OVERVIEW OF IMMIGRATION LAW

Lynette Parker, Lparker@scu.eduClinical Supervising Attorney

Santa Clara University School of LawKatharine and George Alexander Community Law Center

1030 The AlamedaSan Jose, CA 95126

408-288-7030

I. Immigration Law

CAUTION: • Everyone is impacted by immigration, from employers to individuals,

sports, entertainment, and news. So, welcome to a brief overview of Immigration Law. Caution: This knowledge is to be used with extreme caution. For everyone who is not licensed to practice law, you should not give any legal advice unless you are working under the supervision of an attorney. There are so many “but for”, exceptions, waivers, etc. that it is easy to complicate someone’s situation and/or make someone deportable. But when you are able to help someone, the rewards are enormous – giving an individual a safe place to live and a

family a secure future.

Statutory Law

Immigration is primarily statutory law – i.e. when in doubt go to the statute. The immigration statute is layer upon layer of immigration laws that have been passed by Congress over the ages. The basis for the current statute is the 1952 Immigration and Nationality Act – since amended by IRCA (Immigration Reform and Control Act of 1986), amended again by IMMACT90 (Immigration Act of 1990), amended again by IIRAIRA (Illegal Immigration Reform and Immigrant Responsibility Act of 1996), amended by Homeland Security Act (2001), by REAL ID Act (2005), plus many other administrative and legislative amendments. The Act is a monstrous creature, and the second most complicated statutory law in the U.S. after

tax law.

II. Basic Building Blocks

• A) Terminology1. As all areas of law, immigration has its own shorthand

2. Important to know the following:» INA – Immigration & Nationality Act» IIRAIRA – Illegal Immigration Reform and Immigrant

Responsibility Act» EWI – Entry without inspection» EAD – Employment authorization document» LPR – lawful permanent resident» TPS – Temporary Protected Status» VAWA – Violence Against Women Act» USC – United States citizen» GMC – good moral character» CIMT – crime involving moral turpitude

3. Actors in immigration law:– DHS – Department of Homeland Security– USCIS – United States Citizenship and Immigration Services

(formerly INS)– ICE – Immigration and Customs Enforcement (formerly INS)– CBP – Customs and Border Protection (formerly INS)– DOJ – Department of Justice– EOIR – Executive Office of Immigration Review– BIA – Board of Immigration Appeals– Etc.

B) Four main categories of immigration status in the U.S.:

1. Citizen

2. Lawful Permanent Resident

3. Nonimmigrant

4. Undocumented.

• (Others such as asylee, parolee, TPS, etc.)» When dealing with immigration law and questions, always ask

where does the person fall within these categories.

C) Admissibility:

• Immigration law states who should be allowed to enter the United States/given lawful status (admissible), who should be denied entry to/lawful status in the United States (inadmissible), and who should be asked to leave the United States after admission (removable/deportable).

III. CITIZENSHIP

• A) Citizenship Acquired at Birth

1. Right of Land – Jus Soli – birth in the United States – no restrictions or other requirements.

2. Right of Blood – Jus Sanguinis – citizenship bestowed on children of existing citizens.

3. Persons born in Puerto Rico, Virgin Islands, and Guam are US citizens.

• B) Non-citizen Nationals

• American Samoa and Swains Island – basically same as citizens, except more limited ability to transmit nationality to children

Citizenship Acquired at Birth by Blood

A. If both parents are U.S. Citizens, then at least one parent must show prior residence in the US

B. If one parent is US Citizen and one is non-citizen, then:

1. If parents were married at time of child’s birth, it depends on the law at the time of the child’s birth.

2. If parents were not married at time of child’s birth, then:

a. USC Mother – 1 year of prior physical presence

b. USC Father – clear and convincing evidence of relationship, legitimization, acknowledgement of paternity in

writing and under oath, or paternity established by court before child is 18, and agreement in writing to financially support child to 18 years

Citizenship Acquired After Birth - Naturalization

1. At least 18 years old

2. LPR for 5 yrs (3 yrs if married to & living with USC)/Not abandoned LPR status

3. Physically present in the U.S. for 2 ½ years of the 5 (or 1 ½ years of the 3)

4. Resided in the state in which filing the application for 3 months

5. Continuously resided in the U.S. from application to admission for citizenship

6. GMC for the 5 (or 3) years

7. Not barred as subversive, etc.

8. Attached to the principles of the Constitution

9. Complied with Selective Service laws

10. Knowledge of basic English

11. Knowledge of fundamentals of U.S. history and government» Possible waiver(s) based on age and length of LPR or disability

Derivative Naturalization/Citizenship (Child Citizenship Act of 2000)

1. Lawful admission of the child as LPR

2. Child is under 18, as of 02-27-2001

3. One parent is a naturalized USC or born in US, and child is currently residing in the US with USC parent

4. Child is in the legal and physical custody of US citizen parent.

IV. LAWFUL PERMANENT RESIDENCE

• A) Two main steps in applying for lawful permanent residence in the U.S. (green card)

1. Establish eligibility within one of the categories: e.g. If applying through a family member, you must establish your relationship to that family member and the lawful immigration status of that family member (citizenship or permanent residence.)

2. Qualify to become a permanent resident in the United States (not inadmissible) – not a public charge, not a harden criminal, no contagious disease, etc.

• B) Affirmative Applications versus Relief in Removal Proceedings.

V. AFFIRMATIVE APPLICATIONS FOR LAWFUL PERMANENT RESIDENT STATUS

• A) Relative Petitions – through a family member1. Immediate relatives (no limit on numbers of immigrants)

– Spouses of USC– Parent of USC (if USC is 21 and over)– Children of USC (children are under 21 and unmarried)

2. Preference relatives (assigned a priority date, which is the date the Petitioner (USC/LPR relative) filed the petition for the Beneficiary (the non-citizen relative who seeks to immigrate)

3. Derivative Petitions – only preference petitions may include family members – spouses (3rd and 4th pref. Only) or

children (all preference categories).

DOS VISA BULLETIN for August 2013

Family-Sponsored

All Charge-ability Areas Except Those Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

F1 01SEP06 01SEP06 01SEP06 01SEP93 01JAN01

F2A C C C C C

F2B 01DEC05 01DEC05 01DEC05 01FEB94 22DEC02

F3 08DEC02 08DEC02 08DEC02 01MAY93 01DEC92

F4 22JUN01 22JUN01 22JUN01 22SEP96 08JAN90

4. Spousal petitions

– marriage must be legal – all prior marriages must have been legally terminated

– absence of fraud – cannot marry solely for the purpose of obtaining an immigration benefit

– conditional status• if marriage is less than 2 years old at the time the

Beneficiary is granted LPR status, the status will be conditional for a period of 2 years• couple must jointly petition the USCIS to remove the conditional status within 90

days prior to the expiration of status• a waiver is available (3 possible waivers – bona fide marriage terminated; battery or

extreme mental cruelty; extreme hardship if removed from the country)

Definition of child

• born in-wedlock child• stepchild – (legitimate or not) if marriage takes place before the child is 18 years of age• legitimated child – legitimization (i.e., marriage of parents) occurring before the child is 18

years and while in custody of legitimating parent• born out-of-wedlock child – of natural mother• born out-of-wedlock child – of natural father – must prove bona fide parent-child

relationship • adopted child – adoption must be final before child is 16 years of age and requires 2 years

of legal custody and residence with adoptive parent; adopted child may not immigrate natural parents

• orphan – must be under 16 years, immediate relative of a USC, who has been abandoned, adopted abroad or coming to U.S. solely for adoption [note: sibling of orphan – if sibling is under 18]

B) Employment-based Petitions

[Note: Nonprofits rarely deal with this form of immigrating. Usually the province of the private bar.]• First Preference: persons of extraordinary ability, outstanding professors and

researchers, multinational executives and managers; no job offer required• Second Preference: persons of exceptional ability or with professional• or advanced degrees; job offer required, labor certification required.• Third Preference: skilled workers (requiring 2 years of training in non-• seasonal work), professionals and other workers; requires labor certification• Fourth Preference: special immigrants, including religious workers• Fifth Preference: Entrepreneurs with investment of $1 million

Step 2 – Admissibility / Process to Determine Admissibility:

• A) Adjustment of Status in the U.S.• I-130, I-140 or LC petition filed on or before 4/30/2001 and applicant pays

$1000 fine (INA §245i), or• Applicant is spouse, parent or child of USC and last entered the U.S.

legally, or• Applicant has maintained lawful status and has not engaged in

unauthorized employment• Applicant has an approved VAWA (I-360 Battered spouse or child)

petition.

* T, U and S visa holders can also adjust to permanent resident status in the US

 B) Consular Processing

1. Beneficiary returns to his or her home country to apply for an immigrant visa at the U.S. Consulate [Note: Pre-approval of waivers for grounds of inadmissibility are possible before the person travels abroad.]

2. Problem - unlawful presence bars (after 4/1/97)– Person in U.S. without status for more than 180 days up to 1 year after

4/1/1997 and who leaves the U.S. is barred from re-entering for 3 years. (Some persons are eligible for a waiver.)

– Person in U.S. without status for 1 year or more after 4/1/1997 and who leaves the U.S. is barred from re-entering for 10 years. (Some persons are eligible for a waiver. But NOTE: If person unlawfully re-enters or attempts to

re-enter the US after triggering the 10 year bar, he/she will not be eligible for a waiver until he/she has remained outside of the US for 10 years.)

C) If a visa is not immediately available (see chart on slide 16)– Beneficiary cannot immigrate until priority date is current– Beneficiary has no right to remain in the U.S. or to work

D) Changes affecting the Beneficiary’s status• Death of Petitioner – automatic revocation of approved relative petition and the Beneficiary

may no longer immigrate (except USC widow/er or for humanitarian grounds)• LPR Petitioner naturalizes – F2A converts to IR and F2B converts to F1• marriage terminated – spouse no longer eligible to immigrate (exception VAWA if within

past 2 years and connected to domestic violence).• Beneficiary turns 21 – no longer a child so must qualify as a son/daughter; if previously

filed as derivative, a new petition must be filed, but may recoup the principal’s priority date (F2A automatically converts to F2B; IR automatically converts to F1)

[Note: some sons and daughters qualify to immigrate as “children” under Child Status Protection Act.]

Beneficiary marries – IR child or F1 son/daughter automatically converts to F3 with same priority date; for F2A and F2B marriage automatically revokes the petition

E) Grounds of Inadmissibility

(These issues could make someone ineligible to become an LPR)• Crimes/Convictions [CIMT/Drug crimes]• Economic (Public Charge) [Long Term Care]• Health and Morals Related [HIV, TB, Mental Illnesses that pose a danger]• National Security/Political [Terrorism, Foreign policy implications]• Immigration Violations [Unlawful Presence, Unlawful Entry, False Claims, etc.]

F) Much immigration relief is discretionary

Self-petition under the Violence Against Women Act (VAWA)

• Battered Spouse• Spouse of a USC/LPR at the time the

petition is filed (or if divorce/ loss of status within 2 yrs connected to DV)

• Currently residing in the U.S. (with some exceptions)

• Was battered or subjected to extreme cruelty by the USC/LPR during the marriage, while living with the abuser in the U.S. (with some exceptions)

- Is a person of good moral character (GMC)

- Entered into the marriage in good faith

• Battered Child• Child of a USC/LPR (if turns 21 after

the petition is filed, OK as• long as not married son or daughter

of a LPR)• Residing in the U.S. (with some

exceptions)• Resided in the U.S. with the

USC/LPR abusive parent when the• abuse took place, need not be in

legal custody of the abuser (with some exceptions)

• Battered or subjected to extreme mental cruelty.

• GMC

As a Special Immigrant Juvenile

• Requirements– Dependent of a juvenile court/guardianship– Declared eligible for long-term foster care– Determined in administrative or judicial proceedings that it would– not be in the juvenile’s best interest to return to his/her native country– due to abuse, neglect or abandonment of the child

• Immigration expressly consents to granting of status (dependency order sought primarily for purpose

of obtaining relief from abuse or neglect and not for immigration purposes)

• Effect of Special Immigrant Juvenile status– Child gets LPR status– Child may not immigrate natural parents– Child may risk deportation if Immigration denies

application

Others – Registry, Diversity Visas, NACARA, etc.

POLITICAL ASYLUM - Definitions

• Overseas Refugees – a person outside of her country and not within the US or at a US border who is unable or unwilling to return to her home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

• Asylum Applicant/Asylee – a refugee who is physically present in the US (seeking asylum or granted asylum) or at a

port of entry to the US

POLITICAL ASYLUM - Requirements

• Persecution – threat to life or freedom of someone, or the infliction of suffering or harm upon those who differ in a way regarded as offensive

• Must show past persecution and/or a well-founded fear of future persecution [Note: A finding of past persecution creates a rebuttable presumption of a well-founded fear of future persecution.]

• Well-Founded Fear test:

1. Applicant must show that a reasonable person in her circumstances would fear persecution (objective component)

2. Applicant must show that she has a fear of persecution (subjective component)

POLITICAL ASYLUM – Requirements cont.

• On account of a protected ground – persecutor must be motivated to act because of someone’s race, religion, nationality, membership in a particular social group, or political opinion (must be one of the central reasons per REAL ID Act)

POLITICAL ASYLUM – Bars/Exceptions

• Must file within 1 year of entry to the US (some exceptions)

• May not be firmly resettled in another country• Must not pose a security risk to receiving country• No Serious nonpolitical crimes• Safe Third Country• Not a persecutor of others, etc.

POLITICAL ASYLUM - Caution

• If person has been stopped at border and ordered removed, USCIS will inform ICE, which might decide to reinstate the order of removal.

• Applicant must wait to file for work authorization until political asylum application has been pending for 150 days. EAD will be issued once application has been pending 180 days.

• Applicant can file for adjustment to permanent resident after 1 year of refugee/asylee status granted

• Refugee/asylee risks losing refugee/asylee status if she travels to her home country before becoming a US Citizen

• Note: Alternatives to Political Asylum – Withholding of Removal/CAT relief

RELIEF IN REMOVAL PROCEEDINGS

• Deportation v. Removal (whether the client is in deportation or removal proceedings is important because it affects what type of relief is available)

• Deportation – the charging document is an Order to Show Cause issued before April 1, 1997

• Removal – the charging document is a Notice to Appear issued on or after April 1, 1997

CANCELLATION OF REMOVAL

• LPR Cancellation - INA §240A(a):1. Lawfully admitted for permanent residence for not less than

5 years

2. Resided continuously for 7 years after having been admitted in any status, and

3. Not convicted of an aggravated felony

CANCELLATION OF REMOVAL cont.

• Non LPR Cancellation – INA §240A(b)(1):1. Physically present in US 10 years

2. Good Moral Character

3. Not convicted of offense under INA §212(a)(2) or §237(a)(2), (3)

4. Exceptional and extremely unusual hardship to a qualifying Relative – USC/LPR spouse, parent or child

CANCELLATION OF REMOVAL cont.

• Special Rule (VAWA) Cancellation – INA §240A(b)(2):

1. Three years physical presence

2. Battery or Extreme Mental Cruelty by USC/LPR spouse or parent, or person with whom there is a child in common

3. Extreme hardship if removed from US

4. Good Moral Character

CANCELLATION OF REMOVAL cont.

• Continuous Physical Presence is broken if:• ICE issues a charging document (OSC or NTA)• Removal/ voluntary departure in lieu of

deportation/removal• Respondent committed a crime which makes him or

her inadmissible or removable, or• Departure from the US for 90 days at any one time

or 180 days in the aggregate

OTHER RELIEF

• Deferred Action for Childhood Arrivals (DACA):• Allows applicant to remain and work in US for a temporary period of time

• REQUIREMENTS:• Under the age of 31 years as of June 15, 2012• Arrived in the US before 16th birthday• Has continuously resided in US since June 15, 2007 to present• Was physically present in the US on June 15, 2012• Entered without inspection before June 15, 2012, or lawful immigration

status expired as of June 15, 2012

OTHER RELIEF cont.

• Currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorable discharged veteran of the Coast Guard or Armed Forces of the US, and

• Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety

OTHER RELIEF cont.

• DACA – Other Information:• Place to apply – Non-detained applicants – USCIS; detained applicants -

ICE • Travel – No travel outside US after Aug. 15, 2012. Prior travel will be

assessed to determine if departure was brief, casual and innocent and did not interrupt continuous residence.

• Family members – No derivatives• Removal proceedings – Those in removal proceedings, with a final order,

or voluntary departure can apply.

OTHER RELIEF cont.

• U Visas (for victims of certain crimes):

Allows applicants to remain and work in US for a temporary period of time

OTHER RELIEF cont.

• U Visas (for victims of certain crimes):

Requirements:1. Victim of a crime (one of the crimes listed in INA §101(a)(15)(U)) in the

US [or that violates US law]

2. Knowledge of the crime (if a minor – parents/guardian have knowledge)

3. Has been, is being, or is willing to be helpful in the investigation and/or prosecution of the crime

4. Has suffered substantial physical or emotional harm as a result of the crime.

OTHER RELIEF cont.

• U Visas (for victims of certain crimes):

Benefits:1. Temporary status for 4 years with work authorization

2. Possibility to adjust to LPR between 3rd and 4th year

3. Derivative family members can also get visas and EAD’s

4. California public benefits available while petition is pending

OTHER RELIEF cont.

• T Visas (for victims of severe forms of trafficking in persons):

Allows applicants to remain and work in US for a temporary period of time

OTHER RELIEF cont.

• T Visas (for victims of human trafficking):

Requirements:1. Victim is in the US or port of entry as a result of human trafficking

2. Victim of severe form of trafficking in persons

3. Willing to cooperate with reasonable requests of law enforcement in the investigation and/or prosecution of the trafficker (exception – under 18)

4. Will suffer extreme hardship involving unusual and severe harm upon removal

OTHER RELIEF cont.

• T Visas (for victims of human trafficking):“Severe forms of trafficking” include:

a. Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age, or

b. The recruitment, harboring, transportation, provision, or obtaining of a person for labor or service, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt, bondage, or slavery

OTHER RELIEF cont.

• T Visas (for victims of human trafficking):Benefits:1. Temporary status for 4 years with work authorization

2. Possibility to adjust to LPR between 3rd and 4th year

3. Derivative family members can also get visas and EAD’s

4. California public benefits available while petition is pending, and federal public benefits once petition is approved

NONIMMIGRANT STATUS

• Temporary Visas to travel to US• For a specific period of time and a specific purpose• A-V visas (see INA §101(a)(15) for list• Single Intent v. Dual Intent• Extension of visa/Change from one NIV to another• Derivatives

* Processing – Consulate (some require initial

USCIS application)

* Visa Waiver Program (no extension/change

unless AOS as spouse of USC)

NONIMMIGRANT VISAS cont

• Nonimmigrant visa is the document needed to enter the US. The issuance and expiration dates constitute the window of time person is allowed to enter the US [Note: the visa will indicate whether it is good for one entry, more than one entry, multiple entries]

• I-94 (Arrival/Departure) Card indicates when the person entered, where, in what status

and the date by when the person must depart the US

OTHER IMMIGRATION notes

• Unless a non US citizen has been previously removed or has an outstanding order of removal, that person is entitled to request a hearing before an immigration judge

• Detention may be mandatory if the person has been convicted of an aggravated felony, otherwise the person may be requested to post bond

• The first hearing (other than a bond hearing) is the Master Calendar, where the person will ask for more time, or plead to the charging document (often volunteer attorneys are available to assist)

• An Individual (Merits) hearing is where testimony and witnesses may be presented in support of the application for relief

OTHER IMMIGRATION notes

• Appeals:

- Appeals from a decision of the Immigration Judge are usually heard by the Board of Immigration Appeals (BIA)- Petitions for Cert from decisions of the BIA may be

filed with the Federal Circuit Court of Appeals where case originated

Note: Some administrative decisions are appealed to the Administrative Appeals Unit

OTHER IMMIGRATION notes

• Comprehensive Immigration Reform 2013:• Any House and Senate bills need to be reconciled• A reconciled bill requires passage by both House

and Senate• President will sign and then within 150 regulations

should be promulgated• CIR 2013 bills focus more on education/employment

skills than family reunification

REFERALS

• General Immigration CBO’s (some charge sliding scale fees):- International Institute of Bay Area (SF, Redwood City, Napa, Oakland)- Catholic Charities (SF, Oakland, San Jose)- Asian Law Alliance (San Jose) and Asian Law Caucus (SF)- Center for Employment Training (San Jose) and SIREN (San Jose)- KGACLC/Santa Clara University (San Jose)- Hobbs Immigration Law Center (San Jose)- Step Forward Foundation (San Jose, Morgan Hill, Gilroy)- Canal Community Alliance (Marin Co.)

- Social Justice Collaborative (Oakland)

- Community Law Center (East Palo Alto)

- Stanford Immigrant Rights Clinic (Stanford)

- UC Davis Immigration Law Clinic (Davis)

- McGeorge Immigration Law Clinic (Sacramento)

REFERALS cont

• U Visa/VAWA Petitions ( some charge sliding-scale fees):

- Step Forward Foundation (San Jose, Gilroy, Morgan Hill)- Hobbs Immigration Law Center (San Jose)- Bay Area Legal Aid (Oakland, SF, San Jose)- International Institute of the Bay Area (SF, Redwood City, Napa, Oakland)- Catholic Charities (SF, Oakland, San Jose)- Asian Pacific Islander Legal Outreach (SF and Oakland)

REFERALS cont.

• T Visa Applications:- KGACLC/Santa Clara University (Santa Clara, San Benito, Monterey &

Santa Cruz Counties)- Asian Pacific Islander Legal Outreach (San Francisco and Alameda

Counties)- Bay Area Legal Aid (SF, Oakland, San Jose) – limited numbers- Asian Law Alliance (San Jose) – limited numbers