Immigration Law: Key Concepts and Definitions

• Below is a summary of immigration law and relevant policy

Immigration Basics

• The country cannot accept unlimited immigrants without negative economic consequences.
• Unlimited refugee entry would strain resources like land, food, shelter, jobs, and goods.
• Post-9/11 xenophobia increased calls for stricter immigration control.
• Immigration fraud includes documenting and misrepresenting identity.
• American immigration law operates on a two-tiered system: federal and state.
• Federal law, established by the Constitution, supersedes state law, and is enforced by three government branches: judicial, legislative, and executive.
• Immigration law and policy for the US is set forth in the Immigration and Nationality Act of 1990.
• Major INA changes occurred in 1996 through amendments like the Illegal Immigration Reform and Immigrant Responsibility Act, the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and the Personal Responsibility and Work Opportunity Reconciliation Act (PRAWORA).
• The Immigration and Nationality Service (INS) is now the Department of Homeland Security (DHS).
• The DHS was created to maximize national security.
• The DHS replaced the INS, and oversees immigration.
• DHS subagencies include BCBP (Border of Customs and Border Protection), BCIS (Bureau of Citizenship and Immigration Services), and BICE (Bureau of Immigration and Customs Enforcement).
• An Alien is a person in the US who is not a citizen.
• "With inspection" refers to the process of an alien lawfully admitted.
• "Without inspection" refers to entering the US without being lawfully admitted.
• A legal alien is an alien who is legally in the US.
• An emigrant is someone who leaves their country intending to settle permanently in another.
• An immigrant is someone who has arrived in another country intending to settle permanently.
• A nonimmigrant is someone in another country without the intent to permanently remain.
• A visa is a written official approval permitting someone to enter the US as an immigrant or nonimmigrant.
• A consulate is a branch of the US embassy that grants visas to those traveling to the US.
• An embassy is the residence/office of an ambassador, typically granting visas to those eligible to travel to the US.
• Sources of immigration law include the Constitution, statutes, case law, administrative decisions from the BIA, and black letter law.

Visa Types

• There are many different types of visas that are designed for different purposes
• An A Visa is for accredited foreign government representatives

B Visa for Visitors

• Visitors can come for fun/leisure
• Has a Renewable time limit
• Visitor cannot try to remain in the US

C Visa for Visitors in Transit

• For visitors changing airplanes in the US

D Visa for Crew Members

• For people who work on vessels

E Visa for Treaty Traders and Investors

• For people who engage in trade related to US treaties or invest money in a treaty venture
• Treaty Trader: An alien who may enter the US as a nonimmigrant to engage in trade of commerce of navigation based on a treaty between the US and their country
• Treaty Investor: An alien who may enter the US as a nonimmigrant to invest money in goods or services involved in the trade or commerce of navigation based on treaties between the US and their country

Academic Visas

• F Visas are for Academic students.
• G/N Visas are for certain foreign government representatives.
• A Special nonimmigrant visa is available to certain foreign government representatives if these governments are members of certain international organizations that enjoy certain privileges and immunities.
• H Visas are for temporary workers like RNs and other Professionals.
• These are granted to RNs and professionals that must at least possess a baccalaureate degree or certain relevant work experience.
• INA requires alien receive prevailing wages and the job have no adverse affect on US workers.
• Visas are 3 years long, renewable, and allow for change of status.
• I Visas are for foreign media representatives.
• Members of media of foreign country and their families may enter to take part in activities related to their media status.
• J/Q Visas are for exchange visitors
• People who are students, professors or other scholar may enter to teach or learn a particular course or program
• Q visas are for specific international exchange programs
• Exchange visitor: An alien who enters the US an nonimmigrant to teach or learn an academic program or course similar to the course of study in the alien's own country

Fiancé Visas

• K visas are for fiancés of US citizens
• People who are engaged to be married to US citizens may obtain limited visa to enter the US to get married
• There are no extensions available

K3/V visas for waiting immigrants

• Those waiting to become immigrants

L Visa for Intracompany Transferees

• People who work in a foreign company that has affiliated sites in the US
• Must have worked for the parent company for a period of time
• Must possess special skills necessary for employment in the US affiliate
• Intracompany Transferee: An alien who enters as a nonimmigrant because they work for a foreign company which has or will have affiliated sits in the US and who will work at one or more of these sites

Visa for vocational students

• M visas are for vocational students.
• It is issued for the duration of the course of study.

O/P Visas

• For aliens with extraordinary ability or international recognition
• O visas are for extraordinary people
• P visas are for those with international recognition

R Visa for religious workers

• People who have been authorized by their respective religions to perform specific religious functions.

TN Visa for NAFTA

• Canadian and Mexican citizens wishing to enter as nonimmigrants have a faster alternative to non-North American countries.
• Full-time Status for K3/V Visa, the alien admitted must enroll as a full-time student
• They may be required to leave the US if they fall out of full-time status due to failing etc.
• On-Campus Employment for K3/V Visa: A student may work on campus for limited hours per week, provided that the position does not displace a US resident
• When school is not in session, they may increase their work hours for K3/V Visa.

Off-Campus Employment for K3/V Visa

• Generally not permitted to work off campus unless student has been in good standing for specific amount of time
• The prospective employer has not successfully recruited US workers for specific period of time
• The employer must still pay the student the prevailing wage.
• They will not work more hours per week than permitted for on-campus employment
• Good standing is required for K3/V visa
• Off-campus employment must be of a substantial period of time; usually one year.
• Prevailing Wage is the wage at which the US department of labor determines to be the competitive rate in a particular occupation
• Curricular Practical Training provides permission for alien nonimmigrant students who have not completed their course of study to work in a certain capacity and for a specific period of time
• Post-Completion Practical Training is permission for alien nonimmigrant students who HAVE completed their course of study to work in a certain capacity and for a specific period of time

Relative-Based Immigration

• Chapter 3 discusses relative-based immigrants.
• A Legal Permanent Resident (LPR) is a legal US immigrant who is not a citizen
• A Green Card/Alien Registration Card is an identification card issued to an LPR confirming their status
• Relatives are classified into 3 types.
• Immediate relatives include a spouse, parent, and children of US citizens
• Relatives subject to numerical limitations
• All other relatives

Immigration Marriage Fraud

• Immediate Relatives are allowed in unlimited numbers as long as they are not disqualified
• Spouses, an act of an alien and a citizen entering into a marriage for the primary purpose of benefiting the alien's immigration status is known as immigration marriage fraud
• Designed to prevent fraudulent marriages to obtain citizenship immigrations marriage amendments grant two-year conditional status on the marriage
• The status lasts two years.
• This conditional status is not applicable when the couple has been married for longer than 3 years
• If the marriage fails, the immigrant can provide evidence like photos/videos, statements from friends/relatives etc
• If there was abuse towards the immigrant in their marriage, the conditional status will be uplifted, and the immigrant will have to provide evidence for a hardship waiver

Rules for immigrating Children

• Children are defined as male or female, and under 21 years of age
• They must be unmarried offspring
• Sons must be male offspring that is over 21 and currently married, or single and over 21 years old
• Daughters are female offspring who are over 21 and currently married, or single and over 21 years old
• Alien children born out of wedlock to a US citizen must be legitimated to become LPR
• They must get married and formally adopt the child

Rules for immigrating Parents

• Parents are eligible once their child turns 21 years old.
• Relatives are subject to numerical limitations.
• Numerical limitations are restrictions in the number of applications made to DHS during a particular period.

Immigration Preference

• First preference is unmarried sons and daughters of US citizens/spouses
• They are over 21 years old
• This has no waiting time, and is the highest preference level so has no numerical limitations
• Second preference includes spouses, children, and unmarried sons and daughters of LPR
• It also includes any unmarried offspring of any age of LPRs.
• The third preference is married sons and daughters on US citizens
• No limit on age if married
• The fourth preference is brothers and sisters of US citizens
• Citizens must be at least 21 years old
• There are numerical limitations on certain countries
• There are quotas or limitations on how many immigrants are allowed from a specific country at a given time.
• The number of immigrants allowed is constantly changing
• Priority dates matters, and is given by the DHS
• It notes that the immigrants' application has already been approved
• Life Act allows those eligible for K3 or V visas to receive nonimmigrant visas in the meantime

Employment Based Immigration

• Labor certification is approval by the department of labor of the state in which aliens seek to work and then by the US dept of labor
• To qualify for a position, the immigrant: Must have a firm offer from a specific job, prove can do the job, and has the necessary education, training, and previous experience
• Employee must prove the requirements are genuine
• Show that no US citizen or LPR is ready and willing to do the job and must pay prevailing wages
• First preference is priority workers
• In this case we're talking about people of extraordinary ability in the sciences, arts, education, business or athletics, outstanding professors and researchers, or certain multinational managers and executives
• Persons with extraordinary abilities in the sciences, arts, education, business or athletics
• Additionally, someone who made an extraordinary contribution to one or more of these fields, has national or international fame, universally renowned status within their field and numerous published works in their field may be considered a priority worker.
• They can be outstanding professions/researchers
• Can have international recognition or made significant contributions to their field through research, publications, or other efforts
• It could be certain multinational executives or managers and depends on the length and nature of their work
• Second preference includes professionals holding advanced degrees or persons of exceptional ability
• Exceptional ability: person who is outstanding in their field but is not uniquely outstanding
• An advanced degree is an academic degree beyond a baccalaureate degree or bachelor's degree (MD, JD, PhD, MBA)
• The third preference is skilled workers in short supply, and includes people with bachelor's degrees and other workers in short supply
• Skilled workers are those with someone with at least two years of training or experience in the field they are being offered the position in
• This also refers to workers in short supply: unskilled workers without at least two years of training or experience
• Farmworkers should also be considered here
• The fourth preference covers certain special immigrants like religious workers and former employees of the US government
• Their LPR status may be eligible to regain if it has lapsed employees of international organizations
• The fifth preference covers employment creation visas
• Additionally, people who invest one million dollars in an enterprise that will create at least 10 US jobs qualify

Other Types of LPR Status

• Diversity-based immigration gives diversity immigrant visas for persons from countries that have been adversely affected by immigration capability
• This is reserved for historically underrepresented countries
• A lottery is where aliens eligible for diversity immigration may receive LPR status if their names are selected.
• Registry provides a status that provides for legal or illegal aliens to become LPRs because they have continuously resided in the US before 1972
• To qualify aliens must demonstrate Enter the US before 1972, have resided here continuously since entering, are a person of good moral character, have led a clean, crime-free life, and are not otherwise ineligible
• Amnest is a process where legal or illegal aliens could become LPRs if they arrived in the US before 1982
• Amnesty is sometimes called The Reagan Law
• Amnesty received heavy backlash when President Bush was criticized as being too soft on terror threats.
• Asylum is a process where aliens who qualify as refugees are permitted to lawfully remain in the US and become LPRs
• Asylum seekers must establish they have a well-founded fear of persecution in their home country
• Adjustment of status is changing from nonimmigrant to immigrant aliens who have been granted asylum may become LPR after one year
• Some minimum adjustment of status requirements includes that they: Have applied for adjustment of status, are eligible to receive an immigrant visa and is admissible to the US as a permanent resident, and an immigrant visa is immediately available to them at the time the application is filed
• Adjustment of status for legal aliens
• Admission is physical presence and freedom from official restraint in the US
• Parole is permission granted to an alien excludable to leave the US border without being placed in custody with the promise to be present at their removal hearing
• A person can show they were inspected and admitted by showing form I-94
• a visa must be available to them immediately if: They are an immediate relative of a US citizen their priority date is current.
• Adjustment of status for illegal aliens
• Entry with inspection: Applies to aliens who entered with DHS knowledge
• Entry without inspection: Aliens who entered without DHS