- A number
§ An 8-9 digit alien registration number that is assigned to aliens who apply for adjustment of status. This number, similar to a social security number, is kept by the individual for life and does not expire.
- A visa
§ Visa for diplomats, officials, and employees of recognized foreign governments who are coming to the US on official business.
- A-1: Ambassadors, public ministers or career diplomats/officers and their immediate families. Also “career couriers.”
- A-2: Other accredited officials and employees of foreign governments and their immediate families
- A-3: Attendants, servants, and personal employees of A-1 or A-2s and members of the A-3’s immediate family.
- Adjustment of Status
§ Adjustment of Status (AOS) changes an alien’s valid, non-immigrant status to that of a legal permanent resident. The alien must be inside the US legally.
- Administrative Appeals Office (AAO)
§ Aliens whose application for Adjustment of Status has been denied can appeal within 30 days of the decision to the Administrative Appeals Office (AAO); also known as the Administrative Appeals Unit (AAU).
- Abandonment of Residency
§ A legal permanent resident may abandon their residency by:
- Surrendering their green card and signing a form I-407;
- Remaining outside of the US for more than one year;
- Living and working abroad but visiting the US every year.
§ See “Battered Spouse, Parent, or Children”
§ See “Spousal Abuse”
§ See “Violence Against Women’s Act (VAWA)”
§ See “Orphans”
- Advance Parole
§ Departing from the US while a visa application is pending will result in abandonment of the visa being applied for. Obtaining advance parole will allow the alien to temporarily leave the US without abandoning their visa application.
- Advanced Degrees
§ Aliens with advanced degrees are given preference for employment-based visas. An advanced degree is any US academic or professional degree higher than a Bachelor’s degree. A foreign equivalent is also acceptable. A US Bachelor’s degree plus five years of progressive work experience in the same specialty is equivalent to a Master’s degree.
- Affidavit of Support
§ Aliens seeking to enter the US or adjust status need a sponsor who promises to provide financial support for them so that the alien does not become a public charge. The declaration made by the sponsor is called the Affidavit of Support. For intending immigrants, the Affidavit of Support must be at least 125% of the federal poverty guideline for that year.
- Age-out Children
§ To be considered a child for immigration purposes, the child must be unmarried and under the age of 21. A child who turns 21 is no longer eligible for immigration benefits. This is called “aging out.” Congress passed the Child Status Protection Act (CSPA) on August 6, 2002 which allows someone to be considered a child for immigration purposes if they turned 21 while waiting for immigration processing.
- Aggravated Felony
§ Someone who is not a US citizen may be deported for committing an Aggravated Felony or a Crime of Moral Turpitude. Aggravated Felonies are considered more serious than Crimes of Moral Turpitude and thus have very few defenses. Aggravated Felonies include (but are not limited to): murder, rape, drug trafficking, weapons trafficking, money laundering, violent crimes, alien smuggling, theft, etc. Although a conviction is deemed a misdemeanor in criminal court, it may in fact be an Aggravated Felony for immigration and deportation purposes. An experienced immigration attorney will be able to advise on whether a criminal conviction is grounds for deportation. An immigration attorney should also be consulted before pleading guilty to any crime or pursuing naturalization.
- Agricultural Workers
§ US employers or an association of US agricultural producers may hire Agricultural Workers on a temporary or seasonal basis with an H-2A visa when US workers are not available.
§ Any person who is not a citizen or a national of the United States. Only “aliens” are subject to the immigration laws. Even a person who is a lawful permanent resident is considered an “alien” until he or she becomes a US citizen.
- Alien Registration Card
§ See “Green Card”
- American Competitiveness in 21st Century Act (AC21)
§ Increased H-1B fee from $500 to $1,000, as of Dec. 16, 2000. Exempted certain nonprofits, primary and secondary schools, institutions of higher education and governmental research organizations from paying the fee.
§ Increased H-1B cap to 195,000 for FY2001-2003.
- Visas obtained by fraud or misrepresentation are to be recaptured and restored to the cap
- Individual H-1B holders may only be counted against the cap one time within their 6-year period when the petition is filed
- H-1B’s employed at institutions of higher education or related nonprofit entities, or nonprofit or governmental research organizations are not counted against the cap.
§ Allowed unused employment-based visas t be used for persons from oversubscribed countries (e.g. India, China)
§ Allowed EB-1, EB-2 or EB-3 beneficiaries who are unable to obtain a visa due to per-country limitations to obtain a H-1B extensions beyond 6 years until their AOS application is adjudicated.
§ Permitted H-1Bs with a pending I-140 or AOS application to extend their status in 1-year increments beyond 6 years, where 365 days or more have passed since the filing of labor certification (if required) or the I-140 petition.
§ Allowed H-1Bs to accept new employment upon the filing of a non-frivolous petition by the prospective employer. The employee must have been lawfully admitted to the US and may not have been employed without authorization after entry. Applied to petitions filed on, before, or after Oct. 17, 2000.
§ Allowed EB-1, EB-2 or EB-3 beneficiaries, whose AOS applications have been pending 180 days or more to change employers without affecting their applications if the new job is in the “same or a similar occupational classification as the job for which the petition was filed”.
§ Permitted B visa holders to accept honorarium payment and incidental expenses for usual academic activity lasting no more than 9 days. May not have accepted payment or expenses from more than 5 institutions in previous 6 months.
§ Amended employment-creation (EB-5) law.
§ 3. Established legalization programs to grant amnesty and residency to qualified aliens:
- 3.a. General Legalization—Cutoff: Jan. 1, 1982.
- 3.b. Cuban-Haitian Adjustment—Cutoff: Jan. 1, 1982.
- 3.c. Registry—Cutoff: Jan. 1, 1910.
- 3.d. Farmworkers—Special Agricultural Workers (SAWS) and Replenishment Agricultural Workers (RAWS).
§ The consequence of a theory that the Executive Branch cannot remove aliens who fail to qualify for asylum, withholding of removal, or temporary protected status, and whom no other [[Page 42906]] country is willing to accept, is not only that such aliens may remain in the United States for the indefinite future, but also that they must be released wholesale from immigration detention absent special circumstances. See Zadvydas v. Davis, 533 US 678 (2001). This is clearly not the intent of Congress in enacting IIRIRA, and that approach would impair implementation of the foreign policy of the United States.
- Amnesty Appeals
§ Complete form I-694
- To notify US Citizenship and Immigration Services that an alien denied permanent residence, temporary residence or a waiver of grounds of excludability under the amnesty program provisions of the Immigration Reform and Control Act of 1986 (IRCA) is appealing the decision to the Director of USCIS.
§ The Board of Immigration Appeals (BIA) is the appellate body designated to review decisions of the immigration court and, in some instances, of DHS. The BIA is part of the Executive Office for Immigration Review (EOIR) which also contains an Office of the Chief Immigration Judge…The EOIR is within the US Department of Justice.
§ An issue that may arise for every immigration lawyer relates to a client’s encounter with law enforcement, whether it is a traffic stop, an arrest, a court proceeding, a conviction or dismissal. As criminal issues may affect applications for nonimmigrant and immigrant status and naturalization, as well as cause a client to be subject to the grounds of inadmissibility or removal, it is necessary for all immigration lawyers to know how to determine the seriousness of the consequences of a criminal offense.
§ The most important resource to have readily available to analyze any criminal issue is the INA.
§ For example, INA §§212 and 237 list the criminal offenses causing a client to be found inadmissible or deportable, and provide for possible waivers; the definitions section of the Act, §101, provides definitions—for immigration purposes—of conviction, sentence and aggravated felony, as well as the circumstances precluding a client from demonstrating good moral character. As long as you have your INA within reach, you do not have to worry whether you have accurately memorized all these lists.
- Arrest Warrant
§ Warrants are typically issued by courts but can also be issued by one of the chambers of the United States Congress or other legislatures (via the call of the house motion) and other political entities.
§ In the United States, an arrest warrant must be supported by a signed and sworn affidavit showing probable cause that a specific crime(s) has been committed by the individual(s) named in the warrant.
§ The Refugee Act of 1980 conforms US immigration laws with various UN conventions and protocols. A person within the United States may be granted asylum if he or she can demonstrate a “well-founded fear of persecution” based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group. A person who is outside the US may apply for refugee status based on this same criteria.
§ Which is the best temporary visa category for a professional athlete: B‑1, VWP, O-1A, O‑1B, or P-1?
§ There are four possible visa categories for foreign athletes: B-1 (Visa Waiver Program (VWP)), P-1, O-1A, and O-1B. To determine which visa category is appropriate for a foreign national (FN) athlete, it is useful to first ask a few key questions:
- Is the FN an individual athlete or part of a team?
- Does the FN actually compete?
- At what level will the athlete be competing?
- Does the FN or team have a record that can be documented of competing in the sport in the home country, the United States, or a third country?
- Is the individual athlete or team ranked internationally, or at any other level?
- Will the athlete be employed, or is he or she coming only to compete at one or more events for prize money only?
- B visa (B-1/B-2)
§ B-1: Temporary visitor for business. Any B-1 visitor for business may be admitted for a maximum of one year and may be granted extensions of temporary stay in increments of a maximum of six months each. Alien members of a religious denomination coming temporarily and solely to do missionary work may be granted extensions of one year each, as long as the work does not involve selling articles or soliciting/accepting donations.
§ B-2: Temporary visitor for pleasure. Any B-2 visitor for pleasure may be admitted for a maximum of one year and may be granted extensions of temporary stay in increments of a maximum of six months each. Alien members of a religious denomination coming temporarily and solely to do missionary work may be granted extensions of one year each, as long as the work does not involve selling articles or soliciting/accepting donations.
- Battered Spouse, Parent, or Children
§ Sec. 106 Employment Authorization for Battered Spouses of Certain Nonimmigrants
[8 USC. 1105a] <Leg Hist> 106(a) In general–In the case of an alien spouse admitted under subparagraph (A), (E)(iii), (G), or (H) of section 101(a)(15) who is accompanying or following to join a principal alien admitted under subparagraph (A), (E)(iii), (G), or (H) of such section, respectively, the Secretary of Homeland Security may authorize the alien spouse to engage in employment in the United States and provide the spouse with an ’employment authorized’ endorsement or other appropriate work permit if the alien spouse demonstrates that during the marriage the alien spouse or a child of the alien spouse has been battered or has been the subject of extreme cruelty perpetrated by the spouse of the alien spouse. Requests for relief under this section shall be handled under the procedures that apply to aliens seeking relief under target=”_blank”>section 204(a)(1)(A)(iii).
§ This rule also clarifies that those persons eligible for relief under new section 309(h) (as added by section 1505(c) of the LIFE Act Amendments) include the classes added to section 309(c)(5)(C)(i) of IIRIRA by sections 1506(b)(3) and 1510(b) of the VTVPA. These additional classes of eligible aliens include certain spouses and children who have been battered or subjected to extreme cruelty by a NACARA section 203 applicant, or by a United States citizen or lawful permanent resident.
The VTVPA also contains an additional provision making certain classes of battered aliens who are not covered by this rule eligible to submit a motion to reopen. See section 1506(c) of the VTVPA.
§ (d) Removing a 2-Year Custody and Residency Requirement for Battered Adopted Children.–Section 101(b)(1)(E)(i) of the Immigration and Nationality Act (8 USC. 1101(b)(1)(E)(i)) is amended by inserting before the colon the following: “or if the [[Page 119 STAT. 3057]] child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household”.
§ Aliens on whose behalf a US citizen, legal permanent resident, or employer have filed a petition for such aliens to receive immigration benefits from the US Citizenship and Immigration Services. Beneficiaries generally receive a lawful status as a result of their relationship to a US citizen, lawful permanent resident, or US employer.
§ The science of identifying or authenticating the identity of a living person based on his/her unique physiological or behavioral characteristics. These can be fingerprints, facial recognition, or iris scans. Failure to provide biometric identification if required at the US entry points may result in inadmissibility.
- Birth in US
§ Born within one of the 50 US states.
- Board of Alien Labor Certification Appeals (BALCA)
§ An administrative body which reviews denials of PERM labor certification cases and Department of Labor review cases. BALCA is the appellate body which reviews appeals for PERM denials.
- Board of Appellate Review
§ Individuals whose appeal in cases involving loss of nationality or the revocation of a passport was decided by the Board of Appellate Review (Board).
- Board of Immigration Appeals (BIA)
§ The part of the Executive Office for Immigration Review that is authorized to review most decisions of Immigration Judges and some types of decisions of Department of Homeland Security officers.
§ The amount of money set by the Department of Homeland Security or an Immigration Judge as a condition to release a person from detention for an Immigration Court hearing at a later date.
- C visa (C-1/C-2/C-3)
§ C-1 Immediate and continuous transit through US
- EG Crewmen joining ship.
- Passing in immediate and continuous transit through US
- In possession of ticket or other assurance of transportation to destination
- Sufficient funds for transit
- Has permission to enter third country
- Period of stay cannot exceed 29 days
- Cannot change status but can adjust under INS §245, 8 USC. §1255
§ C-2 UN Transit Visa
- Definition (1) Representative (from non-de jure and nonmember country) or expert that U.N. needs (2) Under U.N. headquarters Agreement” – No impediment to travel for representatives or those requested by U.N. (e.g. expert on refugee matters) (3) Inadmissible only under INA and if seeking entry pursuant to UN Headquarter Agreement can obtain INA waiver for these grounds. Criteria may be less stringent in C-2 “headquarters” cases (4) Given 29 days. Extension difficult. Must stay within NYC area and proceed directly to U.N. When leaving U.N. business must leave US (5) Exempt from overstay requirements of INA unless IJ or USCIS make status determination.
§ C-3 Foreign Government Transits
- Definition (1) Accredited official of foreign government (2) Passing in transit through US (3) US has reciprocal right in foreign country (4) Must be on official business
- Cancellation of Removal
§ Cancellation of Removal (under INA 240A) is available to two different types of respondents in immigration court – non-permanent residents and lawful permanent residents (with green cards). It is generally more difficult to have cancellation of removal granted if the respondent is not a lawful permanent resident, because the criteria for granting cancellation of removal are more demanding.
§ For non-permanent resident cancellation of removal, the respondent must show the following requirements are met. First, s/he has been continuously residing in the United States for the last ten years. Second, the respondent has had good moral character for the last ten years. Third, s/he has not been convicted of certain offenses. Finally, removal (deportation) would result in “exceptional and extremely unusual hardship” to the respondent’s spouse, parent or child, who is a US citizen or lawful permanent resident. The “exceptional and extremely unusual hardship” requirement is a difficult standard to meet.
§ Cancellation of removal for lawful permanent residents is one of the most common forms of relief from deportation for individuals with green cards. The following requirements apply: 1) five years of permanent residence (with a green card), 2) seven years of continuous residence, 3) no aggravated felony convictions. (For individuals that have been convicted of an aggravated felony, INA 212(c) may be available if the crime was committed before April 24, 1996.) If the three requirements are met, the immigration judge of the removal proceedings makes a discretionary decision whether to grant cancellation of removal. The immigration judge will determine whether the good in the respondent LPR’s life outweighs the bad. The immigration judge will analyze several different factors including family ties in the United States, extreme hardship to respondent and family and seriousness of the crimes committed among other things.
§ Cancellation of removal is a “one time only” form of relief. A respondent granted cancellation of removal under INA 240A cannot be granted cancellation again. Additionally, if a respondent has been granted relief under former INA 212(c), cancellation is not available.
- Cancel of Visas
§ Visa may be cancelled if visa holder:
- Person who overstays cannot be readmitted to US until s/he returns to consular office in the country of his or her nationality to obtain a new visa.
- If visa is automatically cancelled the person may apply for an INA waiver at the border.
- Status violation (e.g. working without a permit)
§ The USCIS declares a maximum number of H-1B visas that may be issued each year. Before 1998, H-1Bs were capped at 65,000. From 1999-2001, the cap was increased to 107,500 – 115,000. From 2001-2003, the cap was again increased to 195,000. In 2004, the cap was reduced to 65,000 with 6,800 of the 65,000 visas are reserved for nationals of Singapore & Chile. 1,400 of the 6,800 are reserved for Chile and the remaining 5,400 are reserved for Singapore. If unused, these visas are reverted back to the general pool. The H-1B cap does not apply to:
- workers employed by institutions of higher education or a related/affiliated nonprofit
- workers employed by certain elementary & secondary school districts affiliated with institution of higher education
- workers employed by nonprofit research organizations
- workers employed by government research organizations
- workers who have already been counted within the last six years (i.e., H-1B extensions with the same company, transfers from one H-1B cap-subject employer to another H-1B employer, or H-1Bs for those who have a Conrad waiver).
- aliens who have earned a master’s or higher degree from a US institution of higher education; 20,000 extra visas are available to such workers.
- Change of Status
§ Applies to non-immigrants moving from one non-immigrant status to another.
- Child Citizenship Act
§ The Child Citizenship Act (CCA) which becomes effective on February 27, 2001, amends the Immigration and Nationality Act (INA) to provide US citizenship to certain foreign-born children—including adopted children—of US citizens. In general, children who are less than 18 years of age and have at least one parent who is a US citizen whether by birth or naturalization-will benefit from this new law. Under the law, qualifying children who immigrate to the United States with a US citizen parent automatically acquire US citizenship; children who live abroad acquire citizenship by application.
- Child Status Protection Act
§ The Child Status Protection Act (CSPA) amended the Immigration Nationality Act (INA) by changing who qualifies as a child for purposes of immigrant. This permits certain beneficiaries (see the glossary for a definition of the term “beneficiary”) to retain classification as a “child,” even if he or she has reached the age of 21.
- Citizenship Exam
§ USCIS created standardized test forms for officers to administer. Test forms are weighted so all test versions have the same level of difficulty.
§ Applicants will still be required to correctly answer 6 out of 10 questions.
§ The civics exam is an oral exam where the applicant will provide an oral response.
§ The 100 civics questions and answers are publicly available atwww.uscis.gov/newtest.
- Civic Test
§ During your naturalization interview, a USCIS Officer will ask you questions about your application and background. You will also take an English and civics test unless you qualify for an exemption or waiver. The English test has three components: reading, writing, and speaking. The civics test covers important US history and government topics.
§ There are 100 civics questions on the naturalization test. During your naturalization interview, you will be asked up to 10 questions from the list of 100 questions. You must answer correctly at least six (6) of the 10 questions to pass the civics test.
§ You have two opportunities to take the English and civics tests per application. If you fail any portion of the test during your first interview, you will be retested on the portion of the test that you failed within 90 days.
- Conditional Residence
§ Lawful permanent residence for a temporary period of two years.
§ Consulate offices in foreign countries assist and protect US citizens abroad and issue visas to foreign nationals who wish to come to the United States.
- Consular Processing
§ When a visa is applied for outside the United States at a US consular post.
§ The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where–101(a)(48)(A)(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and101(a)(48)(A)(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
- Credible Fear
§ 235(b)(1)(B)(v) Credible fearof persecution defined.–For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.
§ an action or an instance of negligence that is deemed injurious to the public welfare or morals or to the interests of the state and that is legally prohibited.
- Crimes of Moral Turpitude
§ To qualify as a crime involving moral turpitude for purposes of the INA, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness or recklessness.
- Criminal Records
§ History of criminal activities recorded by the courts
§ Free for public to view
- Cross Chargeability
§ When a Green Card applicant is subject to a quota waiting list, but is the child or the spouse of persons born in a country with more favorable quota, the applicant may cross charge to the most favorable quota.
- Customs and Border Protection (CBP)
§ CBP is one of the Department of Homeland Security’s largest and most complex components, with a priority mission of keeping terrorists and their weapons out of the US It also has a responsibility for securing and facilitating trade and travel while enforcing hundreds of US regulations, including immigration and drug laws.
- D visa
§ Crewmember (Sea or Air).
- Death of Petitioner/Sponsor
§ When person petitioning the beneficiary or sponsoring the beneficiary dies.
§ Revocation of naturalization
- Department of Homeland Security (DHS)
§ The Department of Homeland Security has a vital mission: to secure the nation from the many threats we face. This requires the dedication of more than 230,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector. Our duties are wide-ranging, but our goal is clear – keeping America safe.
- Department of Justice (DOJ)
§ The United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.
§ The state of relying on or needing someone or something for aid, support, or the like.
§ The formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability.
- Derivative Beneficiary
§ 204.9(c Derivative beneficiaries. A spouse or child accompanying or following to join a principal immigrant who has requested benefits under this section may be accorded the same special immigrant classification as the principal alien. This may occur whether or not the spouse or child is named in the petition and without the approval of a separate petition, but only if the executive department under which the immigrant serves or served recommends the granting of special immigrant status to the principal immigrant.
- Derivative Citizenship
§ Citizenship conveyed to children through the naturalization of parents or, under certain circumstances, to foreign-born children adopted by US citizen parents, provided certain conditions are met.
- Derivative Status
§ Spouse or child whose status was based on the [status] application of the principal
§ In general, persons stopped at the border and found inadmissible are deemed to have no constitutional rights to release. Pursuant to statute, however, such individuals are eligible for release on parole.
- Disabled Persons
§ IMMACT90 eliminated excludability based on a person being certified by an examining medical officer as having a physical defect, disease, or disability that may affect his or her ability to earn a living.
§ Medical Disability Waiver – Persons who are physically or developmentally disabled or have a mental impairment are exempt from the English language and History and government requirements.
§ Application for Medical Disability Waiver – N-648 must be certified by the physician or psychologist under penalty of perjury and must contain.
- Full and complete description of the doctor’s medical diagnosis, including if applicable, the most recent Diagnostic Statistical Code which is the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition.
- An explanation of how the disability or impairment affects the applicant and prevent him or her from learning or demonstrating knowledge of English and/or US history and government. And
- The doctor’s conclusion whether the applicant is able to learn or demonstrate knowledge of English and/or US history and government
§ The adjudicator must ensure the N-648 form also contains
- Document explanation of origin, nature, and extent of the medical condition including the tests employed
- How the medical condition or impairment severely affects the applicant in regard to the required tests
- An attestation that the disability has lasted or is expected to last 12 months or longer and
- An attestation that the disability is not the direct effect of illegal drug use
- Discretionary Relief
§ A person seeking relief from removal may be eligible for several forms of relief including; voluntary departure, cancellation of removal, adjustment of status, asylum, withholding of removal, protection under CAT, certain waivers of removability or inadmissibility, nunc pro tunc permission to reapply after removal, estoppel, collateral attack on a previous removal order, deferred action, and private legislation.
- District Office
§ Office that serves a specific area
- Diversity Immigrants
§ A category of immigrants replacing the earlier categories for nationals of underrepresented countries and countries adversely “affected” by the Immigration and Nationality Act Amendments of 1965 (P.L. 89-236). The annual limit on diversity immigration was 40,000 during fiscal years 1992-94, under a transitional diversity program, and 55,000 beginning in fiscal year 1995, under a permanent diversity program.
- DNA Testing
§ Medical professional
- Domestic Violence
§ Domestic violence, also known as domestic abuse, spousal abuse, family violence, and intimate partner violence (IPV), has been broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation. Domestic violence, so defined, has many forms, including physical aggression (hitting, kicking, biting, shoving, restraining, slapping, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and economic deprivation.
- Drug Offenses
§ Crime related to the use, abuse, trafficking, and manufacture of drugs.
- Dual Citizenship
§ The concept of dual citizenship means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy. Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to US citizen parents may be both a US citizen and a citizen of the country of birth.
- Dual Intent Doctrine
§ Intent to perform the act that results in a crime and intent to commit the crime.
- DUI/DWI (Driving Under the Influence/Driving While Intoxicated)
§ A website that employers can use to apply for employment authorization of new employees.
- E visa (E-1/E-2/E-3)
§ An E visa is a non-immigrant visa that allows an alien to enter the US under the provisions of a treaty of commerce and navigation between the United States and the alien’s home country. The alien’s spouse and children may accompany or follow to join him/her. The alien must enter:
- Solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national;
- Solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital, or;
- Solely to perform services in a specialty occupation in the United States if the alien is a national of the Commonwealth of Australia and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under INA §212(t)(1).
- The E category therefore consists of three subcategories: treaty traders (E-1), treaty investors (E-2), and Australians working in specialty occupations (E-3). The E-3 classification is very different from the E-1 and E-2 classifications; it applies only to Australian citizens and more closely resembles the H-1B classification than the E-1 or E-2.
§ EB visas are employment-based visas.
§ The EB-1 does not require that the beneficiary obtain labor certification from the Department of Labor. There are three subcategories of the EB-1 visa: EB-1-1, EB-1-2, and EB-1-3.
- EB-1-1 is for persons of extraordinary ability in the sciences, arts, education, business, or athletics; the extraordinary ability is to be demonstrated by sustained national or international acclaim and by extensive documentation. Such persons are not required to have a prospective employer, but they must be entering to continue to work in their chosen field, and they must “substantially benefit prospectively the United States.”
- EB-1-2 is for outstanding professors and researchers with a minimum of three years’ experience in teaching or research who are recognized internationally in an academic discipline. These individuals must be coming for a tenure or tenure-track position, or for a comparable position at a university, institute, or with a private employer to conduct research. While no labor certification is required, there must be an offer of ongoing employment from the sponsoring employer.
- EB-1-3 – see “Managers, Multinational”
- EB-2 is for members of the professions holding advanced degrees, or for persons with exceptional ability in the arts, sciences, or business who will substantially benefit the national economy or culture, who are “sought by an employer in the United States.” Applicants may obtain a “national interest” waiver of the labor certification requirement that otherwise is required for the EB-2 category.
- The “national interest waiver” may be obtained when the attorney general “deems it to be in the national interest” to waive the requirement that the individual be “sought by an employer in the United States.” “Exceptional ability” is defined as an expertise beyond that which is normally found in the profession. Proving “exceptional ability” can be accomplished by demonstrating three of the following: (1) an official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; (2) at least 10 years of full-time experience in the occupation, documented by letters from current or past employers; (3) a license to practice the profession or certification for the particular profession or occupation; (4) evidence that the person has commanded a salary or other remuneration for services demonstrating exceptional ability; (5) membership in professional associations (there is no requirement that the professional associations require outstanding achievement for admission); or (6) recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. An advanced degree could include a bachelor’s degree plus five years of progressive work experience in their field.
- EB-3 is for skilled workers, professionals, and “other workers”—all of which require approved labor certifications. There is no national-interest waiver to the certification requirement available in this category. An EB-2 applicant also may apply under the EB-3 preference. “Skilled workers” are persons whose position requires a minimum of two years’ training or work experience. “Professionals” are positions requiring a baccalaureate degree or university equivalent. The “other workers” subcategory is for persons in positions that require less than two years’ training to engage in the work; it is limited to 10,000 visas. This preference category is complicated by the fact that the labor certification process has been plagued by extensive delays, and the “other worker” subcategory often has been backlogged. This is further exacerbated by Congress’s willingness to charge visa numbers from immigrant relief programs, such as NACARA, to this category. The NACARA program reduced the “other worker” category by 5,000 visas. Unavailability means that no visas irrespective of the priority date will be issued under that particular category. Visa numbers can become unavailable for a number of reasons, and it may be a temporary situation.
§ EB-4 is for “special immigrant” visas; the statute includes many enumerated special immigrants, of which only the major ones are mentioned here. The categories include certain religious workers, Panama Canal Treaty employees, Amerasian children, certain employees of US foreign-service posts abroad, certain retired employees of international organizations admitted to the United States under the G-4 nonimmigrant visa, and dependents of juvenile courts. 107 See 8 USC §1101(a)(27); INA §101(a)(27). The terms “certain employees” at foreign-service posts abroad and “certain retired employees” of international organizations is used because the statute has very specific requirements and does not cover all employees for special immigrant status.
- See “Immigrant Investor” for EB-5 visas.
- See “Consulate”
- Employment Authorization
§ A USCIS document, Form I-688B, evidencing the right of certain aliens to accept employment while in the United States. Certain nonimmigrant visa categories include, as an incident of status, employment authorization either with or without limitation to a particular employer or after application and approval by USCIS. Virtually all employment authorization for non-immigrants or undocumented aliens (where authorized) is limited as to time, and most is limited as to the nature of employer and employment. Other aliens physically present in the United States may have the right to apply for an Employment Authorization Document.
- Employment-based Immigration
§ Several paths can lead an individual to become a permanent resident of United States while inside the US One path: an employer can file a petition to sponsor someone’s immigration based on offering the person a permanent job. The immigrant visa or status process leads to permanent residence status in the US and is how an employer would apply for a prospective employee or current employee to reside permanently in the US to fill a permanent position. In most cases, the employer will start the process by filing an application for labor certification with the US Department of Labor (DOL). Once approved by DOL, the employer may then file a Form I-140 on behalf of the employee.
§ The preference categories are organized into a tiered structure of occupations ranging from those that are in the national interests of the US to religious occupations. Essentially this means that employment-based cases are ranked according to the importance of the particular profession to the national interests of the U.S, which depends upon the occupation’s economic, scientific, technologic, and social contribution to the United States. Below is a list of the employment-based preference categories and the work classifications that fall under them. The categories are as follows: EB-1, EB-2, EB-3, and EB-4.
§ Someone who is hired to entertain. Examples are musicians, actors, etc.
- Entry Without Inspection (EWI)
§ Illegal entry into the US
- Exceptional Hardship / Extreme Hardship
§ In order for an applicant to qualify for a waiver to avoid being deported the applicant must prove that their absence in the US would cause exceptional or extreme hardship to a US citizen spouse or child.
- Exchange Student / Visitor
§ An alien coming temporarily to the United States as a participant in a program approved by the Secretary of State for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.
§ Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, exclusion was the formal term for denial of an alien’s entry into the United States. The decision to exclude an alien was made by an immigration judge after an exclusion hearing. Since April 1, 1997, the process of adjudicating inadmissibility may take place in either an expedited removal process or in removal proceedings before an immigration judge.
- Expedited Removal
§ Expeditious deportation proceedings
§ State court expungements under rehabilitative statutes are no longer considered to ameliorate the immigration consequences of a conviction.
- Extension of Stay
§ extend the stay of an alien who qualifies
- Extraordinary Ability
§ extraordinary ability in the sciences, arts, education, business, or athletics that is demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability
- F visa
§ Academic Student
§ If you would like to study as a full-time student in the United States, you will need a student visa. There are two nonimmigrant visa categories for persons wishing to study in the United States. These visas are commonly known as the F and M visas.
You may enter in the F-1 or M-1 visa category provided you meet the following criteria:
- You must be enrolled in an “academic” educational program, a language-training program, or a vocational program
- Your school must be approved by USCIS
- You must be enrolled as a full-time student at the institution
- You must be proficient in English or be enrolled in courses leading to English proficiency
- You must have sufficient funds available for self-support during the entire proposed course of study
- You must maintain a residence abroad which you have no intention of giving up.
§ The F-1 Visa (Academic Student) allows you to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. You must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and your school must be authorized by the US government to accept international students.
- Family-sponsored Immigration
§ As a citizen of the United States, you may help a relative become a lawful permanent resident of the United States by obtaining what is often referred to as a “green card.” To do so, you need to sponsor your relative and be able to prove that you have enough income or assets to support your relative(s) when they come to the United States.
§ You begin the process by filing Form I-130, Petition for Alien Relative. This form establishes the family relationship that exists between you and your relative …Sometimes the I-130 can be filed together with an application for permanent residence (Form I-485, Application to Register Permanent Residence)
- Family Unity
§ Form I-817 is filed at Missouri Service Center if a person is eligible for family unity.
- S/he is the spouse or unmarried child under 21 of an eligible applicant at the time the I-817 is adjudicated
- s/he entered the US before Dec. 1, 1988 and resided in the US on such date; and
- If applying for Family Unity benefits on or after June 5, 2003, s/he is the spouse/unmarried child under 21 or a LIFE Legalization applicant who has filed an I-485.
- Fashion Models
§ Person who wears clothes to display fashion.
- Fault Divorce
§ A fault divorce occurs when one party is blamed by the other and viewed as causing the divorce. Traditionally, couples were not just able to divorce whenever they wanted to. One party to the marriage must have done something that warranted the other wanting to end the marital union. Today, however, all states recognize no fault grounds for divorce and many are doing away with the concept of “fault divorce” entirely. When fault still exists, however, it requires the spouse alleging fault to prove his or her assertions.
§ Most applications and petitions to the USCIS require filing fees.
§ an offense, as murder or burglary, of graver character than those called misdemeanors, especially those commonly punished in the US by imprisonment for more than a year.
§ A nonimmigrant alien coming to the United States to conclude a valid marriage with a US citizen within ninety days after entry.
- Final Order
§ The term “final order” now includes not only the final orders of immigration judges, but orders of administrative officers who have been delegated the responsibility for determining whether the person is deportable. It also includes order in which an immigration judge merely determines that a person is removable and issues a contingent order of removal as involuntary departure. It also includes reinstated orders.
- Following to Join
§ After 6 months, the relative is not “accompanying” the person, but rather, “following to join” him or her.
- That person seeking entry is the spouse or child of principal beneficiary before the beneficiary’s entry into the US
- That the spouse or child not precede the principal beneficiary to US and
- That the time period of child or spouse’s entry is more than 4 months and without time limit so long as child or spouse maintain their respective status.
- Foreign Divorce
§ Divorce outside of the US
- Foreign Medical Graduates / Foreign Physicians
§ Best Visa – Second Preference – Member of Professions Holding Advanced Degrees or Aliens of Exceptional Ability (EB-2 Category)
- There is a backlog for China and India
- Labor Certification and Job offer (may be waived)
- Position must require a member of the professions holding an advanced degree and the person must possess an advanced degree as shown by a master’s degree or its equivalent in education and work experience.
- Advanced degree will substantially benefit the US national economy, cultural or educational interests, or welfare of the US and whose services are sought by an employer in the US
- Foreign Residency Requirement
§ Certain J visa holders are subject to a requirement that they must return to their home country or country of last residence [for two years] upon completion of their training in the US before they are eligible to adjust status, apply for an immigrant visa, or apply for an H or L visa, or change status inside the US (except for change to A or G, or except for change to H-1B for physicians receiving waivers on the basis of a three-year waiver job)
§ Deceit, trickery, sharp practice, or breach of confidence, perpetrated for profit or to gain some unfair or dishonest advantage.
- Freedom of Information Act (FOIA)
§ In accordance with the Privacy Act of 1974, an individual may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those by the Department of Homeland Security.
- G visa
§ Foreign Government Officials to International Organizations
- G-1 Principal resident representative of recognized foreign member government to international organization, and members of immediate family.
- G-2 Other representative of recognized foreign member government to international organization, and members of immediate family.
- G-3 Representative of non-recognized or nonmember government to international organization, and members of immediate family
- G-4 International organization officer or employee, and members of immediate family
- G-5 Attendant, servant, or personal employee of G-1, G-2, G-3, G-4, or members of immediate family
- Good Moral Character
§ A finding of good moral character is both a statutory and a discretionary matter.
- Statutory – not good moral character if:
- Habitual drinker
- Polygamist, prostitute, smuggler, convicted of a crime of moral turpitude, multiple crimes or a drug crime.
- Person whose income was derived primarily through illegal gambling or who has been convicted of two or more gambling offenses
- Person who has given false testimony for purposes of obtaining any benefit under the INA.
- A person who has been confined, as a result of any conviction, to a penal institution for an aggregate period of 180 days or more
- A person who at any time has been convicted of a felony.
- Person who at any time has engaged in conduct related to Nazi persecution participation in genocide, or commission of acts of torture or extrajudicial killings.
- Person who falsely claims US citizenship or registers to vote in violation of restrictions is not barred from good moral character if:§ Each parent was a USC
§ The person permanently resided in the US prior to age 16
§ The person reasonably believed at the time of the statement, claim or violation that s/he was a USC.
- The above scenarios are not exhaustive
- May be based on criminal behavior not leading to an automatic bar
- Applicant’s general conduct, including the manner of entry into the country
§ If you filed a Form I-600A, Application for Advance Processing of Orphan Petition or Form I-600, Petition to Classify an Orphan as an Immediate Relative before April 1, 2008, you may be able to use the Orphan process, instead of the Hague Intercountry Adoption Convention process.
Grandfathering may continue even after the expiration of your Form I-600A approval, if you file a new Form I-600A before your current approval expires.
- Grandfathering allows you to continue to follow the Orphan process, rather than having to start over.
- The purpose of the grandfathered Form I-600A is to maintain the validity of the Form I-600A approval, and your grandfathered status, if you have not completed the adoption within the validity period of your original Form I-600A approval or an extension.
- You are eligible to file for a grandfathered I-600A if you meet the following requirements:
- You filed your original Form I-600A before April 1, 2008.
- You obtained an extension of the original approval, before the original approval expired.
- The extended approval period has not yet expired.
- You have not submitted a Form I-600 for each authorized child. See examples below.
- You file a new Form I-600A, with the filing fee and all necessary documentation, before the approval of your extension of the original approval expires. (Note: Forms I 600A and I 600 are NO LONGER filed at local USCIS field offices. File according to form instructions, available under the “FORMS” section.)
- You must file a Form I-600A extension before filing for a grandfathered Form I-600A.
- The grandfathered Form I-600A must be submitted, along with all associated fees and documentation, during the validity period of the I-600A extension, but no sooner than 90 days prior to its expiration. For example, if the extension on the approval of your prior Form I-600A expires on April 15, 2010, then April 15, 2010, is the very last day on which you can file a new Form I-600A and have it be grandfathered.
- Green Card
§ A “green card” allows an alien to permanently reside in the US To establish eligibility for permanent residency, a person has to establish statutory eligibility as well as meet strict quota controls on the numbers of persons who may be granted the particular status in any given year. In addition, the person must show that he or she is admissible or can qualify for a waiver of any applicable ground of inadmissibility. Whether and how a person may obtain LPR status will depend on an individual’s immigration posture at the time that he or she is making the application and whether he or she is within or outside of the United States. A person who is an LPR may live and work in the United States and travel in and out of the country relatively easily. An LPR, by definition, is not a US citizen, and, therefore, remains subject to all of the provisions of the INA. However, a person who has been admitted to LPR status for the statutorily prescribed period may be eligible to apply for US citizenship. A green card can be obtained by a non-citizen in a number of ways:
- Family-based immigrant visa: Persons who have a familial relationship with a US citizen or lawful permanent resident (LPR) may seek status through a petition filed by a family member or, under certain limited circumstances, through self-petitioning.
- Employment-based immigrant visa: Foreign workers may obtain permanent residence if they are able to establish that they have unique skills, or are being offered a job in the United that will not displace a US worker or have an adverse effect on the wages and working conditions of US workers.
- Asylees and refugees: Individuals admitted as refugees or granted asylum in the United States may be eligible to apply for LPR status within one year of admission (in the case of refugees) or of a favorable decision (in the case of asylees).
- Registry: Persons who have been in the United States continuously for a set period of time and can show “good moral character” may obtain LPR status.
- Cancellation of removal: Persons of good moral character who have been in the United States for 10 or more years and can show that their removal would result in exceptional and extremely unusual hardship to their spouse, parent, or child who is a US citizen or LPR may become permanent residents.
- Diversity immigrant visas: Winners of a visa lottery made available to citizens of a designated set of countries can become LPRs.
- Legalization and other special relief: Specific categories of persons may obtain LPR status through special congressional enactments in the form of an amnesty or “legalization” for set groups of people. Other individuals may obtain LPR status through private legislation.
- H visa
§ H-1 and H-2 visas are for temporary workers, and the H-3 is for trainees.
§ See below.
- H-1A Nurses
§ The H-1A visa no longer exists. The visa was to enable the admission of foreign nurses, but the program was discontinued.
- H-1B visa
§ This classification allows persons who will engage in “specialty occupations,” or are fashion models of distinguished merit and ability, or persons providing service related to the Department of Defense, to come to the United States to engage in work. Even though temporariness is part of the description of this category, H-1Bs need not establish that they have a foreign residence. Unlike most other visa-holders, H-1B non-immigrants are not prejudiced if they are pursuing permanent residency under one of the immigrant visa categories:
- The definition of a “specialty occupation” is very expansive. It is defined as a position that requires “the theoretical and practical application of a body of highly specialized knowledge” and a bachelor’s or higher degree (or its equivalent) for entry into the field. In addition to the substantive criteria, the H-1B visa carries an annual quota of 65,000. However, H-1Bs who are sponsored by educational institutions are neither subject to the numerical cap, nor are required to pay the normal processing fee.
- In order to qualify for the H-1B, the US employer must obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). That application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to state (“attest”) that it will comply with the requirement that: (1) the employer will pay a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area; (2) the employer will provide working conditions that will not adversely affect other similarly employed workers; (3) there is no strike or lockout at the place of business; and (4) notice of the DOL filing has been given to the bargaining representative or has been posted at the business.
- The H-1B nonimmigrant may be admitted for a period of up to three years, and extensions generally cannot go beyond a total of six years, except under certain circumstances. The H-1B employer must pay the reasonable cost of the employee’s transportation abroad if the person is dismissed before the end of the period of admission.
- Some of the exceptions to the six-year limit are for situations in which the H-1B is the beneficiary of an immigrant labor certification application or employment-based immigrant petition that has been pending for more than 365 days prior to the end of the six years, or if he or she is the beneficiary of such a petition and is unable to obtain permanent residency due to quota restrictions. The person is then eligible for extensions in one-year increments until the labor certification application or immigrant petition is decided, or a final decision is made on the individual’s application for adjustment of status or an immigrant visa.
- H-1B non-immigrants also may change employers upon the filing of a new application by the prospective employer as long as the H-1B was lawfully admitted into the United States and has not worked in the United States without authorization. Similarly, an H-1B who has filed an application for permanent residency and whose application has been pending for 180 days may change jobs as long as the new job is in the same or a similar occupational classification. This is called “portability.”
§ 101(a)(15)(H)(i)(b1) who is entitled to enter the United States under and in pursuance of the provisions of an agreement listed in section 214(g)(8)(A), who is engaged in a specialty occupation described in section 214(i)(3), and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under section 212(t)(1),
§ 214(i)(3) For purposes of section 101(a)(15)(H)(i)(b1), the term “specialty occupation” means an occupation that requires—
§ 214(i)(3)(A) theoretical and practical application of a body of specialized knowledge; and
§ 214(i)(3)(B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
- H-1C Nurses
§ An H-1C category exists for a limited number of nurses in very restricted circumstances. Otherwise, in order to gain temporary admission, nurses are required to fit under one of the other nonimmigrant categories or seek permanent residence through an immigrant work visa.
§ This visa is for professional nurses working in health care professional shortage areas; its availability is subject to sunset. It has been available to individuals coming to work temporarily as registered nurses who meet the requirements of 8 USC §1182(m)(1), INA §212(m)(1). A hospital is required to submit an attestation that the facility has taken significant steps to recruit and retain US nurses. No more than 33 percent of the nurses at any given facility can be H-1C nurses. The H-1C category is limited to 500 visas per year, and the recipient cannot have his or her status extended beyond three years.
- H-2A / H-2B
- H-2A and H-2B. Under the H-2A and H-2B programs, the person must be coming to the United States to perform service or labor of a temporary nature, and the employer must demonstrate that no US workers capable of performing the work are available. Persons coming to perform agricultural labor or services must work in a job that is of a temporary or seasonal nature and are admitted as H-2A visa-holders; nonagricultural workers are admitted as H-2B visa-holders. Agricultural employers can meet the certification requirements under the H-2A program if, by the half-way period in the season, they have been unable to find sufficient workers, thereby allowing them to fill the remaining positions with qualified foreign workers.
§ The H-2B program is restricted to an annual quota of 66,000, and is for persons coming to perform nonagricultural work of a temporary or seasonal nature (such as a unique construction job; a trainer in stained glass bending; and summer camp or resort employees such as seasonal cooks/chefs) if US workers cannot be found to take the position. Regulations describe the positions as either satisfying a seasonal need, peakload, or for a one-time occurrence or an intermittent need. A position is considered temporary based on the nature of the employer’s need, not based on the nature of the duties. The “temporary” certification, which is obtained from DOL, confirms that there are no US workers available for the position, that the hiring of the foreign workers will not adversely affect the wages and working conditions of similarly employed US workers, and that there is no labor dispute in progress. The application requires notice of the position for 60 to 120 days in the form of advertising, consultation with labor unions if applicable, and documentation to show that there has been an attempt to recruit US workers. The employer is required to pay the foreign worker for the cost of his or her transportation home if the person is dismissed before the end of the period for which the person was sought.
§ The H-3 classification is for individuals who are receiving instruction or training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment, with the exception of graduate medical training or education that falls within the J visa (described above). Often H-3 visa-holders are management trainees from a large multinational company, medical externs, and nurses who need a brief period of training that is unavailable in the home country. The H-3 visa is only available if the equivalent training is not available in the home country, the foreign national will not be placed in a position where US workers are regularly employed, and the training will help the foreign national pursue a career outside of the United States. Programs that are impermissible are those designed to recruit and train foreign nationals for staffing a US operation, or programs in which the sponsor does not have the capacity or plan to provide the training. There is potential overlap among H-3, B-1, and J-1 visas, and sometimes the person may qualify more easily for these other classifications (for example, when he or she receives a salary from abroad and is receiving training). Persons admitted under H-3 status may not remain for more than two years, and may not change or extend their stay, or be readmitted under an H or L visa until they have been outside of the United States for at least six months
§ Spouse or children of H visa holders.
- Habeas Corpus
- Harmless Error Doctrine
§ Violation of Department of Homeland Security/Department of Justice procedural rule or regulation under BIA does not per se invalidate deportation proceeding. Must have harmful prejudicial effect.
§ Listed below are the humanitarian benefits USCIS offers:
Refugee Status or Asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.
Battered Spouse, Children and Parents of US citizens or permanent residents may file for immigration benefits without the abuser’s knowledge.
Victims of Human Trafficking and Other Crimes may receive immigration status in certain circumstances.
Humanitarian Parole is sparingly used to bring someone otherwise inadmissible into the United States for a temporary period of time due to compelling emergencies.
Temporary Protected Status is granted to qualified people in the United States who are temporarily unable to return safely to their home country because of an extraordinary condition.
Special Situations occur where assistance may be available to people whose immigration application or status has been affected by natural catastrophes and other extreme circumstances.
- I visa
§ Visas for foreign media representatives
§ You may be eligible for the I-1, Representatives of Foreign Media, nonimmigrant visa, if you:
- Represent a foreign information media outlet (press, radio, film, or other foreign information media)
- Are coming to the United States to engage in this profession
- Have a home office in a foreign country
- Occupations under this category include reporters, film crews, editors and other similar occupations. Any spouse and children may accompany or follow to join an I-1 nonimmigrant.
§ All US employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form.
§ Unlawful conduct
- Immigration and Customs Enforcement (ICE)
§ Immigration and Customs Enforcement is the principal investigative arm of the US Department of Homeland Security (DHS) and the second largest investigative agency in the federal government. Created in 2003 through a merger of the investigative and interior enforcement elements of the US Customs Service and the Immigration and Naturalization Service, ICE now has more than 20,000 employees in offices in all 50 states and 48 foreign countries.
- Immediate Relatives
§ Include spouses, parents, or children.
§ A person who migrates to another country, usually for permanent residence.
- Immigrant Investor
§ EB-5 is for employment-creation (investor) visas. It provides conditional residency for those who after November 29, 1990, invest $1 million in a new commercial enterprise that employs at least 10 full-time US workers. Conditional residency means that the beneficiary receives temporary residency for a two-year period, at which time an application is made to remove the condition and grant permanent residence. Within 90 days of the anniversary of the grant of conditional resident status, the person may request that the condition be removed so that he or she will become an LPR. In order to receive permanent residence, the applicant must have “substantially met the capital investment requirement.” The visa allocation for this category is 7.1 percent of the total number of employment-based visas set aside annually, of which 3,000 are reserved for “targeted employment areas.” Targeted employment areas are geographic or political subdivisions designated by a state government as areas of high unemployment. A lesser investment of $500,000 may qualify the investor if the investment is in one of the targeted employment areas. These include rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average. The investment must be personally connected to the person seeking the status and may be made from jointly held accounts with a spouse. Under the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, 114 Pub. L. No. 102-395, §610, 106 Stat. 1828. a pilot investor program was established that relaxes the standards for the investor. 115 8 CFR §204.6(m). The program is subject to sunset. As of this writing, it has been extended through March 6, 2009, by means of a continuing resolution. Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (H.R. 2638), §144 (2008). The pilot program permits investments through “regional centers” with a relaxed job-creation requirement. The regional centers apply to USCIS, demonstrating how the program will promote economic growth. Upon approval, a foreign investor’s investment in one of these centers may qualify him or her for the immigrant visa. Of the 10,000 EB-5 visas available annually, 5,000 are set aside for those who apply under the pilot program.
- Immigrant Visas
§ See “Green Card”
- Immigration and Customs Enforcement
§ See ICE
- Immigration and Nationality Act
§ The Immigration and Nationality Act, or INA, was created in 1952. Before the INA, a variety of statutes governed immigration law but were not organized in one location. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law. The Act has been amended many times over the years, but is still the basic body of immigration law.
§ The INA is divided into titles, chapters, and sections. Although it stands alone as a body of law, the Act is also contained in the United States Code (USC.). The code is a collection of all the laws of the United States. It is arranged in fifty subject titles by general alphabetic order. Title 8 of the US Code is but one of the fifty titles and deals with “Aliens and Nationality”. When browsing the INA or other statutes you will often see reference to the US Code citation. For example, Section 208 of the INA deals with asylum, and is also contained in 8 USC. 1158. Although it is correct to refer to a specific section by either its INA citation or its US code, the INA citation is more commonly used.
- Immigration and Naturalization Service (INS)
§ Also known as United States Citizenship and Immigration Service (USCIS).
- Immigration Court
§ The Los Angeles Immigration Court falls under the jurisdiction of the Office of the Chief Immigration Judge which is a component of the Executive Office for Immigration Review under the Department of Justice.
§ To accuse (a public official) before an appropriate tribunal of misconduct in office.
§ To confine in or as if in a prison.
§ Classes of persons ineligible for visas and admission to US
§ There are various health related, economic, criminal, moral, security related, and misc ground for inadmissibility.
- Ineffective Assistance of Counsel
§ Lozada Requirements:
- Motion supported by affidavit setting forth agreement and representations by counsel
- Inform counsel against whom the claim is made and give counsel opportunity to respond
- Reflect in motion whether bar charge has been filed and if not, why not
- In most courts there must be a showing of prejudice even where the above requirements are met.
§ Remedy: remand the case to the BIA with instructions that the agency apply the law in existence at the time the claim should have been made.
- Inspection and Admission
§ The overall system for arrivals and departures is the Arrival and Departure Information System (ADIS), which is a centralized database that reports each person’s arrival and departure from the US.
- Intending Immigrant
§ There is a legal presumption that all persons seeking entry are immigrants.
§ Applies to persons seeking the following visas:
§ Exceptions are:
- J visa
§ Exchange Visitor Visa. The alien must have sufficient funds, be fluent in English, and maintain sufficient medical insurance for accident & illness for participant and J family members in a minimum amount of $50,000 per accident or illness and residence abroad. It is a non-immigrant visa for:
- Professors or research scholars
- short-term scholars
- bona fide trainees or interns
- college or university students
- secondary school students
- nonacademic specialists
- foreign physicians
- international visitors
- Government visitors
- Camp counselors
- Au pairs
- Summer students in travel/work programs
- Joint Sponsor
§ If the petitioner does not meet the financial qualifications to petition the beneficiary, the income of certain other household members can be added to their income level if they sign a contract on Form I-864A, Affidavit of Support Contract Between Sponsor and Household Member, agreeing to make their income or assets available for the support of the relative applying for permanent residence.
§ If petitioner still cannot meet the financial qualifications, another person must complete a separate affidavit of support to become a joint financial sponsor of the person’s immigration. The joint sponsor must meet all sponsorship requirements separately, including the minimum income requirements for his or her household, and must be willing to assume, along with petitioner, financial liability for the sponsored immigrant(s).
§ All sponsors must be US citizens or permanent residents, be at least 18 years old, and be living in the United States (including territories and possessions) when they file the affidavit of support.
- Juvenile Delinquency Act
§ The Federal Juvenile Delinquency Act (FJDA) defines a juvenile as a “person who has not attained his 18th birthday” and defines juvenile delinquency as “the violation of a law of the United States committed by a person prior to his or her 18th birthday which might have been considered a crime if committed by an adult.”
- An alien fiancé of a United States Citizen (USC)
- Seeks to enter US solely to conclude a valid marriage with petitioner
- Marry within 90 days after entry
- Minor children of alien fiancés can accompany them (K-2)
- K-3 (Spouse of United States Citizen) K-4 (unmarried child)
§ Established a K-3 visa for a person who has a valid marriage to a United States Citizen (USC), the USC has filed an I-130 petition on his or her behalf, and s/he seeks to enter the US to await the approval. Includes minor children of the beneficiary. If the I-130, IV or AOS is denied, the authorized admission under the K-3 terminates 30 days after the denial.
§ An unmarried child of a K-3 applicant need only establish that s/he is the child of a K-3 to receive a K-4 visa. Does not need a separate petition by USC.
§ Applicant is exempt from INS vaccination requirement and labor certificate.
- L visa
§ The L-1 visa for “intracompany transferees” has a long history under the INA. Like the H-1B, it is designed to facilitate the admission of professionals into the United States. The visa specifically facilitates the admission of multinational corporate executives and managers, or persons with specialized knowledge. The person must have been employed abroad by the parent, branch, or subsidiary corporation of the company continuously for one year out of the prior three years. The benefit is not limited to for-profit corporations or partnerships, so it may be sought by a charitable, religious, or other nonprofit organization. Like the H-1B, the L-1 visa does not preclude the person from seeking lawful permanent residence while pursuing or being present in the United States on an L-1 visa. The terms “managerial” and “executive capacity” are defined in the statute, and “specialized knowledge” is defined by the statute (the L-1 Visa Reform Act of 2004) and regulations. The statute defines managers as persons who manage a function or oversee a component of a company; establish the goals and policies of an organization or a major part or function of an organization; exercise wide latitude of discretionary decision-making; and who receive only general supervision or direction from higher-level executives. An employee with specialized knowledge is defined in the statute as a person with “knowledge of the company product and its application in international markets or [with] . . . an advanced level of knowledge of processes and procedures of the company”. The L-1 visa has no annual quota, and the visa-holder may remain in the United States for a period of five to seven years. The spouse and children of the L-1 visa-holder are admitted as L-2s, and they are permitted to work.
- Labor Certification (LC)
§ Certification by the Department of Labor (DOL) that there exists an insufficient number of US workers who are able, willing, qualified, and available at the place of proposed employment, and that employment of the alien for whom certification is sought will not adversely affect the wages and working conditions of US workers similarly employed (the employer must therefore offer the job at the “prevailing wage” in the particular market). A labor certification does not entitle the alien to admission; a visa petition must still be filed on his or her behalf. In December 2004, DOL issued its long-awaited PERM regulations which, effective March 28, 2005, established a new system for filing labor certifications.
- Labor Condition Application (LCA)
§ An attestation by an employer seeking to hire an H-1B nonimmigrant to four conditions of employment: (1) that the employer is paying the H-1B nonimmigrant at least the higher of the actual wage paid by the employer to others in the same occupation with similar experience and qualifications, or the prevailing wage for the occupation in the geographical area of the work site; (2) that the employment of the H-1B nonimmigrant will not adversely affect the working conditions of similarly employed workers; (3) that there is not a strike, lockout, or work stoppage in the occupation for which the H-1B nonimmigrant is being hired; and (4) that notice of the hiring of the H-1B nonimmigrant has been provided.
- Lawful Permanent Residence (LPR)
§ Any person not a citizen of the United States who is residing the in the US under legally recognized and lawfully recorded permanent residence as an immigrant. Also known as “Permanent Resident Alien”, “Resident Alien Permit Holder” and “Green Card Holder.”
§ An applicant for legalization must first apply for temporary residence. If successful, s/he may thereafter apply for permanent residency.
- LIFE Act (Legal Immigration and Family Equity Act.)
§ The Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 (Pub. L. 106-553 and -554) enable certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain a green card (permanent residence) regardless of:
- The manner they entered the United States
- Working in the United States without authorization
- Failing to continuously maintain lawful status since entry
- Loss of US Nationality
§ US Citizen may voluntarily relinquish citizenship.
§ US Citizen may lose his or her citizenship by revocation of naturalization through:
- Court proceedings
- Administrative proceeding
- As a result of criminal conviction for knowingly procuring naturalization by fraud
§ Diversity Immigrants can enter a yearly random lottery online by completing the diversity visa entry form at http://dvlottery.state.gov/.
§ Eligibility – applicant must:
- Be a native of a low admission state designate dunder diversity program
- Have a high school diploma or its equivalent OR within 5 years of applying, at least 2 years of work experience in an occupation requiring at least 2 years training or experience. Occupation must require an SVP of 7
§ Family members are eligible.
§ See “Ineffective Assistance of Counsel”.
§ LULAC/Newman and CSS Settlement – gave class members until Dec. 31, 2005 to apply for legalization under the 1986 IRCA. Under the settlement, the following persons are covered:
- Persons who (or whose parent or spouse are otherwise prima facie eligible for legalization under INA §245A who attempted to file a completed application and fee with INS or QDE during the period May 5, 1987 to May 4, 1988 but had the application and fee refused because they traveled outside the US and returned with a visa or travel document;
- Persons who filed for class membership under Newman, met the same characteristics as LULAC, and were denied or turned away because of the travel and the facially valid visa rule
- M visa
§ Requirements are:
- Study in community/junior college for 12 semesters/quarter hours leading to a specific educational and/or vocational objective
- Study at post-secondary vocational/business school which confers a degree or has its credits accepted by 3 accredited academic institutions. Twelve hours of instruction/week or its equivalent are required.
- Study in vocational or other nonacademic curriculum; 18 hours/week if predominantly classroom or 22 hours if predominantly shop/lab. Flight schools, cooking schools and other vocational schools would be included.
- Study in vocational or other nonacademic high school curriculum for not less than minimum number of hours for normal progress toward degree.
- No Online Courses
- Unless the course requires the students’ physical presence
- Reduced Course Load – Allowed only for a maximum aggregate of 5 months and only because of medical reasons
- Managers, Multinational
§ EB-1-3 is for multinational executives or managers who have been employed abroad in that capacity with the firm, corporation or legal entity, affiliate, or subsidiary for one year in the last three years prior to entry. No labor certification is required; however, the prospective employer must submit a statement that the beneficiary will perform as an executive or manager.
§ Proof necessary to establish Bona Fide Marriage:
- Evidence includes; spouse listed petitioner as beneficiary on insurance policies, property leases, income tax returns, or bank accounts.
- Marriage Certificate
§ The official record that two people have undertaken a marriage ceremony. This does include jurisdictions where marriage licenses do not exist. In some other jurisdictions, a marriage license serves a dual purpose of granting permission for a marriage to take place and then recording the fact that it has done so.
- Marriage Fraud
§ Test for fraudulent at inception:
- Did bride and groom intend to establish life together?
- Look at subjective state of mind. Objective facts only to shed light on state of mind
- BIA will not uphold denial or marriage petition by DD where specific basis for denial and evidence underlying denial are absent.
- Cohabitation and consummation not absolute prerequisites.
- Where prior withdrawal of application, to obtain approval and to overcome previous withdrawal:
- Need explanation for withdrawal
- Evidence supporting bona fides of marriage
- Judicial review
- Marriage Abroad
§ Petition can be filed at consulate if petitioner’s residence is abroad
§ NIV only from country of marriage – INA §214(r)(2) and section 1103(b) of the LIFE Act, PL 106-553, 114 Stat. 2762 provide that the spouse of a USC who marries the USC abroad is inadmissible into the US with an NIV unless the NIV was issued by a consular officer in the foreign state in which she was married.
- Marriage in Detention
§ It is a violation of a person’s fundamental right to marry to prohibit him or her from marrying while in detention.
- Marriage License
- Marriage Petition
§ See K-3 visa
- Military Service
- Ministers of Religion
§ Best possible visas:
- R Visa
- Fourth Preference: Special Immigrants
§ Person under 18 years of age
§ A misdemeanor is a crime committed in the United States, either:
(1) Punishable by imprisonment for a term of 1 year or less, regardless of the term such alien actually served, if any, or
(2) A crime treated as a misdemeanor under the term “felony” of this section.
For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor.
§ A spectrum of behaviors that can get either the lawyer or legal assistant into serious disciplinary, tort, or criminal trouble.
The behaviors (using the common law terms) are, in ascending order of badness:
§ “Mere” negligence;
§ Reckless disregard;
§ Aliens who, by fraud or willfully misrepresenting a material fact, seek to procure or have sought to procure or have procured a visa, other documentation or entry into the US or other benefit provided under the Act are inadmissible. INA §212(a)(6)(C)(i), 8 USC. §1182(a)(6)(C)(i). See also 22 C.F.R. §40.63, 9 FAM 40.63 N.1-10; AFM at 40.6.2(c).
§ Under the previous statute, aliens who “seeks to enter” by fraud were only barred on that occasion. However, under the Marriage Fraud Amendments Act of 1986, PL 99-639, all misrepresentations permanently bar entry. Moreover, INA §212(a)(6)(C) applies to procuring “other benefit[s] provided under the Act.” The BIA has found that this includes a conviction for possession of a false Texas birth certificate with intent to defraud the US by obtaining a US passport. (Matter of Cervantes, 22 I&N Dec. 560, 563 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001)); but see Rosenberg dissent in 22 I&N Dec. at 575. The DOS cautions consular officials to consider the harsh and permanent nature of this ground of inadmissibility in determining whether fraud or misrepresentation has occurred.
- Motion to Reopen/Reconsider
§ Sometimes additional facts that could provide a basis for a grant of the immigration relief being sought become available after a case has been presented and decided. In these situations, the only way that the new facts can be made part of the record for consideration by the decision-maker is if the case is “reopened.” The term “reopen” connotes that the record is being opened again for the consideration of the new evidence. A request to do so is made by way of a “motion to reopen.” In contrast to motions to reopen are motions to reconsider. These motions are brought in circumstances not when there are new facts, but when there is a new or restated legal argument. The regulations limit applicants to one motion to reopen before DHS, the BIA, or an IJ. The motion must be accompanied by affidavits or other evidentiary materials, and there must be a showing that the new evidence is material and was unavailable at the time of the hearing. A motion to reopen must be filed with DHS within 30 days of the initial decision, but that deadline may be excused when it is shown that the delay was “reasonable and . . . beyond the control of the applicant or petitioner.” Motions to reopen to the IJ must be filed within 90 days of the final order and must state whether the case is subject to any judicial or criminal proceeding and whether the person is still in the United States. The motion also must contain the new facts that will be established, along with affidavits and other evidentiary material, including the completed application for relief. The motion to reopen before the BIA must be filed within 90 days from the date the administrative decision was rendered, and must contain affidavits or other evidence establishing prima facie eligibility for the relief sought and that the evidence could not have been discovered or presented at the former hearing. Because a motion to reopen is based on new facts that establish eligibility for relief, the motion must demonstrate that the applicant is prima facie eligible for the immigration relief being sought. The BIA may deny relief even if there is no opposition presented by DHS, as the decision by the IJ or BIA is given a great deal of deference. Denials may be based on failure to make out a prima facie case, on failure to reasonably explain why the information was not available earlier, or on any grounds if the benefit sought is a discretionary one. Nonetheless, the IJ or BIA must explain its basis for denial, and it may not be based on a cursory review of the record. In cases before EOIR, a motion to reopen is barred if it is filed more than 90 days after a final administrative order is entered, if a previous motion was filed, or if the applicant is no longer in the United States. A final administrative order is either the decision by the BIA or an un-appealed decision of the IJ. Notwithstanding any of these provisions, the BIA has broad authority to sua sponte reopen the proceedings in exceptional circumstances, and reopening also may be possible when the parties agree to reopening.
§ A motion to reconsider, when made from a decision by DHS, must be filed within 30 days. Reconsideration in cases before IJs, the BIA, the DOS Board of Appellate Review, and DOL also are governed by a 30-day rule and require that the appellant present the facts or law that was improperly understood or applied. While there are no set time periods in requesting reconsideration of a visa refusal or denial, a person’s failure to proceed within one year following notification of visa availability will cause the person to lose his or her priority date, although reinstatement is possible within two years.
- N visa
- Parent of alien classified SK-3 “Special Immigrant”
- Child of N-8, SK-1, SK-2, or SK-4 “Special Immigrant”
- Nicaraguan Adjustment & Central American Relief Act (NACARA)
§ Provides various forms of immigration benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents who had arrived as asylees. As these Central Americans overwhelmed the US asylum program in the mid-1990s, their cases were left for NACARA to address.
§ Section 202 deals with Nicaraguans (~95% of Section 202 beneficiaries) and Cubans (~5%), whereas Section 203 deals with Salvadorans (~65% of Sec. 203 beneficiaries), Guatemalans (~30%), and former Soviet Union nationals (~5%). Persons granted NACARA benefits are counted as legal permanent resident immigrants.
§ The NACARA stated that Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents are able to become legal permanent residents of the United States provided that they were registered asylums seekers who stayed in the United States for at least 5 years since December 1, 1995. Some conditions regulate this clause. The asylum seeker shall not possess a lack of labor certification. He must obtain a right of residence. Another reason leading to rejection would be the lack of a valid visa. Furthermore, the violation of a law leads to rejection of the request to become a legal resident. Due to offenses against the conditions the asylum seeker has to be deported.
- National Interest Waiver
§ Applicant requirement to have a job offer and labor certification may be waived (i.e. qualify for a National Interest Waiver) if it is in the national interest to do so.
§ Not available to EB-1 category.
- National Security Entry-Exit Registration System (NSEERS)
§ Currently, certain nonimmigrant alien visitors from Iran, Iraq, Libya, Sudan, Syria, Pakistan, Saudi Arabia, and Yemen are subject to National Security Entry-Exit Registration System (NSEERS), also known as Special Registration, at the port of entry upon arrival to the United States. Also, nonimmigrant aliens from any country may be registered if they are determined to meet criteria established by the secretary of Homeland Security, if they are referred by a Department of State consular officer, or if the inspecting officer believes the alien should be registered in the interest of law enforcement or national security.
§ Most NSEERS registered aliens are ALSO required to register their departure at a designated port. Failure to comply with any NSEERS requirement causes the alien to violate his or her nonimmigrant status. At the minimum, for non-immigrants with pending Green Card Cases, I-485 Requests for Evidence can be issued where applicants would have to show good cause for why they were not in compliance with NSEERS. In such circumstances, I-485s can be denied where willful failure to comply with NSEERS is evident or may be otherwise disregarded. Non-immigrants can also be refused entry if NSEERS was not properly complied with.
- National Visa Center
§ After the US Citizenship and Immigration Services (USCIS) approves your immigrant visa petition, the USCIS forwards your petition to the National Visa Center (NVC) in Portsmouth, NH for immigrant visa pre-processing at the correct time. Immediate relative categories do not have yearly numerical limits. However, family preference and employment immigrant categories have numerical limits each year; and therefore, wait times are involved, which can be lengthy, for processing to be able begin, as explained below.
§ Title III: Chapter 1 — Ch. 1 (§§301-09) — Nationality at Birth and Collective Naturalization
§ The conferring, by any means, of citizenship upon a person after birth.
- No Fault Divorce
§ Divorce proceeding where neither individual needs to blame the other for the divorce.
- No-match Letters
§ Every year the SSA informs thousands of employers via a letter entitled “Employer Correction Request,” commonly known as “No-Match” letters, stating that the Social Security numbers which employers provided on W-2 Forms for certain employees do not match SSA’s records.
- Notice of Intent to Deny (NOID)
§ Unless the case is clearly ineligible for approval (i.e., denial decision) or the filer has demonstrated eligibility by the preponderance of evidence without special cause for concern (i.e., approval decision), adjudicators normally should issue a Request For Evidence (RFE) or a NOID, whichever is more appropriate. The amount of time USCIS adjudicators must give for a response to a RFE or NOID are currently dictated to some extent by regulations.
- (2) NOID
- A NOID is more appropriate than a RFE when initial evidence is predominantly present, but:
- the filing does not appear to establish eligibility by the preponderance of the evidence;
- the case appears to be ineligible for approval but not necessarily incurable; or
- the adjudicator intends to rely for denial on evidence not submitted by the filer.
§ The NOID is designed to provide a poignant taste of denial without its immediate consequences, so that the filer can understand why the evidence submitted has not been persuasive and can have the best chance to overcome the deficiency if possible. If the response to the NOID is not sufficient, then, after review of the entire record, the preparation of the denial decision often will require limited editing of the NOID, although sometimes the response will require more detailed analysis for denial. It is possible to combine, in a sense, a RFE and a NOID, requesting additional evidence on certain points and explaining an anticipated basis for denial on others. Considerations above concerning the avoidance of templates and the assessment of existing evidence apply equally to writing NOIDs.
§ An alien who seeks temporary entry to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission) and qualify for the nonimmigrant classification sought. The nonimmigrant classifications include: foreign government officials, visitors for business and for pleasure, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information media, exchange visitors, fiance(e)s of US citizens, intracompany transferees, NATO officials, religious workers, and some others. Most nonimmigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children.
- Nonimmigrant visa
§ The term “nonimmigrant visa” means a visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in this Act.
- Notice to Appear
§ Every removal proceeding conducted under section 240 of the Act (8 USC. 1229a) to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the immigration court.
§ has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained nursing education or has received nursing education in the United States;
§ has passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the State of intended employment; and
§ is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be employed by the facility.
- O-1 / O-2
§ The O-1 visa applies to two categories of persons. The O-1A visa is for people who, through sustained national or international acclaim, have demonstrated extraordinary abilities in the sciences, arts, education, business, or athletics. The O-1B is for people in the motion picture or TV production business who have a record of extraordinary achievement. The O-1 visa category has been interpreted to include a very broad range of fields. While there is no foreign-residence requirement, the person must have an intent to remain temporarily. Extraordinary ability may be established either by a major international award or by at least three of the following criteria: (1) a national or international award; (2) membership in an organization in the field for which classification is sought requiring outstanding achievement; (3) published material about the person’s work in professional or major trade publications; (4) having been called on to judge the work of others in the particular field; (5) original work of major significance in the field; (6) authorship and publication of scholarly work in the field; (7) evidence that the person has been in a critical or essential employment capacity with an organization of distinguished reputation; or (8) evidence that the person has or will command a high salary in the field.
§ The O-2 is for persons who are accompanying and assisting the O-1 artist or athlete in the furtherance of his or her performance. (The skills that are to be utilized in assisting must not be of a general nature.)
- Oath of Allegiance
§ Naturalization legislation required an applicant to first declare an “oath” before any “court of record” announcing his intention to become a US citizen. Later, upon petitioning a court:
§ “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”
- Occupational Outlook Handbook (OOH)
- the training and education needed
- expected job prospects
- what workers do on the job
- working conditions
§ In addition, the Handbook provides resources such as job search tips, links to information about the job market in each State, and more. You can also view frequently asked questions about the Handbook.
§ A child may be considered an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents. The child of an unwed mother or surviving parent may be considered an orphan if that parent is unable to care for the child properly and has, in writing, irrevocably released the child for emigration and adoption.
§ The child of an unwed mother may be considered an orphan, as long as the mother does not marry (which would result in the child’s having a stepfather) and as long as the child’s biological father has not legitimated the child. If the father legitimates the child or the mother marries, the mother is no longer considered a sole parent.
§ The child of a surviving parent may also be an orphan if the surviving parent has not married since the death of the other parent (which would result in the child’s having a stepfather or stepmother).
§ Note: Prospective adoptive parents should be sure that a child fits the definition of ”orphan” before adopting a child from another country, because not all children adopted abroad meet the definition of “orphan,” and therefore may not be eligible to immigrate to the United States.
§ Nonimmigrant aliens described in section 1101(a)(15) of this title whose authorized period of stay in the United States terminated … but who remained in the United States notwithstanding such termination.
- P visa
§ A P visa is for aliens who seek to enter temporarily and solely for purpose of performing in a “competition, event or performance.” This includes short vacations, promotional appearances and incidental stopovers, and can include an entire season, itinerary and contract. Individual entertainers are omitted if performing separate and apart from group. Must obtain an O‑1 visa. Foreign Residence Abroad Requirement—All P-visa holders must have a foreign residence that they do not intend to abandon, but regulations permit dual intent.
§ Athletes and Group Entertainers: Person who performs as an athlete, individually or as part of a group or team that is “internationally recognized”(P-1A), or a person who performs with or is an integral or essential part of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time (P-1B), and in the case of the performer, has had a sustained and substantial relationship with the group over a period of at least one year. P-1As have now been expanded to include minor league professional/entertainers under certain circumstances, specifically: (1) an athlete, whether or not professional, who performs at an internationally recognized level of performance; (2) an amateur athlete or coach of sports teams in the US that are members of a foreign league or association if (i) the foreign league or association is the highest level of amateur performance of that sport in that country; (ii) participation renders the athlete ineligible for US scholarships under NCAA rules; and (iii) a significant number of the players in the league are drafted into major league teams or minor teams affiliated with them; or (3) a professional or amateur ice skater who performs individually or as part of a group theatrical production.
- Internationally recognized means “a high level of achievement…evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent such achievement is renowned, leading or well-known in more than one country.” Both international recognition and the one-year prior relationship may be waived for performers and entertainers in some cases. A group that is nationally recognized for a sustained and substantial period of time may obtain a waiver if there are special circumstances. The one-year prior relationship does not apply to 25% of performers or entertainers in any group and the AG may waive this requirement for any performer or entertainer who replaces an essential member of the group because of that member’s illness or other exigent circumstances or because the performer or entertainer augments the group by performing a critical role. Circus personnel performing as part of a circus or circus group are exempt from the international recognition and one-year requirements, provided they are part of or are joining, a circus with sustained national recognition.
- An entertainment group or athletic team may be as few as 2 persons. The manner in which the act is billed is not a determinative factor. If a solo artist or entertainer traditionally performs with back-up singers or musicians, the act can be classified as a group so long as 75% of them have been together for one year or more. If they do not meet the 75% rule then the solo artist must qualify as O-1 and the musicians as O-2s.
§ Reciprocal Exchange Program—P-2 classification may be accorded to an artist or entertainer, individually or as part of a group, who will be performing under a reciprocal exchange program between an organization or organizations in the US and one or more foreign organizations, which provides for the temporary exchange of artists, entertainers or groups.
§ Culturally Unique Program—P-3 status may be accorded to an artist or entertainer, individually or as part of a group, who is coming to the US to perform, teach, or coach in a culturally unique program of a commercial or noncommercial nature that will further the understanding or development of his or her art form. It need not be sponsored by an educational, cultural, or government agency.
§ The mother and father or legal custodian
§ A person who does not meet the technical requirements for a visa may be allowed to enter the US for humanitarian purposes. Persons who are allowed to enter the US in this manner are known as parolees.
§ Another use related to immigration is advance parole, in which a person who already legally resides in the US needs to leave temporarily and return without a visa. This typically occurs when a person’s application for a green card (permanent residency) is in process and the person must leave the US for emergency or business reasons.
§ The term is also used to denote scenarios in which the federal government orders the release of an alien inmate incarcerated in a state prison before that inmate’s sentence has been completed, with the stipulation that the inmate be immediately deported, and never permitted to return to the United States.
§ The term “passport” means any travel document issued by competent authority showing the bearer’s origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.
- Permanent Labor Certification (PERM)
§ Program Electronic Review Management system (PERM) is an electronic filing system which was created to save time and increase department efficiency in processing labor certification applications.
§ The purpose of the labor certification process is to determine two things:
- 1. Whether there is a shortage of able, willing, qualified and available US workers; and
- 2. Whether the employment of the alien will adversely affect the wages and working conditions of US workers.
- Permanent Resident (see Lawful Permanent Residence)
§ See Green Card
§ Threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.
- Petty Offense
§ When the maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year and the alien was not sentenced to a term of imprisonment in excess of six months.
- Physical Presence
§ To be physically present
§ A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments.
- Political Asylee
§ An alien in the United States or at a port of entry who is found to be unable or unwilling to return to his or her country of nationality, or to seek the protection of that country because of persecution or a well-founded fear of persecution. Persecution or the fear thereof must be based on the alien’s race, religion, nationality, membership in a particular social group, or political opinion. For persons with no nationality, the country of nationality is considered to be the country in which the alien last habitually resided. Asylees are eligible to adjust to lawful permanent resident status after one year of continuous presence in the United States. These immigrants are limited to 10,000 adjustments per fiscal year.
- Political Asylum (see Asylum)
§ Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:
- Membership in a particular social group
- Political opinion
§ If you are eligible for asylum you may be permitted to remain in the United States. To apply for Asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States. There is no fee to apply for asylum.
§ A marriage which includes more than two partners.
- Port of Entry
§ Any location in the United States or its territories that is designated as a point of entry for aliens and US citizens. All district and file control offices are also considered ports, since they become locations of entry for aliens adjusting to immigrant status.
§ An H-1B who has filed an application for permanent residency and whose application has been pending for 180 days may change jobs as long as the new job is in the same or a similar occupational classification
- Preference Relative
§ Preference categories apply to family members who are not immediate relatives. The visas allotted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed). Preference categories are grouped as follows:
- First preference: Unmarried, adult sons and daughters of US citizens (adult means 21 or older.)
- Second Preference (2A): Spouses of green card holders, unmarried children (under 21) of permanent residents
- Second Preference (2B): Unmarried adult sons and daughters of permanent residents
- Third Preference: Married sons and daughters (any age) of US citizens
- Fourth Preference: Brothers and sisters of adult US citizens
- Premium Processing
§ Premium Processing Service provides faster processing for certain employment-based petitions and applications. Specifically, USCIS guarantees fifteen calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing.
§ The fifteen calendar day period will begin when the current version of Form I-907, Request for Premium Processing Service, is received by USCIS at the correct filing address noted on the form. USCIS will issue and serve on the petitioner or applicant an approval notice, a denial notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation within the 15 calendar day period. If the petition or application requires the submission of additional evidence or a response to a notice of intent to deny, a new 15 calendar day period will begin upon receipt by USCIS of a complete response to the request for evidence or notice of intent to deny.
- Prevailing Wage
§ The employer must promise to pay the H-1B employee the prevailing wage or actual wage, whichever is higher. The method the employer uses to determine both the prevailing and actual wage must comply with the procedures set forth in the DOL regulations. As of January 1, 2010, the prevailing wage function was removed from the State Workforce Agencies (SWA), which has added a significant delay to the processing of requests. As of January 21, 2010, electronic filing of the ETA-9141, Application for Prevailing Wage Determination, is required through the DOL’s iCERT portal. Determination of the prevailing wage should rely upon the best information available, either from a prevailing wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC), a published wage survey for the occupation in the area of intended employment, or reliance on another legitimate source of wage data. The LCA must contain the specific source of the determination of the prevailing wage. Determining the prevailing wage has long been controversial, particularly in a rapidly changing labor market.
§ Effective March 8, 2005, the employer is required to pay 100 percent of the prevailing wage. For academic or research jobs, the INA and the H-1B regulations have codified what is called the “Hathaway Rule.” This states that for jobs at institutions of higher education or their affiliated or related nonprofits, or jobs at a nonprofit research organization or governmental research organization, the prevailing wage will only take into account the wages at similar institutions. This protects academic institutions from having to match salaries in private industry, particularly for H-1B research professionals. To determine the actual wage, the employer must identify any other employees who are similarly employed and possess similar experience and qualifications. The H-1B employee must be paid at least as much as any such employee (i.e., the “actual wage”) or the prevailing wage, whichever is higher.
- Priority Date
§ The availability of visas under the quota system is determined by the person’s “priority date.” A priority date is that date on which a person initially submitted documentation establishing eligibility for one of the preference categories under the immigrant visa scheme. In the case of a family-based petition, the priority date would be the date on which the petitioner submitted the application showing that there existed a qualifying familial relationship with the beneficiary. While the establishment of a priority date may not be very complicated, the preservation and transfer of the priority date within preferences can amount to an arcane science. In an immigrant visa system in which the visa applicants are fewer than the available quota, priority date rules are not critical. However, since the early 1980s, there have been far more visa applicants than the available quota allows, making a full understanding of priority dates important to the practitioner, who must be very aware of how the dates impact the length of time it may take to immigrate.
- Priority Workers
§ See “E visa”
§ Persons in custody of a jail
§ A sentence to probation is not considered a sentence to confinement or imprisonment.
§ Requirement that person must serve probation outside of US. Invalid
§ Probation, parole, or supervised release are not grounds for deferral of deportation.
§ Parole terms may continue even after person deported.
- Baccalaureate degree (or foreign university equivalent) and person who is a member of the profession.
- Must be approved by OOH
§ Professors with the following achievements are classified as priority workers (EB-1)
- Recognized internationally as outstanding in a specific academic area
- Has 3 years experience in teaching or research in the academic area
- Seeks entry for:
- Tenure teaching position
- Comparable position at university or institute of higher education to conduct research; or
- Comparable position to conduct research with private employer if it employs at least 3 persons full time in research activities and the departmental, division or institution has achieved documented accomplishments in an academic field. Research will not include engineering or product design because such activity is the “technological application of existing research”
- If it is a research position it may be tenured, tenure track or a permanent offer, which is an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued permanent employment unless there is good cause for termination.
- Evidence that the professor or researcher is recognized internationally as outstanding in the academic field must include at least two of the following:
- Receipt of major prizes or awards for outstanding achievement
- Membership in an association which requires outstanding achievement
- Published material in professional publications written by others about the applicants’ work
§ The act of selling one’s body in exchange for money
- Public Benefits
§ Persons who are not “qualified” aliens under the law are not eligible for most federal benefits while states are not barred from providing benefits if they choose to do so.
- Public Charge
§ “Public charge” is a term used in immigration law. The term describes persons who cannot support themselves and who depend on benefits that provide cash—like Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI)—for their income. Depending on your immigration status, the Immigration and Naturalization Service (INS) and State Department consular officers abroad can refuse to let you enter the US, re-enter the US, or become a permanent resident, if they think you will not be able to support yourself without these benefits in the future.
- Q visa
§ NIV for a participant in an international cultural exchange program designate by the AG for the purpose of providing practical training, employment and the sharing of the history, culture and traditions of the country of the person’s nationality. The program applies to an employer who has employees, not simply an agent, or office and who provides on a regular, continuous, systematic basis goods and/or services (including lectures, seminars and other types of cultural programs).
- Cannot exceed 15 months
- Beneficiary must have foreign residence
- Beneficiary must be employed under the same wages and working conditions as US workers
- Limitation on admission – if beneficiary has spent 15 months in US under a visa cannot be readmitted under the same status until physically outside of the US for 1 year.
§ The Q-2 classification is established to identify principal participants in the Irish Peace Process Cultural and Training Program.
- Quota System
§ (a) Pre-1952 Act. The requirement of filing a petition to bring workers into the US evolved out of a legislative desire to exercise control over immigration that might negatively affect the American labor market. Restriction of immigration to protect the American labor market is a relatively recent concern of the legislature. In fact, initial federal controls over immigration formulated in 1875 sought to do no more than bar the admission of certain types of “undesirable” persons. In general, no numerical restraints of any kind were enacted until the quota acts of 1921 and 1924. Even with major revisions of the immigration laws in 1924 and as recently as 1952, with certain exceptions, there was still no firmly established policy of “protecting the job market.”
- R visa
§ NIV for:
- A minister
- A person working in a professional capacity in a religious vocation or occupation
- BA or foreign equivalent
- A person working for a religious organization in a religious vocation or occupation and
- Who for 2 years immediately preceding the application has been a member of the religious denomination having a bona fide nonprofit religious organization in the US
§ Entry limited to 5 years
§ Spouse and children may accompany or follow to join
§ No prior USCIS petition or approval needed if filed at consulate
- Re-entry After Deportation
§ Any person who has been denied admission, excluded, deported or removed or has departed the US while an order of exclusion, deportation or removal is outstanding and thereafter enters, attempts to enter, or is found in the US is subject to a 2 year penalty and $1,000 fine.
- Re-entry Permit
§ A reentry permit simply serves as a travel document and allows you to reenter the United States without obtaining a returning resident visa. It does not preserve residence for the purpose of naturalization.
§ Any person who is outside his or her country of nationality who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution. Persecution or the fear thereof must be based on the alien’s race, religion, nationality, membership in a particular social group, or political opinion. People with no nationality must generally be outside their country of last habitual residence to qualify as a refugee. Refugees are subject to ceilings by geographic area set annually by the President in consultation with Congress and are eligible to adjust to lawful permanent resident status after one year of continuous presence in the United States.
- Reinstatement, Humanitarian
§ When for humanitarian reasons revocation would be improper, DOS uses the following criteria to evaluate a request for humanitarian reinstatement:
- Disruption of an established family unit
- Hardship to USC’s or LPR’s
- A beneficiary who is elderly or in poor health
- A beneficiary who has had lengthy residence in the US
- A beneficiary who has no home to go to
- Undue delay by INS or consular officers in processing the petition and the visa
- A beneficiary who has strong family ties in the US
- If affidavit of support is required, this requirement can be met by certain relatives
- Mother in law
- Father in law
- Child (if at least 18 years of age)
- Son in law
- Daughter in law
- Sister in law
- Brother in law
- Legal guardian
- Reinstatement of Removal Order
§ Where AG finds that a person removed or given VD under an order of removal re-enters the US illegally, DHS can reinstate the prior order of removal and the person may not seek to reopen the original order, review the reinstated order, or seek relief from removal.
- Reissuance of Visas
§ A person with one of the following visas may apply directly to the Department of State in Washington D.C. to reissue or revalidate his visa.
- G-1 TO G-4
- NATO-1 TO NATO-6
- Person’s nationality must be the same as it was when visa was first issued
- Previous visa must be same classification as the one the applicant is now seeking
- The previous visa must not have a validity of more than 60 days
- If the previous visa has expired, the application for revalidation must be submitted within one year of the expiration.
§ Congress created several forms of immigration relief that are available to aliens who are victims
§ The expulsion of an alien from the United States. This expulsion may be based on grounds of inadmissibility or deportability.
- Request for Evidence (RFE)
§ Under 8 CFR 103.2(b)(8), the CIS is only required to issue an RFE in one circumstance initial evidence is missing. Initial evidence is evidence specified in the regulations and on the application or petition and accompanying instructions. In all other instances, such as when the evidence raises underlying questions regarding eligibility or does not fully establish eligibility, issuance of an RFE is discretionary. As provided above, the CIS adjudicator may deny the case if he or she determines that the applicant or petitioner has not met his or her burden to establish eligibility for the benefit, rather than exercise discretion and issue an RFE prior to final adjudication. If the case is denied, the applicant or petitioner may, in certain circumstances, file an appeal or a motion to reopen or reconsider in accordance with 8 CFR 103.3 and 103.5.
§ See Lawful Permanent Resident
§ A Green Card holder (permanent resident) is someone who has been granted authorization to live and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card, commonly called a “Green Card.” You can become a permanent resident several different ways. Most individuals are sponsored by a family member or employer in the United States. Other individuals may become permanent residents through refugee or asylee status or other humanitarian programs. In some cases, you may be eligible to file for yourself.
§ Sec. 205 Revocation of Approval of Petitions; Notice of Revocation; Effective Date
[8 USC. 1155]
§ The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.
- S visa
§ On September 13, 1994, the President signed into law the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322). Section 130001 of this Act amends the Immigration and Nationality Act (INA) by adding a new subparagraph (S) at INA 101(a)(15), thus establishing a new nonimmigrant (S) classification. This new subparagraph, which took effect immediately, provides for the admission of certain witnesses and other aliens who possess critical information relating to acts of terrorism and criminal behavior. Although the text of INA 101(a)(15) is written with terminology that relates to “S-1” and “S-2” visas, “S-5” and “S-6” are officially used as the codes for these visa classifications due to prior usage of the S code by the Department of Homeland Security (DHS).
- Selective Service
§ 245a.2(g) Selective Service registration. At the time of filing an application under this section, male applicants over the age of 17 and under the age of 26 are required to be registered under the Military Selective Service Act. An applicant shall present evidence that he has previously registered under that Act in the form of a letter of acknowledgement from the Selective Service System, or such alien shall present a completed and signed Form SSS-1 at the time of filing Form I-687 with the Immigration and Naturalization Service or a designated entity. Form SSS-1 will be forwarded to the Selective Service System by the Service.
§ The worker does not need an employer to sponsor them
§ The individual does not need a petitioner to apply for them
- Separation, Marriage
§ Husband and wife not co-habitating
§ Not necessarily divorced
- Service Centers
§ The NCSC can assist customers, community-based organizations and liaison groups with case-related inquiries.
§ There are four National Customer Service Center (NCSC):
- California Service Center: firstname.lastname@example.org
- Vermont Service Center: email@example.com
- Nebraska Service Center: firstname.lastname@example.org
- Texas Service Center: email@example.com
§ 103.10(b) Authority to grant and deny requests—
§ 103.10(b)(1) Grant of deny. The Associate Commissioner for Information Resources Management, regional administrators, district directors, service center directors, and heads of suboffices specified in paragraph (a)(1) of this section, or their designees, may grant or deny requests under exemptions in 5 USC. 552(b) and (c).
§ The Student and Exchange Visitor Information System (SEVIS) is a web-accessible database used by the Department of Homeland Security to collect, track and monitor information regarding exchange visitors, international students and scholars who enter the United States on F, M or J visas. SEVIS is managed by the Student and Exchange Visitor Program (SEVP) within US Immigration and Customs Enforcement
- Sexual Abuse of a Minor / Sexual Offender
§ Sexual abuse of a minor – includes persons charged with misdemeanor sexual abuse.
§ It also includes any child under 18, notwithstanding the federal definition that involves only children under 16 and which requires that the minor be at least 4 years younger than the perpetrator.
§ Term abuse of a minor does not require physical contact
§ People who share at least one parent.
§ An island country made up of 63 islands
- Skilled Workers
§ Full-time permanent job requiring at least 2 years training or work experience. Relevant post-secondary education may be considered as training.
- Social Security
§ A Social Security number is a number assigned to you by the United States government. It helps the government keep track of your earnings and the benefits you can get. It is also used by banks and other agencies, such as schools, to identify you.
- Specialty Occupation
§ A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
- Spousal Abuse
§ Is a crime of moral turpitude
§ Examples include:
- Aggravated stalking (where threat is involved)
- Willful infliction of corporal injury
§ Present standard more liberal – …statute requires only that step-parent relationship be formed before child reaches 18 and that parents have real marriage.
§ As a nonimmigrant class of admission, an alien coming temporarily to the United States to pursue a full course of study in an approved program in either an academic (college, university, seminary, conservatory, academic high school, elementary school, other institution, or language training program) or a vocational or other recognized nonacademic institution.
- Successor Employers
§ Successor employers who retain part or all of the prior employer’s staff are responsible for verification requirements
- Successor employer is not required to execute all new I-9s but is responsible for predecessor’s failure to complete or defective completion of I-9s
- In determining successor liability, courts will rely on: (1) the continuity of ownership; (2) the time lapse between dissolution of the first company and formation of the second; (3) the continuation of the business; and (4) the assumption of liabilities.
- Must show transfer of assets from predecessor to successor as a prerequisite for liability.
- Swearing-in Ceremony
§ If USCIS approves your application for naturalization, you must attend a ceremony and take the Oath of Allegiance to the United States. USCIS will notify you by mail of the time and date of your ceremony. The notice USCIS sends you is called the “Notice of Naturalization Oath Ceremony” (Form N-445). In some cases, USCIS may give you the option to take the Oath on the same day as your interview. If you arrange to take a “sameday” Oath, USCIS will ask you to come back to the office later that day. At this time, you will take the Oath and receive your
- T visa
§ The “T” visa is a nonimmigrant classification for people who are victims of a severe form of human trafficking.
- Tax Returns
§ A declaration of personal income made annually to the tax authorities and used as a basis for assessing an individual’s liability for taxation
- Temporary Protected Status (TPS)
§ Establishes a legislative basis for allowing a group of persons temporary refuge in the United States. Under a provision of the Immigration Act of 1990, the Secretary of Homeland Security may designate nationals of a foreign state to be eligible for TPS with a finding that conditions in that country pose a danger to personal safety due to ongoing armed conflict or an environmental disaster. Grants of TPS are initially made for periods of 6 to 18 months and may be extended depending on the situation. Removal proceedings are suspended against aliens while they are in Temporary Protected Status.
- Temporary Workers
§ An alien coming to the United States to work for a temporary period of time. The Immigration Reform and Control Act of 1986 and the Immigration Act of 1990, as well as other legislation, revised existing classes and created new classes of nonimmigrant admission. Nonimmigrant temporary worker classes of admission are as follows:
- H-1A – registered nurses (valid from 10/1/1990 through 9/30/1995);
- H-1B – workers with “specialty occupations” admitted on the basis of professional education, skills, and/or equivalent experience;
- H-1C – registered nurses to work in areas with a shortage of health professionals under the Nursing Relief for Disadvantaged Areas Act of 1999;
- H-2A – temporary agricultural workers coming to the United States to perform agricultural services or labor of a temporary or seasonal nature when authorized workers are unavailable in the United States;
- H-2B – temporary non-agricultural workers coming to the United States to perform temporary services or labor if unemployed persons capable of performing the service or labor cannot be found in the United States;
- H-3 – aliens coming temporarily to the United States as trainees, other than to receive graduate medical education or training;
- O-1, O-2, O-3 – temporary workers with extraordinary ability or achievement in the sciences, arts, education, business, or athletics; those entering solely for the purpose of accompanying and assisting such workers; and their spouses and children;
- P-1, P-2, P-3, P-4 – athletes and entertainers at an internationally recognized level of performance; artists and entertainers under a reciprocal exchange program; artists and entertainers under a program that is “culturally unique”; and their spouses and children;
- Q-1, Q-2, Q-3 – participants in international cultural exchange programs; participants in the Irish Peace Process Cultural and Training Program; and spouses and children of Irish Peace Process participants;
- R-1, R-2 – temporary workers to perform work in religious occupations and their spouses and children
- Ten-(10)-year Bar
§ An alien who was unlawfully present in the US for one year or more, voluntarily departed the US, who has otherwise been removed from the US under any provision of law, or who departed while an order of removal was in effect, is ineligible for a visa for 10 years following such removal or departure from the US
- Three-(3)-year Bar
§ An alien who was unlawfully present in the US for a period of more than 180 days but less than 1 year, voluntarily departed the US prior to the commencement of proceedings is ineligible for a visa for 3 years following such removal or departure from the US
- TN visa
§ Citizens of Canada and Mexico are allowed to work in the US under the North American Free Trade Agreement (NAFTA), which creates special economic and trade relationships between the United States, Canada and Mexico. The nonimmigrant TN status allows NAFTA professionals to work in the US in a prearranged business activity for a US or foreign employer for a temporary period of three years.
Training programs are designed to allow foreign professionals to come to the United States to gain exposure to US culture and to receive training in US business practices in their chosen occupational field. Foreign nationals have had the opportunity to train with some of the finest employers in the US, gaining real time experience in their chosen career fields. Upon completion of their exchange programs, participants are expected to return to their home countries to utilize their newly learned skills and knowledge to advance their careers and share their experiences with their communities. A trainee must be a foreign national who has a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in his or her occupational field outside the United States, or five years of work experience outside the United States in the occupational field in which they are seeking training. To take part in the college/university student program, candidates must identify and work with a designated sponsor, which supervises the exchange program application process, issues the Form DS-2019 and are the main point of contact throughout the exchange program.
Participants must have their English language proficiency evaluated or verified by a recognized English language test (TOEFL, Cambridge, etc.), by signed documentation from an academic institution or English language school, or through an in-person interview conducted by the sponsor, or by videoconference, or by webcam.
The maximum duration for the trainee category is 18 months except for the following restrictions those in agricultural and hospitality training programs, which are limited to 12 months. Any hospitality training program longer than six months must have at least three departmental rotations.
Midterm and final evaluations are required for training programs that exceed six months. For programs with durations of less than six months, a final evaluation is required. All evaluations must be received by the sponsoring organization prior to the end of the participant’s exchange program and must be signed by both the participant and his or her immediate supervisor.
The enhanced training program will provide quality opportunities to international participants. The regulations prohibit sponsors from placing trainees in unskilled or casual labor positions, in positions that require or involve child care or elder care, or in any kind of position that involves patient care or contact. Further, sponsors must not place trainees in positions that require more than 20 percent clerical or office support work. Use of the Exchange Visitor Program for ordinary employment or work purposes is strictly prohibited. Sponsors may not place trainee participants in positions which are filled or would be filled by full-time or part-time employees. Also, the training cannot duplicate a trainee participant’s prior training and experience.
§ The State Department allows training programs in the following occupational categories:
- Agriculture, Forestry, and Fishing
- Arts and Culture
- Construction and Building Trades
- Education, Social Sciences, Library Science, Counseling and Social Services
- Health Related Occupations
- Hospitality and Tourism
- Information Media and Communications
- Management, Business, Commerce and Finance
- Public Administration and Law
- The Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations.
- Transit Visa
§ See “C visa”
§ Departure outside the US
§ Some issues that may arise:
- Without advance permission to leave during pendency of adjustment application is considered abandonment. However, there is now an exception for persons in valid H and L status and their dependents and for K-3 and K-4 visa holders.
- Regulations permit but restrict the right of an asylum/withholding applicant to travel. Although an applicant may receive advance parole permitting him/her to travel, his/her return to the country of claimed persecution will be deemed an abandonment of the application, unless the applicant can establish compelling reasons for having assumed the risk of persecution in returning.
- A person granted refugee status under INA 207 or asylum under INA 208 may obtain a refugee travel document for one year’s duration by filing an I-131 application.
- During the pendency of an application under INA 209 an asylee may travel abroad. If s/he travels abroad and is inadmissible because the refugee travel document expired or one was not obtained, s/he may still adjust her status if paroled into the US Departure without advance parole of an asylee/refugee while their adjustment application is pending is not an abandonment of the application because adjustment is governed by 8CFR and not by 245.2,1245.2.
- A person in the H,L,O,P category who travels for personal or business reasons during the pendency of the extension may request USCIS to send a cable to the US consulate so the applicant can obtain a new visa.
- Two-(2)-year Foreign Residency Requirement (see J visa)
- § You may be eligible to receive a green card through Section 245(i) if you:
- Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
- Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
- Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
- Have a visa immediately available to you
- Are admissible to the United States
In addition, the qualifying immigrant visa petition or the qualifying application for labor certification must have been “properly filed” (signed and submitted with the correct fees) and “approvable” (meritorious based on the facts and “non-frivolous”) when filed.
Depending on the circumstances, a spouse or child of a grandfathered individual may also be grandfathered or may be eligible to adjust status as a dependent under Section 245(i) of the INA.
- U visa
§ To provide temporary immigration benefits to aliens who are victims of qualifying criminal activity, and to their qualifying family members, as appropriate.
- Unlawful Presence
§ Being present in the US “after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”
§ No period of unlawful presence that accrued before April 1, 1997 may be considered for inadmissibility under INA212.
- United States Citizenship and Immigration Service (USCIS)
§ US Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States.
§ Formerly known as Immigration & Naturalization Service (INS)
- US-VISIT Program
§ US-VISIT’s most visible service is the collection of biometrics—digital fingerprints and a photograph—from international travelers at US visa-issuing posts and ports of entry. Collecting this information helps immigration officers determine whether a person is eligible to receive a visa or enter the United States. The biometric collection process is simple, convenient and secure.
- V visa
§ Spouses of Green Card holders waiting at least 3 years to immigrate
§ V-1 Visa is suitable for:
- Spouse of a Green Card holder whose petition was filed on or before December 21, 2000, and has been waiting at least three years since the petition was filed, but an immigrant visa is not yet available.
- Spouse of a Green Card holder whose petition was filed on or before December 21, 2000, and has been waiting at least three years since the petition was filed, but there is a pending adjustment of status application.
- Violence Against Women’s Act (VAWA)
§ R. Violence Against Women Reauthorization Act of 2005—[PL 109-162, Title VIII; 119 Stat. 2960, 3053–77 (Jan. 5, 2006); HR Rep. 109-233 (as revised by Technical Amendments, PL 109-271, 120 Stat. 750, Aug. 12, 2006)]
§ 1. Amended T provisions to include: (a) state and local investigations along with federal investigations for trafficking; (b) investigations where trafficking is as least one central reason for the crime; and (c) family members without requiring extreme hardship. Amended INA §245(l) to allow adjustment of T applicants who have either accumulated 3 years of continuous presence since admission in T status or who have been continuously physically present during the investigation and prosecution of a trafficking case that in the AG’s opinion is complete, whichever time period is less. Applied VAWA confidentiality provisions to T applicants. Limited T status to 4 years unless officials need T holder to assist an investigation or prosecution. Allowed change of status under INA §248 notwithstanding any of the bars enumerated in that section.
§ 2. Amended U provisions to include family members without requiring extreme hardship or necessity for an investigation. Limited U status to 4 years unless officials need U holder to assist an investigation or prosecution. Allowed change of status under INA §248 notwithstanding any of the bars enumerated in that section.
§ 3. Amended unlawful presence provisions to except victims of severe forms of trafficking. INA §212(a)(9)(B)(iii)(V), 8 USC. §1182(a)(9)(B)(iii)(V).
§ 4. Preserved original priority date of self-petitioning LPR or derivative subject to domestic violence (including child who may have lost LPR status because abusive parent dies or terminates parent/ child relationship) and who has now aged-out. INA §§201(f)(4), 203(h)(4), 204(a)(1)(D); 8 USC. §§1151(f)(4), 1153(h)(4), 1154(a)(1)(D). Allowed children of USC’s subject to abuse to petition until age 25 if they can demonstrate that the “abuse was at least one central reason for the filing delay.” INA §204(a)(1)(D)(v), 8 USC. §1154(a)(1)(D)(v).
§ 5. Exempted battered children from the legal custody and 2-year residency requirement for adoption. INA §101(b)(1)(E)(i), 8 USC. §1101(b)(1)(E)(i).
§ 6. Defined VAWA self-petitioner under INA §101(a)(51), as an alien or child of an alien who qualifies for relief under: (1) INA §§204(a)(1)(A)(iii)–(v); (2) INA §§204(a)(1)(B)(ii) & (iii); (3) INA §216(c)(4)(C); (4) the Cuban Adjustment Act as a battered child or spouse; (5) HRIFA §902(d)(1)(B); (6) NACARA §202(d)(1); and (7) IIRIRA §309.
§ 7. Exempted VAWA self-petitioners from certain penalties for failure to voluntarily depart under INA §240B(d), if the extreme cruelty or battery was “at least one central reason for the alien’s overstaying the grant of voluntary departure.”
§ 8. Defined “exceptional circumstances” for in absentia orders as including battery or extreme cruelty to the alien or any child or parent of the alien. Applied retroactively.
§ 9. Provided that DHS, AG, and DOS should “particularly consider exercising their authority” to allow reapplication for admission after removal to VAWA 1994 cases, to T and U visa holders, and for battered spouses and children seeking special cancellation or suspension. [[Page 23]]
§ 10. Provided for employment authorization for VAWA self-petitioners when the petition is approved. INA §204(b)(1), 8 USC. §1154(b)(1).
§ 11. Prohibited VAWA self-petitioners from filing a NIV or IV petition on behalf of the abuser. INA §204(a)(1)(L), 8 USC. §1154(a)(1)(L).
§ 12. Allowed VAWA self-petitions for parents of USC’s or persons who were the parent of a USC who, within the past two years, lost or renounced US citizenship related to an incident of domestic violence or died. The parent can apply if she is a person of good moral character, may be classified as an IR, resides or has resided with the USC son/daughter, and demonstrates that she has been battered or subject to extreme cruelty by the USC son/daughter. INA §204(a)(1)(A)(vii), 8 USC. §1154(a)(1)(A)(vii).
§ 13. Allowed abused spouse or child under NACARA to petition for 18 months after Jan. 5, 2006, even if qualifying spouse did not petition for NACARA. Allowed abused spouse or child under HRIFA to petition at any time, even if qualifying spouse did not petition for HRIFA.
§ 14. Amended the Cuban Adjustment Act to permit a self-petition for 2 years after Cuban spouse dies as long as the non-Cuban resided with the Cuban spouse. Permitted self-petition for 2 years after termination of the marriage if marriage termination is connected to the battery or extreme cruelty by the Cuban spouse.
§ 15. International Marriage Broker Regulation Act of 2005 [Subtitle D of Title VIII]
- 15.a. Required K-1 and K-2 petitioners to provide a criminal record, if any, prior to approval of the petition. INA §§214(d)(1), 212(r)(1); 8 USC. §§1184(d)(1), 1182(r)(1). K-1 may not be approved if the petitioner previously filed two or more fiancée petitions and if the approved petition was filed within 2 years. DHS may waive this bar in its discretion, but waivers may not be granted for petitioners who have a record of violent criminal offenses, unless they can establish they have been battered or subjected to extreme cruelty and were not the primary perpetrator of the violence. INA §214(d)(2), 8 USC. §1184(d)(2). Once a petitioner has had two fiancée or spousal petitions approved, if a subsequent petition is filed within 10 years of the date the first petition was filed, DHS must notify the petitioner and the beneficiary of the new petition. INA §214(r)(4)(B)(i), 8 USC. §1184(r)(4)(B)(i).
- 15.b. Regulated international marriage brokers by: (a) prohibiting them from providing information on individuals under 18; (2) requiring them to obtain background information on US clients, including any listing on the state or national sex offender public registry, and any federal, state, or local criminal records; (3) prohibiting them from disclosing personal contact information of any foreign client to a US client until background checks have been performed and the results disclosed to the foreign national; and (4) prohibiting them from disclosing the personal contact information of any foreign national client to any person or entity other than the US client. Provided for civil and criminal penalties for violations. 8 USC. §1375a(d).
§ A person who has had long service or experience in a particular occupation or field; “A veteran of” military veterans, i.e., a person who has served or is serving in the armed forces, and has direct exposure to acts of military conflict, commonly known as war veterans (although not all military conflicts, or areas in which armed combat takes place, are necessarily referred to as “wars”)
§ A citizen of a foreign country who seeks to enter the United States (US) generally must first obtain a US visa, which is placed in the traveler’s passport, a travel document issued by the traveler’s country of citizenship. Certain international travelers may be eligible to travel to the US without a visa if they meet the requirements for visa-free travel. The Visa section of this website is all about US visas for foreign citizens to travel to the US
- Visa Waiver Program
§ Allows citizens of certain selected countries, traveling temporarily to the United States under the nonimmigrant admission classes of visitors for pleasure and visitors for business, to enter the United States without obtaining nonimmigrant visas. Admission is for no more than 90 days. The program was instituted by the Immigration Reform and Control Act of 1986 (entries began 7/1/88). Under the Guam Visa Waiver Program, certain visitors from designated countries may visit Guam only for up to 15 days without first having to obtain nonimmigrant visitor visas.
§ There are various types of nonimmigrant visas for temporary visitors to travel to the US, if you are not a US citizen or US lawful permanent resident. The purpose of your intended travel and other facts will determine what type of visa is required under US immigration law. It’s important to have information about the type of nonimmigrant visa you will need for travel, and the steps required to apply for the visa at a US Embassy or Consulate abroad.
- Vocational Students
§ See M visa
- Voluntary Departure
§ The departure of an alien from the United States without an order of removal. The departure may or may not have been preceded by a hearing before an immigration judge. An alien allowed to voluntarily depart concedes removability but does not have a bar to seeking admission at a port-of-entry at any time. Failure to depart within the time granted results in a fine and a ten-year bar to several forms of relief from deportation.
- Voting Unlawfully
§ Person who has voted in violation of any federal, state or local constitutional provision, statute, ordinance, or regulation is inadmissible if:
- Voting occurred before, on, or after Sept. 30, 1996
- Consular officer may consider whether it was a knowing violation where a knowing violation was required
- Person permanently resided in US prior to 16
- Parents were or are USCs
- Person reasonably believed at the time of such violation that he or she was a USC
§ A. Forms of Relief—A person seeking relief from removal may be eligible for several forms of relief including: voluntary departure, cancellation of removal (formerly §212(c) relief and suspension of deportation), adjustment of status, asylum, withholding of removal, protection under CAT, certain waivers of removability or inadmissibility, nunc pro tunc permission to reapply after removal, estoppel, collateral attack on a previous removal order, deferred action, and private legislation.
§ Waiver.–The Attorney General has sole discretion to waive clause in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.
§ DHS Appropriations Act for FY 2010—PL 111-83, 123 Stat. 2142 (Oct. 28, 2009); 155 Cong. Rec. H1395-404
- Eliminated the “widow’s penalty” by allowing a widow(er), whether or not married for two years to a USC at the time of his or her death, to self-petition for LPR status within two years of the USC spouse’s death unless he or she remarries. (§568(c)). This section applies to all petitions pending on or after Oct. 28, 2009. If the USC spouse died before Oct. 28, 2009, the widow(er) can still file but must not be remarried and must self-petition by Oct. 28, 2011. This provision includes persons whose petitions were denied previously.
- Withholding of Removal
§ The principal characteristic of temporary removal relief is that it is of short duration or otherwise limited in some manner. Temporary forms of relief include (1) temporary protected status; (2) withholding of removal; (3) stay of deportation; (4) voluntary departure; (5) Convention Against Torture relief; (6) deferred action; (7) deferred enforced departure; and (8) extended voluntary departure. All of these forms of relief—with the exception of the last three (deferred action, deferred enforced departure, and extended voluntary departure)—have a statutory basis.
- Work Authorization
§ The United States welcomes thousands of foreign workers in multiple occupations or employment categories every year. These include artists, researchers, cultural exchange participants, information technology specialists, religious workers, investors, scientists, athletes, nurses, agricultural workers and others. All foreign workers must obtain permission to work legally in the United States. Each employment category for admission has different requirements, conditions and authorized periods of stay. It is important that you adhere to the terms of your application or petition for admission and visa. Any violation can result in removal or denial of re-entry into the United States.