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Immigration Law
Rutgers University, Newark School of Law
Hyde, Alan

Immigration Law Outline

Professor Alan Hyde

Spring 2011

A. Categories of People

1. Immigrant §203: (defined by §101(a)(15) “every alien except an alien who is within one of the following classes of non-immigrant aliens”)

a. Quota System:

i. Exempt from general Quotas:

1. Immediate relatives (spouses, parents of over 21s, children)

2. LPRs returning from temporary visits abroad

3. Some former US citizens

4. Children born to LPRs abroad

5. Recipients of permanent discretionary relief

6. Those fleeing persecution (have their own quotas)

7. “Parolees” (usually allowing non-citizens to come for urgent personal reasons or to allow applicants for admission to remain pending application – a grant of parole is not an admission)

8. Congress occasionally admits a special group on an ad-hoc basis

a. Relief for nurse shortage, eg

b. One-time statutes admitting underrepresented countries or people who arrive as part of an unusual migration

ii. General Quotas: Subject to total limits + country limits

1. Family (in order of preference) §203(a): Total annual worldwide limit for family-sponsored immigrants: 480K – No. of immediate relatives (including children born abroad to LPRs temporarily abroad) admitted in the preceding fiscal year + any employment based visas that were available the preceding fiscal year but were not used (Certain grants of parole also slight reduce annual ceiling § 201(c)(1)(A)(ii)). However, in any year in which that formula produces a number less than 226K, they will bump up the ceiling to 226K:

a. Over 21 unmarried children of US citizens

i. Annual allotment: 23,400 max/ yr + any left over from (iv) brothers and sisters category

b. LPR spouses/ children or over 21 unmarried children

i. Annual allotment: 114,200 max/ yr + any amount over the 226K ceiling for total family sponsored immigrants determined by Congress for that year + any left over from (I – over 21 unmarried children) except that at least 77% of the visas in this sections will go to the spouses and children (under 21) of LPRs.

ii. 2 sub-groups:

1. 2As: spouses and under 21 children of LPRs – receive 77%

a. 75% of this group is exempt from per-country limits

2. 2Bs: over 21 unmarried children of LPRs

c. Married over 21 children of citizens

i. Annual allotment: 23,400 max/ yr + any visas left over from (i) and (ii)

d. Siblings of citizens over 21

i. Annual allotment: 65K max/ yr + any left over from (i), (ii) and (iii)

e. Issues to watch for:

i. Waiting times depend on supply and demand of visas varying according to preference category and depending on country.

1. Child Status Protection Act (2002): Sometimes children “age-out” – the legislation means processing times aren’t counted against child

a. For immediate relatives of US citizens – age is frozen when petition is filed.

b. For children of LPRs – use age at the time the visa becomes available, but reduced by the amount of time the visa petition was pending, as long as the beneficiary files the necessary forms with the co

elative after the date of the citizen’s death but only if the spouse files a petition … within 2 yrs after such date and only until the date the spouse remarries.”

v. 9th Circuit says second sentence irrelevant and only the fact you are a spouse matters – the second sentence is only relevant when a person who might have filed for conditional LPR status didn’t get around to it in time (suggesting you could file a self-petition after death)

vi. Other courts/ gov’t disagree and apply the second sentence so you couldn’t be considered a spouse.

vii. Practically, this means that anyone who applies when they have been married already for two years, will have LPR status granted immediately, whereas if it is less than 2 years old, conditional status will be granted for two years.

viii. Main Point: if you’ve been married almost two years, it’s better to wait until the two years have passed and apply for straight LPR status straight away.

b. The conditional resident and spouse have an affirmative duty to jointly petition for removal of the condition and to appear at an interview in connection with that petition.

c. § 216(b)(1) Petition must be filed during 90 day period immediately preceding the second anniversary of the person’s admission for permanent residence.