IMMIGRATION LAW
Purpose: secure lawful permanent residence status. Prerequisite to citizenship.
DEFINITIONS:
Adjustment of status:
Admission: Visa just allows person to present herself for admission.
Alien: someone who is not a citizen of US. Don’t have certain rights.
Consular processing:
Deportability: being deportable means you are present in the US. You have access to US constitution. Only those who are inspected and admitted are subject to deportability. Otherwise inadmissible.
Grounds of Inadmissibility (212A): if client faces one of these grounds, all hard work to get in will be in vain unless there is a waiver. So look down the road.
Inadmissibility: 101
I94 card: tells how long can stay in US. Can be different from time of Visa. (e.g., get visa for 5 years does not mean can stay in US for 5 years, visa just good for that time. I94 will say visitor for 6 months. This is their status). Conversely you may have status for long time (say during school for 4 years). But second year in studies visa may expire. Cant kick you out. Your status determines how long can stay US. But if leave US will need a new visa to get back into the US (like a key).
Immigrant: coming to US more or less on permanent basis. Law presumes everyone wants to come here permanently (INA 214(b)).
Non-immigrants: coming to US temporarily (INA $$101(A)15-(a)-(v). Must have unrelinguished domicile abroad. $214b imposes burden to establish coming here temporarily. Many classes (see 1115 of Act)
Priority Date: Filing of petition itself generally establishes the priority date (ex. I140 if employment based). However, special class of immediate relatives are exempt. The are world wide and per country caps on immigration. Net result is to create arrearages.
Unlawful presence: 3/10 year bars. If overstay more than 6 months and leave US barred from coming into the US for 3 years. If overstay more than 1 year, barred 10 years.
US Department of Homeland Security: 3 subsets (1) USCIS (US citizenship and Immigration Services) oversees benefit side (2) USICE (US immigration customs enforcement; confront when go in & argue removal proceedings. (3) CBP: Border patrol (regulates ports entry)
Visa: something get stamped in passport. Allows you to get to US. Does not guarantee right to be in the US. 2 checks. First check is by consular oversees, second check is at port entry (immigration inspector) who gives white card (I94 card) if determines are eligible to enter US.
LAWS
Immigration & Nationality Act (INA) codified at Title 8 of US Code. (many times refer both to INA $ # (ex. INA $101(a)(15) codified in 8 USC $ 1101(a)(15)
Regulations (also often tailed to INA section) ex. INF $ 214, 8 CFR $214 give more detail about procedures.
Title 20, Labor Dept
Title 22, State Dept
WEBSITES
http://www.uscis.gov (USCIS; virtually everything in immigration starts with this) forms and fees section
http://travelstate.gov (State dept. processing of US visas and particular US embasseys) has visa bulletin
http://www.dhs.gov (department homeland security)
http://www.ice.gov (Immigration Customs Enforcement)
http://www.cbp. (customs borders protection)
http://doleta.gov/foreign (labor dept)
http://usdoj.gov/doir (US Justice; administrative decisions before Board Appeals)
http://www.findlaw.com
http://www.ilw.com free daily immigration news letter can sign up for. Articles by practioners; many articles archived
http://www.alia.org (need to be member, very good public and private side)
www.twmlaw.com (law firm website)
NONIMMIGRANT VISA CATEGORIES
Part214(b) of 8 CFR sets out the rules. People come to US to visit, work or study. $214(b) means nonimmigrant must convince consular offer has no intention to immigrate to US except for Hs and Ls. USCIS must first approve petition before visa can be given (includes H, L, K (fiancée), O, P (atheletes and , R (religious workers). H1 and H2 require even prior step before going to USCIS (labor certification from labor dept).
Nonimmigrant may apply for change of status for new classification.
B visas: visitor; usually 6 months. How long visa varies from country to country (101(a)14(b); 22 CFR $4131(a), in order to obtain, must convince consular officer intends to leave US at end of temporary stay and has adequate financial arrangements to carry out purpose of visit. (e.g., significant ties to country, great job, back account, immediate family members to return to, )
Visa waiver; 27 countries admitted to US w/out the visa. Person admitted 90 days. No change status permissible.
B1: visitor for business
workers coming to install equipement purchased outside US
B2: visitor for pleasure; tourisms, amusement, rest, medical treatment. No work permitted.
Permissible use is to check out school to see where want to study where have not yet selected a school. (*when someone applies at consular post, nice notation on passport and I94 “perspective student” makes change of status to student easier.)
Fiancée who wants to enter US to marry US citizen or permanent resident where intends to return to residence abroad soon after marriage
Where derivative status not otherwise available to certain dependents.
Lesbian and gay partners of nonimmigrant workers in US (someone coming as H1B) and can pursue extension based on principle partners status
Students admitted for period of training plus 60 days to prepare for departure
H1 B visa: “workhorse visa”; total 6 years getting 3 years at time, exception where an H1 has started green card and reached certain point, can extend (e.g., labor cert filed for national and pending 1 year, H1 holder can extend until green card adjucated. Eg., I140 filed and pending 1 year, same case or I140 approved but no visa #s available) temporary. 214b immigrant intent does not apply to H1 B. limit for fiscal year (oct 1-sept 30) (e.g. 65k), exceptions though like workers of higher education or related nonprofit organizations. If leave US for at least a year, can actually repetition and start whole thing again. Employer specific (e.g., work for company A and want to go to company B, need entire new H1 B petition). Can be for full or part time. Someone can hold 2 H1 B for 2 separate employers. Portability allows national when new case filed to start working for new employer at that time.
Earliest can file is 6 months before start date.
For Professional. Requires at least BA or higher degree or equivalent. Are professions require great skill but not professional so not good H1 B occupation. 3 years experience in field makes up for 1 year university (so can have 12 years of documented experience can substitute for 4 year degree) So need to look at everything to get up to level of BA.
Petitioner: needs IRS identification #. Don’t have to be big. Can be done for start up companies. However, of course easier to get for a bigger company (bias). Employer files petition for beneficiary with USCIS. Before petition, employer must have LCA (labor condition application with labor dept; form 9035 filed electronically. Basic information about proposed employment.)
Filing: Have LCA, Form I129 and Supp, I29W(statistical form), G28 and filing fee ($185), copies foreign national’s qualifying documents ( degrees, letters experience, translations if need), petitioners supporting letter (you prepare, describe employers business, revenue, position, how foreign national qualifies, where you make case) send to regional service center which covers area where services going to be performed.
Processing (about 3 months); if don’t want to wait, fast track process for additional $1000 (premium processing, will get response within 15 calendar days or have to refund the money). Can get RFE (request for further evidence)
Approval. If national abroad send approval, go into consulate and presentation is usually sufficient to issue visa. Check I94 to make sure accurate (correct classification). National reports to employer who does form I9, national responsible for applying for own social security number. Spouse and unmarried children given H4 visas, allow to accompany but not work here.
J visa:
K visas: admitted for 90 days, time to get married to US citizen.
L1 visas: intercompany transferees; typically 3 years depending on underlying petition. 1) common ownership (e.g., annual reports, stock certificates) between US and foreign entity (eg., UK w/ owns 50% of US company) Not just large companies but easier for large companies. (2) and capacity for which services performed. Employee must have worked at least 1 year abroad in capacity which is managerial (L1a) or requires specialized knowledge (L1b).
Granted for initial period 3 years and then get extensions in 2 year increments. USCIS is suppose to adjudicate Ls in 30 days. Can still use premium processing.
L1a can be here 7 years. Expedited route for green card. So more advantageous category.
L1b can be here 5 years.
L2 visas: spouses and children under 21. can work. File I765 (employment authorization)
O1 visa: Tedious; extraordinary ability or achievement in arts, business, science, education, athletics or entertainement, their support personnel or their families. Have to come to US to continue in their field. No numerical cap. # of extensions unlimited. Agent can file for musicians and actors. $214.20. An initial period 3 years permitted to complete event. Extensions in 1 year. Sustained or international acclaim in her field.
3 standards
--business, science, education; one of the very small % who have risen to top of their field; Must show at least 3 of 8 (1) receipt of nationally or inerantionally recognized price (2) membership in associations which require outstanding achievement of their members (3) published materials about the national in major profession or trade publications or major media (4) participation on a panel or judge of the work of others in the field (5) original scientific scholarly or business related contributions of major significance (6) authorship of scholarly articles in professional journals or other major media (7) current or previous employment in critical or essential capacity in organizations that have a distinguished reputation and (8) past or profer or high salary or other renumeration for services. Alternate types of evidence are permissible.
--Tv/motion picture; standard in middle; demonstrated record of extraordinary achievement. 3 out of 6 for artists but don’t have alternatives.
--foreign nationals in arts; distinction; lesser standard. What is art? Not limited to fine arts, visual, culinary and fine arts. Degree of skill substantially above that ordinarily encountered. Petitioner must submit evidence beneficiary is prominent or has been recipient of significant international awards (eg., oscar). Alternate evidence. 3 of 6. (1) performed or have perfored in lead in production or events as shown by reviews (2) natl or internal recognition by critical review (3) has and will perform lead critical role for organizations having distinguished reputation (4) has record of major commercial successes (5) major recognition (6) has commanded or will command high salary. Alternatives possible
I129 filed in service center having jurisdiction. O supplement also. Can only file 6 months prior to requesting need for alien services. Only US employer may file petition. Consultation with appropriate peer group necessary which gives opinion whether foreign national is extraordinary ability (advisory opinion does not bind). Can say yes or no objection. (in motion pictures, 2 consultations necessary).
O2 visa: accompanying the O1 and has critical skills or experience needed by the O1. Ex. Stunt artists, make-up artists, etc. Needed for production to continue. May not work apart from O1. Must show no foreign residence intention to abandon.
I129. H supplement. O2 can include multiple beneficiaries.
O3 visa: spouses and children of O1 and O2. May not seek employment in US w/out specific authorization.
PEOPLE WHO WANT TO STAY PERMANENTLY GREEN CARD
Not mutually exclusive. Can have petitions going in more than one category at a time.
FAMILY BASED PETITIONS ¾ of green cards based on this. http://travel.state.gov/visa_bulletin.html (monthly by state dept which calculate estimate of usage in categories and determine how long back log is). In addition to world wide limits there are country limits (India, Philipines, Mexico have different usage). Mere fact someone files petition does not give person right to be in US (still need temporary visa).
For spouses, conditional green card valid for 2 years. 2 check system. Interview when apply for green card and 2 years later to verify still married or divorce reasons other then immigration.
Immediate relatives: People who are children (under 21 and unmarried), spouses or parents of US citizens. No limit. Fastest and easiest way to get green card.
Unmarried sons and daughters of US citizens: Son or daughter (over age 21 and unmarried). Backlogs about 4 years.
Souses, minor children and unmarried sons and daughters of US permanent residents (green card holders): Backlogs about 4-5 years.
Married sons and daughters of US citizens:
Brothers and citizens of US citizens: Backlogs here can be 12 years for some countries! Depends on country.
EMPLOYMENT BASED PETITIONS
No backlogs here because “C” for current. 140k green cards per year. 5 categories
EB1: Priority Workers: no labor cert
EB1:1: Extraordinary ability: equivalent of O1 temp. Can self petition or can have employer sponsor. 3 out of 10 criteria. Similar to O1. (1) receipt of international prize (2) membership in organization which requires outstanding achievement to be a member (3) material published about the applicant in major trade publications (4) served as judge of others in the field either individually or on a panel (5) original material that is of major significance in the field (6) authorship of scholarly articles in the field (7) display of work in exhibitions or showcases (8) performing a critical or leading role (9) commanding a high salary or (10) commercial success.
Get really solid letters of support of people who are in position to evaluate beneficiary (no people like professors who work with directly). Better people who don’t know directly but have read work. Carry a lot of weight. Same with EB1:2
Merely meeting 3 out of 10 doesn’t guarantee. Quality as well as Quantity.
EB1:2: Outstanding Professors and Researchers: Need employer to sponser (either college or university or research laboratory that has distinguished reputation of its own). 3 years experience in teaching or research in field, position must be permanent. 2 out of 6 criteria similar to EB1:1. So similarity with EB1:1.
EB1:3: Multi nationals/executives and managers: equivalent to L1 visa. Only for managers and executives here though.
EB2: Advanced Degree Holders people who have degrees higher then BA. Alternatively, exceptional ability can qualify (but if have this probably try EB1). Lab cert required unless work in national interest.
Natl interest: (1) seek employment in area of substantial intrinsic merit (2) national in scope (3) work doing that much more important then requiring you to do labor cert.
(e.g, PhD in food science and developed first low fat frapucino drink—tied to obesity)
(e.g., samon fish studies in northwest.)
EB3: Skilled and unskilled workers: Labor cert required
- people whith no skills
- skilled with 2 years experience
- people with BA
Labor Certification: Majority of people getting employment based green card have to go through it. 3-4 years with labor cert even before can go to petition. Purpose is to protect US workers. Administered by US Dept of Labor. Employer must attempt to recruit qualified US workers, establish prevailing wage, that qualifications are qualified. Foreign national must demonstrate have qualifications before started to work for employment.
22 CFR Part 656 (need this reg if going to do labor certification; almost 30 years old); New regs PERM (electronic filing with 3-4 pages forms with employer attesting to all this).
www.doleta.gov (important site)
Form ETA750 Part A; (page 252 of handbook); Case gets filed in state where employment takes place.
Hands on how to do topic.
--job offers: must demonstrate occupation has shortage or workers or that specific job offer that has specific skills which are in short supply in geographic labor market. Depends on economy.
--requirements: Look at employers job description and decide what is reasonable to require. Identify must appropriate title. Then look at SVP to see how much experience need. Then look to see if foreign national had experience when hired by employer (cant train foreign national; some exceptions, eg., L1b specialized national experience gained abroad)
Dictionary of occupational titles; online at www.
--recruitment Print ads always required. Refers applicant directly to Dept of Labor which refers to employer who must screen applicants and describe why not qualified.
--prevailing wage: different then H1 practice. Actually examined here. 20 CFR 656.40 (for H1 655.731). Heirarchy;
EB4: Special Immigrants
EB5: Immigrant Investors: if have 500,000 and 1 million to invest and create 10 jobs for US workers
DIVERSITY GREEN CARD LOTERY
Set up 1990. Countries (10-15) which already send lot of immigrants not eligible. Every year State department looks at this. Encourage clients to file each year.
Just go to website and some basic information. 100k names picked out, then 12 month window to get green card. About 6-9 million people apply per year. Run program in November and find out April-May if win. Then have 12 month window to get green card.
APPLYING FOR PERMANENT RESIDENCE
After petition approved above. Can apply either in US Form I485 or can consular process (getting residence abroad). Consular processing is quicker and allows people to travel (those traveling want to consular process because once file for permanent residence can not travel unless maintain H or L status which allows travel out). Disvt consular processing requires police/military certificates.
Ajusting status entitles you to employment authorization when apply; can get it within 90 days. Huge benefit for people working w/out social security number.
Any issues of crimes examined here too. (would want to adjust them here)
INA245: clean case; came in inspected; can not have overstayed stay or violated status (e.g., working when not authorized). Except immediate relatives.
INA245K; employment based petitions for those who overstay status (e.g., overstay experation date) for less than 180 days.
INA245I: Big category; here illegally and entered w/out inspection but otherwise qualified and could get approved petition. Most people who file 245I must adjust here due to the bars (180days-3 year bar and 1year-10year bar; only perfects when travel out) so these people can not go out of country or will be bared. Students (F) or exchange (J) arnt given date certain experiration and interpreted that that they, although out of status, they have not accrued unlawful presence. So don’t accrue 3 and 10 year bars (212a9)
Paid 1000 fee per application. Abolished and resurrected twice.
--People eligible at first time canceled, can still get this if petition or labor cert filed for them Jan 14, 1988.
--Jan 15 1988 and April 30, 2001 also had to demonstrate in US Dec 31, 2000.
