IMMIGRATION LAW
GOSSERT
FALL 2012
1) Plenary power of congress:
a) Congress has the power to legislate immigration law – prevails on constitutional challenges.
i) Power is derived from various parts of the Constitution:
(1) Commerce Clause
(a) Power to regulate commerce with foreign nations.
(2) Migration Clause
(a) Power to prohibit migration and importation (after 1808).
(3) Naturalization Clause
(a) Authority to establish uniform rule of naturalization.
(4) War Clause
(a) Power to regulate Alien Enemies.
(5) U.S. Supreme Court:
(a) Government has the power to exclude aliens and make immigration laws (Ping).
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(6) “Necessary and Proper” clause.
ii) Due Process:
(1) Procedural:
(a) Exclusion: Whatever procedure Congress authorizes for exclusion, it is due process for alien entry (Shaughnessy).
(i) May exclude without a hearing.
(b) Deportation:
(i) Excluded noncitizens cannot invoke due process (Yamataya).
(ii) Returning LPR can invoke due process
(iii) Non-citizens generally:
1. Cannot deport without notice and opportunity to be heard.
(2) Substantive:
(a) Deportation is a civil matter (not criminal).
(i) Ex Post Facto does not apply (Harisiades).
(b) Detention is limited to reasonable time necessary to deport (cannot have indefinite detention) (Zadvydas).
(i) 90 days is a reasonable time (after 90 days, government must show deportation is foreseeable).
1. Once deportation is no longer foreseeable, detention is no longer authorized.
a. If they cannot deport, must show why continued detention is necessary.
2) Visas/Preferences:
a) Every person entering the US is presumed to be an intended immigrant.
i) Immigrant: permanent resident in the US giving up residence in other countries
ii) Overcome that presumption at entry
(1) Visitor visa: if there is doubt that you intend to remain temporarily, there can be secondary review/ inspection
iii) Immigrant: establish your status as admissible
(1) If admitted: LPR
b) Not precluded from filing multiple visas!
c) Terms:
i) Petitioner: person filing for someone else to come to the US (US citizen)
ii) Beneficiary: those who get the visa
iii) Filing: when received (no mailbox rule)
iv) Priority date: date of filing
v) Availability date: date visa comes and you can enter the US as long as you're admissible
vi) All visas include derivatives:
(1) Derivatives: spouse/ children attached to the principal beneficiary who has a visa
(2) Accompanying: coming with or coming within 6 months of alien who has a good visa
(3) Following to join: as long as the LPR has good status and you have good status as spouse/ child, can join
(a) Ex: following as a spouse–> divorce–> not derivative anymore
(b) Ex: following child of LPR turns 21–> not a derivative anymore
(c) No derivatives for emancipated children/ over 21 children
(4) “Aging Out”: Child becomes 21 or older.
(a) Child Status Protection Act:
(i) Immediate Relative: Child’s age is frozen at time of filing.
(ii) LPR: Child’s age at time visa becomes available MINUS amount of time visa petition is pending (date filed to date available).
d) Formula:
i) Immigrant = meets statutory requirements + quota (if applicable) – ineligibility grounds.
e) Visa approved –> change status to LPR
i) Must emigrate to the US once visa is approved and be admissible
f) Family-based visas (most popular):
i) Immediate relatives: spouse/ parent/ child of US citizen
(1) No numerical limit on these people
(2) Child: 101(b)
(a) Unmarried, non-emancipated, under 21
(b) Stepchild under 18
(c) Born in wedlock
(d) Legitimated child: US citizen father steps in and acknowledges child before 18
(e) Out of wedlock with a legitimate relationship with the parent
(f) Adopted under 16
(g) Child Status Protection Act: locks in age on day of filing of petition to prevent ageing out
(i) Married while file is processing/ emancipation: petition is no longer valid
(3) Spouse: legally married, free of encumbrances, purpose of building a life together
(4) Parent (biological): US citizen child can petition on parent's behalf
ii) Family-based PREFERENCES: numerical limitations:
(1) FB1: unmarried son/ daughter of US citizen (over 21)
(a) Not in immediate relative
(2) FB2A: spouse/ child of LPR
(a) Same definitions of spouse and child
(b) Child Status Protection Act does not apply to children of LPR
(c) Can get credit in age for delay time in adjudicating your petition by the government
(i) No credit for the time you wait for your priority date
(3) FB2B: unmarried son/ daughter of LPR (over 21)
(a) Does not include parents of LPR: no FB visas for them
(b) Does not include married sons/ daughters of LPR: no FB visas for them
(4) FB3: married son/ daughter of US citizen
(a) Includes derivatives
(5) FB4: brothers and sisters (biological) of US citizens
(a) Married or unmarried
(b) Includes derivatives
(6) Ascending visa: can move up visa categories
(a) Ex: parent/ spouse LPR becomes US citizen –> immediate relatives/ FB1 visa (depending on relationship/ age)
(7) Descending visa: can move down visa categories
(a) Ex: FB1 gets married –> FB3
iii) Marriage Fraud Act: 216(a) scrutinize a marriage that occurs after someone is put in proceedings for removal (presumed fraudulent but it is rebuttable)
(1) Any marriage to a US citizen that is less than 2 years old is scrutinized
(a) Only applies to US citizen/ spouse of LPR
(b) Employment-based visa's spouse gets full green card, not CPR no matter how long you've been married
(2) Conditional Permanent Residency: Marry a US citizen and apply for LPR through immediate relative petition: you're not an LPR, you're a Conditional Permanent Resident (CPR) – INA 216.
(a) 2 years of CPR (CPR starts at petition for residency, not marriage)–> DHS looks at marriage
(i)
ng or researching
2. Must be on tenure track position.
3. Must show receipt of major prizes or awards.
(c) Multinational Executives and Managers – INA 203(b)(1)(C).
(i) Must be managing the organization or supervising.
(2) NO LABOR CERTIFICATION REQURED: US workers are not adversely affected b/c they're contributing to US culture.
(3) Visas are always available.
(4) Can file the petition themselves.
(5) Must show 3 of the following: recognized prizes, published material about them, contributions, authorships, exhibitions, high salary, commercial success, etc.
(6) Or: one-time achievement of an international award stands alone for admittance (ex: Nobel Peace Prize)
(7) Subcategory: outstanding professors/ researchers
(a) Minimum 3 years teaching/ researching, internationally recognized in their discipline, coming here for tenure/ tenure track, no labor certification but you need a job offer/ employer to file the petition
(8) Subcategory: multinational executives/ managers employed abroad for 1 year in the last 3 years prior to entry
(a) No labor certification required but you need a job offer/ employer to file the petition
iv) EB2: Two Categories – INA 203(b)(2):
(1) Categories:
(a) Members of a profession holding Advanced Degrees:
(b) People with exceptional ability in science, arts or business:
(i) Will substantially benefit the US economy and are sought by US employers
(2) Need a job offer from a U.S. employer – INA 203(b)(2)(A).
(a) National Interest Waiver – INA 203(b)(2)(B):
(i) Area of employment of “substantial intrinsic merit;”
(ii) Person’s employment will benefit the nation, not just the local area; AND
(iii) The particular applicant “will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualification.
(3) NEED LABOR CERTIFICATION – INA 212(a)(5)(A), (C):
(4) Visas are immediately available except for Chinese/ Indians (must wait 4 years)
(5) Need a masters or exceptional degree OR bachelors + 5 or more years of constant promotion (might be qualified as masters-equivalent)
(6) Need a position ordinarily requiring advanced degree
(7) Examples: degree/ award from college in the field, 10 or more years experience in the occupation, license in the occupation, a lot of money/ high salary for exceptional work, membership in professional association, recognition by peers in the industry
