Immigration Outline

Report
OVERVIEW OF IMMIGRATION
LAW
Lynette Parker, [email protected]
Clinical Supervising Attorney
Santa Clara University School of Law
Katharine and George Alexander Community Law Center
1030 The Alameda
San 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) Terminology
1.
2.
As all areas of law, immigration has its own shorthand
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.
2.
3.
4.
Citizen
Lawful Permanent Resident
Nonimmigrant
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.
2.
3.
Right of Land – Jus Soli – birth in
the United States – no restrictions
or other requirements.
Right of Blood – Jus Sanguinis –
citizenship bestowed on children of
existing citizens.
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.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
At least 18 years old
LPR for 5 yrs (3 yrs if married to & living with USC)/Not abandoned LPR status
Physically present in the U.S. for 2 ½ years of the 5 (or 1 ½ years of the 3)
Resided in the state in which filing the application for 3 months
Continuously resided in the U.S. from application to admission for citizenship
GMC for the 5 (or 3) years
Not barred as subversive, etc.
Attached to the principles of the Constitution
Complied with Selective Service laws
Knowledge of basic English
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 member
1.
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
All
Chargeability
Family-Sponsored
Areas
Except
Those
Listed
F1
F2A
CHINAmainland INDIA
born
MEXICO PHILIPPINES
01SEP06 01SEP06 01SEP06 01SEP93 01JAN01
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.
2.
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.]
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
• Battered Child
•
•
•
•
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
•
•
•
•
•
•
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.
2.
3.
4.
Victim of a crime (one of the crimes listed in INA §101(a)(15)(U)) in the
US [or that violates US law]
Knowledge of the crime (if a minor – parents/guardian have knowledge)
Has been, is being, or is willing to be helpful in the investigation and/or
prosecution of the crime
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.
2.
3.
4.
Temporary status for 4 years with work authorization
Possibility to adjust to LPR between 3rd and 4th year
Derivative family members can also get visas and EAD’s
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.
2.
3.
4.
Victim is in the US or port of entry as a result of human trafficking
Victim of severe form of trafficking in persons
Willing to cooperate with reasonable requests of law enforcement in the
investigation and/or prosecution of the trafficker (exception – under 18)
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.
2.
3.
4.
Temporary status for 4 years with work authorization
Possibility to adjust to LPR between 3rd and 4th year
Derivative family members can also get visas and EAD’s
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

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