Immigration Law and Policy

Immigration Law and Policy (Chapter 1) Overloading the boat ▪ The country cannot accept unlimited immigrants to the country without facing some type of negative economic consequence Critique: metaphor oversimplifies immigration dynamics such as the labor...

Immigration Law and Policy (Chapter 1) Overloading the boat ▪ The country cannot accept unlimited immigrants to the country without facing some type of negative economic consequence Critique: metaphor oversimplifies immigration dynamics such as the labor market dynamics, demographic shifts, and the economic contributions of immigrants Immigration door ▪ Opening the door completely will allow unlimited refugees to enter and can place our resources of land, food, shelter, jobs, and goods in jeopardy ▪ After 9/11, changes in the attitudes fueled by xenophobia saw more people wanting the immigration door to be closed ▪ Immigration fraud Use of documents, misrepresentation of identity status, etc Can impact immigrants when they enter US since they have no legal right to be in the country American system of government ▪ Two-tiered system: federal and state systems ▪ Created by the constitution; federal law is superior to state law ▪ Three branches of government: judicial, legislative, executive ▪ Immigration and Nationality Act of 1990 sets forth immigration law and policy for the US Major changes to the INA came in 1996 1996 amendments  Illegal immigration reform and immigrant responsibility act  Anti-terrorism and effective death penalty act (AEDPA)  Personal responsibility and work opportunity reconciliation act (PRAWORA) ▪ Immigration and Nationality Service is now known as DHS; administrative agency that was responsible for executing the INA ▪ Department of Homeland Security created to maximize national security and they handle immigration matters Replaced the INS 3 subagencies: BCBP (Border of customs and border protection), BCIS (bureau of citizenship and immigration services) and BICE (bureau of immigration and customs enforcement) Common definitions ▪ Alien: a person in the US who is a citizen ▪ With inspection: process of alien being lawfully admitted ▪ Without inspection: entering the US without being lawfully admitted ▪ Legal alien: an alien who is legally in the US ▪ Emigrant: person who leaves their country with the intent to permanently settle in another  ▪ Immigrant: a person who has arrived into another country with the intent to permanently settle ▪ Nonimmigrant: a person in another country without the intent to permanently remain ▪ Visa: written official approval permitting a person to enter the US as an immigrant or nonimmigrant ▪ Consulate: branch of the US embassy that grants visas to eligible persons who want to travel to the US ▪ Embassy: residence and place of business of an ambassador; typically grant visas to eligible persons who want to travel to the US Sources of law ▪ Constitution ▪ Statutes ▪ Case law ▪ Administrative decision: decisions from the BIA ▪ Black letter law  Types of Visas (Chapter 2) A Visa: foreign government rep ▪ accredited foreign government representative B visa: visitors ▪ visitors ▪ for fun/leisure, renewable time limit, cannot try to remain in US C visa: visitor in transit ▪ changing airplanes in the US D visa: crew members ▪ people who work on vessels E visa: treaty traders and investors ▪ 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 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 F visa: Academic students ▪ granted to students G/N Visa: certain foreign government representative ▪ special nonimmigrant visa available to certain foreign government representatives if these governments are members of certain international organizations that enjoy certain privileges and immunities H visa: temporary workers- RN and professionals ▪ granted to RN and professionals who have at least a baccalauretae degree or certain relevant work experience. ▪ INA requires alien receive prevailing wages and the job have no adverse affect on US workers ▪ 3 years long, renewable, allows for change of status I visa: foreign media representative ▪ members of media of foreign country and their families; may enter to take part in activities related to their media status J/Q visa: exchange vistors ▪ people who are students, professors or other scholar may enter to teach or learn a particular course or program ▪ Q visa for specific international exchange programs exchange visitor ▪ 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  K visa: 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 ▪ extensions not available K3/V visa: life visa ▪ for aliens waiting to become immigrants ▪ k3: certain family members of US citizens ▪ V visa: certain family members of US immigrants who are not citizens L visa: intracompany transferee ▪ people who work in foreign company that as affiliated sites in the US ▪ must have worked for the parent company for a period of time and 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 M visa: vocational students ▪ students who undergo nonacademic course of study (auto mechanics, locksmiths, plumbers) ▪ issued for duration of course of study O/P visa: alien with extraordinary ability or international recognition ▪ performers, artists, or scholars who are internationally recognized in their field to enter Us to engage in an activity related to their status ▪ O visa: extraordinary ▪ P visa: international recognition R visa: religious workers ▪ people who have been authorized by their respective religions to perform specific religious functions TN visa: NAFTA ▪ citizens of Canada and Mexico who wish to enter as nonimmigrants have route that is quicker than non- north american countries full time status for K3/V visa ▪ alien admitted must enroll as full time student ▪ if they fail or fall out of full-time status, may be required to leave the US On campus employment for K3/V visa ▪ 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 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 will pay the student the prevailing wage and the student will not work more hours per week than permitted for on campus employment  good standing for K3/V visa ▪ required for off campus employment and must be substantial period of time; usually one year Prevailing Wage ▪ the wage at which the US department of labor determines to be the competitive rate in a particular occupation Curricular Practical Training ▪ permission for alien nonimmigrant students who have not completed their course of study to work in a certain capacity and for a certain period of time post completion practical training ▪ permission for alien nonimmigrant students who have completed their course of study to work in a certain capacity and for a certain period of time  Relative-Based Immigrants (Chapter 3) Legal permanent resident ▪ A legal US immigrant who is not a citizen ▪ Green card/Alien registration card: identification card issued to a LPR that confirms their status as a lpr Types of Relatives ▪ 3 classifications Immediate relatives: spouse, parent, and children of US citizen Relative subject to numerical limitations All other relatives Immediate relatives: allowed in unlimited amounts as long as they are not disqualified for another reason Spouses  Immigration marriage fraud: act of an alien and a citizen entering into a marriage for the primary purpose of benefiting the alien’s immigration status  Immigrations marriage amendments: designed to prevent fraudulent marriages solely to obtain citizenship by granting two-year conditional status on the marriage Status lasts two years Conditional status not applicable when the couple has been married longer than 3 years  If marriage does not last (divorce or annulment), the immigrant can provide evidence like wedding photos/videos, statements from friends, relatives, etc about their marriage while they were together  If there were evidence of abuse toward the immigrant in their marriage, the conditional status will be uplifted, and immigrant will have to provide evidence for a hardship waiver Children: male or female under 21 years of age  Children refer to unmarried offspring under the age of 21 Son: male offspring that is over 21 and married, or single and over 21 years old Daughter: female offspring that is over 21 and married, or single and 21 years old  Alien children born out of wedlock to a US citizen must be legitimated to become LPR Must get married and formally adopt the child Parents  Eligible once their child turns 21 years old  Relatives subject to numerical limitations ▪ Numerical limitations: restrictions in the number of applications made to DHS during particular period of time First preference: Unmarried sons and daughters of US citizens, spouses  Over 21 years old of US citizen  No waiting time, highest preference level  No numerical limitations Second preference: Spouses, children, and unmarried sons and daughters of LPR  Also includes any unmarried offspring of any age of LPRs Third preference: Married sons and daughters on US citizens  Married, regardless of age Fourth preference: Brothers and sisters of US citizens  Citizens are at least 21 years old ▪ Numerical limitations on certain countries Certain quotas or limitations on the amount of immigrants allowed from a country ▪ Number is constantly changing ▪ Priority dates Priority date: Date given by the DHS to noted that the immigrants application that was already approved has already been received Life act: Allows those who are eligible for K3 or V visa to receive nonimmigrant visa in the meantime  Employment Based Immigrants (Chapter 4) Labor certification: approval by the department of labor of the state in which aliens seek to work and then by the US dept of labor Qualification for the position ▪ Must have a firm offer from a specific job ▪ Prove you can do the job Necessary education, training, previous experience ▪ Employer proves the requirements are genuine Show that no US citizen or LPR is ready and willing to do the job Employer must pay prevailing wages First preference- priority workers ▪ Priority workers: 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 Someone who made an extraordinary contribution to one or more of these fields Have national or international fame, universally renowned status within their field Numerous published works in their field ▪ Outstanding professions and researchers Have international recognition or made significant contributions to their field through research, publications, or other efforts ▪ Certain multinational executives or managers Depending on the length and nature of their work Second preference: professionals holding advanced degrees or persons of exceptional ability ▪ Exceptional ability: person who has achieved excellence in a particular field ut is not uniquely outstanding ▪ Advanced degree: academic degree beyond a baccalaureate degree or bachelor’s degree (MD, JD, PhD, MBA) Third preference: skilled workers in short supply, people with bachelor’s degrees, and other workers in short supply ▪ Skilled workers: Someone who has at least two years of training or experience in the field of the offered position ▪ Workers in short supply: unskilled workers that has do not have at least two years of training or experience farmworkers Fourth preference: certain special immigrants ▪ religious workers ▪ former employees of the US government if their LPR status lapsed then the person may be eligible to regain that status  ▪ employees of international organizations Fifth preference: employment creation visas ▪ People who invest one million dollars in an enterprise that will create at least 10 US jobs qualify  Other Types of LPR Status (Chapter 5) Diversity immigrants ▪ Diversity-based immigration: Gives diversity immigrant visas for persons from countries that have been adversely affected by immigration capability Reserved for historically underrepresented countries ▪ Lottery: an actual lottery where aliens eligible for diversity immigration may receive LPR status if their names are selected from the drawing Registry ▪ Registry: 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  Entered the US before 1972  Has resided here continuously since entering  Is a person of good moral character Have led a clean, crime free life  Is not otherwise ineligible Amnesty ▪ Amnesty: process where legal or illegal aliens were permitted to become LPRs if they arrived in the US before 1982; provision has expired ▪ Commonly referred to as the Reagan Law ▪ Amnesty received heavy backlash in the aftermath of 9/11 when President Bush explored the idea of granting amnesty for immigrants less likely to be terror threats Asylum ▪ Asylum: process where aliens who qualify as refugees, permitting aliens 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 ▪ Changing status from nonimmigrant to immigrant ▪ Aliens who have been granted asylum may become LPR after one year ▪ Minimum adjustment of status requirements They have applied for adjustment of status Eligible to receive an immigrant visa and is admissible to the US as a permanent resident An immigrant visa is immediately available to them at the time the application is filed ▪ Adjustment of status for legal aliens Admission: physical presence and freedom from official restraint in the US Parole: permission granted to an alien who is found to be excludable to leave the US border without being places in custody with the promise that he will be present at his removal hearing A person can show they were inspected and admitted by showing the I-94 form If they then want to apply for adjustment of status, 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