty

E-1, E-2, E-3, H-1B1, and TN Culturally Specific Artists and Performers

P

Students F-1 Cultural Exchange Workers Q

NGO Reps, NGO Employees, Family Members& Household Staff

G-1, G-2, G-3, G-4, G-5 Religious Workers R

Temporary Workers & Trainees H-1B, H-2A, H-2B, & H-3 Government Informants S

International Media Representatives

I Victims of Human Trafficking T

Trainees, Interns, & Scholars J-1 Victims of Specific Criminal Activity

U

Fiance(e)s of US Citizens and Spouses of US Citizens

K-1 and K-3 Beneficiaries of Approved Immigrant Visas Awaiting Visas

V

Admission of NonimmigrantsINA § 214

• INA Section 214(a) gives the Attorney General the authority to determine the period of admission for nonimmigrants.

• Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b)(1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title…(INA Section 214(b).

• INA Section 214(c) sets forth additional documentary and evidentiary requirements necessary to obtain a nonimmigrant visa.

Visitors

B-1/B-2 – Visitor for business or for pleasure – 13 million issued annually

• Cannot work or obtain remuneration• Must depart at end of visit• Must maintain residence in a foreign country which national does not

intended to abandon

Business (B-1) Can engage in commercial transactions Negotiate contacts Consult with business associates Litigate Attend conferences Undertake independent research Limited honoraria permitted

Pleasure (B-2) Tourism Medical treatments Participate in amateur athletics

VWP – Visa Waiver Program• Available to foreign nationals from countries of low rates

of visa denials• Reciprocal arrangements with U.S. visitors• Individual need not apply for visa in advance• 90 days only• cannot change status once in the U.S.• other limitations or rights once in U.S.

Visitors(continued)

Educational

F-1 – Foreign Students• Students who engage in an academic full course of study• Admitted for duration of status (D/S)• Monitored by DSO (designated school official) at an approved

institution• Eligible for optional practical training (OPT) for 12 months after

completion of program• 29 mo. OPT for students in STEM fields: science, technology,

engineering and math.

M-1 – Vocational Students• Similar to F-1 but for vocational institutions

J-1– Exchange Visitors• Exchange students coming through programs specifically approved by

the State Department • Two year home residency requirement• Waivers are available

Educational(continued)

Work - Most CommonA Threat to the American Workforce or Fueling Economic Growth?

H – temporary workers and trainees

H-1B – for temporary professionals Must have sponsoring employer Persons who will engage in a specialty occupation, defined expansively Position requires specialized knowledge Must have a bachelor’s degree or higher or its equivalent (experience for

education is permissible) Employer must obtain certification from DOL in which employer attests

among other things, that the wage paid to alien is the prevailing wage or no less than wage paid to similarly qualified workers

Spouse and dependents cannot work Six year limit with exceptions 65,000 annual quota – can file April 1 for positions starting October 1, an

additional 20,000 H-1B visas are given to foreign nationals with advanced degrees from U.S. universities & colleges

• H-1B Employer Liabilities

• Pay government fees totaling $2320 per worker.• Higher salary to H workers when prevailing wage above the actual wage.• Notify workers of plan to employ H worker.• Liable for back wages to foreign worker.• Retention of Paperwork for all H-1B workers. • Inability to plan and allocate resources in the U.S.• Lost revenues associated with H-1B filings that are not selected for

processing.

Work - Most Common (continued)

• H-1B Workers Stimulate U.S. Economic Growth

“[W]hile nine out of 10 of our employees are citizens or permanent residents, our need to find specialized skills required to run our business successfully requires us to look at candidates from around the globe – many of whom are already in the U.S. studying at one of our great universities. It is no stretch to say that without these employees, we might not be able to develop future revolutionary products like the next Gmail or Google Earth.”

-Laszlo Bock, Vice-President for People Operations, Google.

National Foundation For American Policy Report found that for each H-1B employee that a company hires, employers with less than 5,000 employees hire an additional 7.5 workers. Companies with more than 5,000 employees hire an additional 4.7 workers and those entities with 5,000 plus workers hire an additional 4.0 workers.

National Foundation For American Policy Report confirms that employers will go out of their way by paying additional fees and higher salaries to hire H-1B workers because these workers have specific skill sets that are in short supply.

National Foundation For American Policy’s survey of companies reveal that the numerical limitations of H-1B visas result in companies resorting to locating jobs offshore due to an inability to find qualified U.S. workers.

Forty-six percent of surveyed companies stated that they “delayed or changed plans for projects due to the unavailability of H-1B visas.” Seventy-four percent reported that the lack of H-1B visas could affect their competitiveness against companies outside the U.S .

Work - Most Common (continued)

Work - Most Common(continued)

H – temporary workers and trainees (continued) H-1C – for certain nurses H-2A/H-2B – temporary or seasonal positions where no U.S. workers

are available H-3 – trainees in certain fields

E-3 temporary professional workers from Australia Similar to H-1B Spouses can work

L – intracompany transferees: managers, executives, or those with specialized knowledge Have been employed abroad by affiliate, subsidiary, branch, or parent to

corporation with U.S. entity Employed 1 year of last 3 years Spouse can work 5/7 year limit Direct pathway to immigrant visa as executive/manager

E-1/E-2 – Treaty Trader or Investor Must be national of country where reciprocal treaty of commerce or

navigation between U.S. and country of nationality Approximately 80 countries Spouse can work Does not need sponsoring employer Can be renewed indefinitely trade must be substantial E-2 Treaty Investor - investment in new commercial enterprise must be

substantial No set formula for determining “substantial” - $100,000 or more often

required

Work - Most Common (continued)

O – aliens of “extraordinary ability” in arts, science, education, business, athletics

• Must show sustained national or international acclaim• Must have sponsoring employer• Can be renewed indefinitely

P – performers – athletes and entertainers• Must be internationally recognized• Similar to O

Q – coming to participate in cultural exchange programs

R – religious workers

TN – Under NAFTA -- Canadian or Mexican professionals• Similar to H-1B but no limitations on length of stay

Work - Most Common(continued)

Work (Miscellaneous)

• A – diplomats, their families and attendants• G – employees of international organizations, their families and

domestic employees• I – journalists

Miscellaneous

• K – Fiancés • S – Persons who have information concerning criminal enterprise or

organizations• T – subjects of trafficking• U – victims of serious violent crimes• D – transit visas• C – crew members (airline, vessels)

Visa Bulletin for October 2008

Immigrant VisasAbout 700,000 immigrant visas available per year

• Employment-Based Categories – 140,000 visas- Employees Who Require Certification From the Department Of

Labor- Employees Who Are Pre-Certified

• Family-Based Categories- Immediate Relatives- Other Family-Based Categories

• Asylees & Refugees

• Special Immigrants

• Others (Section 13 of the Act, Cancellation of Removal)

Employment-Based Immigrant Visas

• First Preference Category- Multinational Executives and Managers- Outstanding Researchers- Extraordinary Ability

• Second Preference Category- Exceptional Ability Or Advanced Degree Professionals Whose Work Is In The

National Interest- Approved Labor Certification Applications For Positions That Require An

Advanced Degree Or Its Equivalent• Third Preference Category

- Approved Labor Certification Applications For Positions That Require Less Than An Advanced Degree, But At Least 2 Years Of Experience- Other Workers

• Fourth Preference Category- Religious Workers- Person seeking reacquisition of citizenship or permanent resident status.- Retired G-4 officer and family and the widow of G-4 employees or retired

employees- Panama Canal Treaty employees

• Fifth Preference- Employment Creation Visas

Family-Based Immigration§ 203(a) - allocation of immigrant visas

• 480,000 visas available for preference categories annually minus number of immediate relatives

• Persons who have a familial relationship with a U.S. citizen (USC) or lawful permanent resident )(LPR) may seek status through a petition filed by a family member

• INA defines all terms, including child, marriage, parent, siblings, etc.

• USC or LPR is petitioner; foreign national is beneficiary

Preference Categories

• Family 1st preference – unmarried sons and daughters of USC

• Family 2nd A preference – spouses or children of LPRs

• Family 2nd B preference—unmarried sons or daughters of LPRs

• Family 3rd preference – married sons and daughters of USC

• Family 4th preference – brothers and sisters of USC, who are at least 21 years of age

Child defined as unmarried individual under the age of 21 § 101(b)

Children can “age out” – become ineligible

CSPA – Child Status Protection Act (CSPA) of 2002 provides special ameliorative provisions

Immediate Relatives of U.S. Citizens (children, spouses, parents)

• Child, upon turning 21 – can file for parents

• USC spouse can file a petition on behalf of foreign national spouse

• Marriage-based petition

• Persons who have not been married for at least two years at time of applying for LPR status receive conditional resident status

• Must apply to remove condition within 90 days of 2nd anniversary of the granting of CR

• Must submit evidence that marriage continues to be valid

• Waivers are available if marriage has been terminated

Consular Processing

• CIS notifies Department of State National Visa Center upon approval of I-140

• National Visa Center will commence application process by sending forms to the applicant for completion

• Applicants must present police clearances from each country where they have lived since the age of 16

• Military records may be required• Visa interview will be scheduled when all necessary

documents have been assembled• Medical examination conducted in-country at the time of the

interview• Upon approval of visa application, immigrant visa is placed in

passport and the individual may enter the U.S. as LPR within 6 months of interview

Comprehensive Immigration Reform

• Increase temporary visa numbers (for both skilled and unskilled workers);• Eradicate visa per country quotas• Increase U.S. companies’ ability to compete for highly skilled workers in the

global marketplace• CIR facilitates assimilation into American society, not Amnesty• Credit individuals with strong work ethic and commitment to self-

improvement• UC San Diego study shows that illegal entrants would prefer to in guest

worker program• Facilitate Mexican government’s ability to develop long-term solutions for

the communities with high instance of illegal entry to the U.S• Recognizes reality of American economy’s reliance of immigrant workforce.

Steers American society from the Prohibition, zero tolerance mentality that has permeated throughout certain American communities

• Enforcement only strategy gives individuals no realistic opportunity to enter the U.S. legally

Proposals To Increase Enforcement Without Comprehensive Immigration Reform

• E-Verify- A Department of Homeland Security-sponsored survey raised serious

doubts about this program’s capacity to uncover document fraud.

- The report also pointed out that use of E-Verify will increase the likelihood of lawsuits against employers for alleged violations of the anti-discrimination and document abuse provisions of the Immigration & Nationality Act.

- E-Verify will use information submitted by employers to the Social Security Administration and the Internal Revenue Service that is inconsistent with information in these agencies’ systems as “proof” of an individual’s

ineligibility for employment. The DHS-sponsored report estimates an 8% error rate. If an employer does not take action to rectify the situation

quickly, DHS could levy sanctions against the employer for “knowingly” hiring an undocumented worker.

- To implement a nationwide mandatory E-Verify program, conservative estimates state that it would cost $765 million from 2009 to 2012.

Increased Enforcement Without Reform Undermines American Economic Stability

• SAVE Act (Also known as the Full Employment Act For Immigration Lawyers)- Would make mandatory the use of E-Verify for all employers.- Enactment of the SAVE Act would decrease federal revenues by $17.3

billion as undocumented workers are increasingly paid outside the tax system.- The SAVE Act would result in the hiring of new federal judges, increasing

direct spending by $30 million.

• Report by Center for Comparative Immigration Studies, UC-San Diego shows that tougher enforcement measures, including raids, detention and separation from U.S. citizen family members has not resulted in a decrease in illegal immigration.

• Undocumented workers are relocating families to the U.S., rather than returning to Mexico. Longer stays are the result of the increased dangers of entering without inspection through the use of “coyotes” or smugglers.

• Documentation is critical to migrants’ ability to assimilate. Documented workers from same communities in Mexico have a high school completion rate of 80%.

• American communities have begun to reverse prior anti-immigrant legislation because detrimental economic impact. (e.g. Arizona and Colorado guest worker programs).

Basic TerminologyINA § 101(a) sets out key definitions

Nonimmigrant vs. Immigrant

Key distinction – temporary vs. permanent and matter of intent

Presumption of intent §214(b)• Every alien shall be presumed to be an immigrant until he

establishes to a consular officer and immigration officer at the time of application for admission that he is entitled to a nonimmigrant status

• Immigrant – defined at INA §101(a)(15)Means every alien except an alien within one of the following classes of nonimmigrant aliens as listed in INA §101(a)(15)

Green Card• Used to be a green colored card that was issued to lawful

permanent residents (now a white card)• Often used interchangeably – erroneously – as work permit.

Lawful Permanent Resident vs. Citizen• LPR are here permanently but do not have the same rights as

USC• Can be deported or otherwise lose status• Can be subject to ex post facto laws• Cannot vote or serve on a jury• Not entitled to full panoply of benefits or jobs as USC• Must apply for citizenship (5 yr/3yr wait)

Unlawful Presence – important concept enacted in 1996• Overstayed visa and out of status• 3 year bar – 180 days• 10 year bar – 365 days• Triggered only if you leave the U.S.

Basic Terminology(continued)