Immigration Outline
Plenary Power of Congress: pages 1-6 of notes
Congress, through its plenary power, has the right to make our immigration laws, to include control of the people we invite to come to the US and those we don’t want to come; in many instances the SC states that Congress has the plenary power to pass immigration laws, via:
Commerce Clause
migration clause: congress by legislation may prohibit migration and importation
naturalization clause: gives congress authority to establish a uniform rule of naturalization
war clause: congress can regulate alien enemies
Visas:
Immigrant: coming here with the intention of abandoning their residence of the countries they lived in, and coming to live here permanently à LPR’s green card holders
Non-Immigrant: coming here temporarily with no intention to abandon their residency abroad, and if they have an intention to stay here then they’re inadmissible
Immigrant Visas: subject to hardship waiver mainly for family based
Immediate Relative: spouse, parent or child of a USC under INA § 224
Highest priority (best status): no numerical limitation on the number of visa’s that are issued a year
Legal definition of Child: under 21 who not emancipated under INA § 101(b)(1)
Child Status Protection Act:
USC kids: Freezes the date to allow the child not to age out, as long as the petition is filed prior to the 21st birthday
If she gets married while waiting, changed her status and has not become emancipated à isn’t eligible for immediate relative visa
LPR kids: no lock- credit received for time lapsed while adjudicating (while reviewing, not while waiting) so that time is subtracted
Family Based Visas: 4 categories; all subject to annual numerical limitations
FB-1: INA § 203(a)(1): unmarried sons and daughters of USC’s
If the unmarried son or daughter is approved, and while waiting she marries, that FB-1 approved visa will descend and become an FB-3 visa and her wait will be longer
FB-2: INA § 203(a)(2):spouses and children of permanent residents (LPR)
2A: spouses and children of LPR’s
2B: unmarried sons and daughters of LPR’s
FB-3: INA § 203(a)(3): married sons and daughters of USC’s
FB-4: INA § 203(a)(4): brothers and sisters of USC’s (doesn’t matter if they’re married)
Ascending: I’m a permanent resident and I have a wife and child living abroad and I file a 2A for them, and I file b/c I’m now eligible for naturalization; what happens to the family based petition, it ascends up to immediate relative
ex 2: married son or daughter of a citizen and get divorced before priority date so get advanced from FB 3 to FB 1
Descending: If enter US as an unmarried son or daughter and then get married abroad, you have to file a petition for wife separately (not as a derivative) à FB 2A and have to wait… If got married before entered, you would have descended and would have to wait less time for wife to come with you as a derivative
Derivatives: With every married individual (FB-3&4) they can bring their spouse and their unmarried under 21 years of age of kids à they are derivatives and can come at any time (they ride on beneficiary’s visa petition)
· Accompanying: you come at the same time
· Following to join: need to come within 6 months of the spouses or parents arrival
Adjustment of Status: A non-immigrant becomes an immigrant (LPR) without leaving US
Employment Based Visas: 5 categories; priority date is when labor certification is filed
EB-1: 3 categories; EB-1 no labor certification required
Aliens of extraordinary ability: people who belong to the small percentage who have risen to the top of their field à must show international acclaim
Don’t need labor certification or a sponsor/employer; you’re so good that immigrating will not only be a benefit to you but also to the US
they want evidence that the person will continue to work in the US in his field of expertise
outstanding professors and researchers: professors and researchers who have been internationally recognized for their outstanding achievements in a specific academic field
minimum three years teaching or research; must be on a tenure track position, must show receipt of major prizes or awards
no labor certification required
multinational executives and managers: must be managing the organization or supervising
no labor certification required
EB-2: 2 categories;
Workers who are members of a profession holding advanced degrees
Members of exceptional ability in the science, arts, or business categories
à must be internationally recognized as outstanding and must have 3 years teaching or research experience and a future tenured track position
need a labor certification only in term of which category you’re going to get the immigrant visa from
these are categories where there may be USC’s or LPR’s likely to apply for the jobs
EB-3: most common, divided into three subcategories
Skilled workers: a person, who in the ordinary course of business, performs a job that normally could be performed with 2 years of education, experience, or training
determining if someone’s a skilled worker; look at the dictionary of occupational titles and describes them and gives you an SVP à if you see a code that says SVP 6 or above, it means that it’s a skilled position
Professionals: someone who in ordinary course of business performs a job that normally is performed by someone with at least a BA degree
the essence of a labor certification case is that the e
spouse would be the best evidence
· 2) hardship waiver: must be extreme in nature and it must be to the alien and or any children; must have a good faith marriage proven first
o hardship to consider is only during those two years
o burden is on the alien to show the hardship; present that the child may be deprived of a parent
· possible discrimination of going back to country (stigma of divorce, or marrying outside one’s race)
· if child has medical needs that can’t be met in home country
o not granted if it’s determined that the marriage isn’t entered to in good faith;
· 3) battered spouse waiver: most are female aliens, look for police reports, hospital records, restraining orders, testimony, temporary refuge (House of Ruth)
Furthermore, that two year period can count towards naturalization
Non Immigrant Visas: following to join and accompanying applies as well
The key with non immigrant visas is that you’re coming for a temporary purpose without the intention of abandoning your foreign residence
the law presumes that everyone that arrives in the US and stands inspection is an intended immigrant (rebuttable presumption)
at inspection, you’re subject to searches, and must overcome the presumption and show that you’re a non immigrant à non imm. visa
non immigrants may, however, aspire to become LPR’a
Non immigrants can violate their visas by doing something outside the scope and condition of their visa
ex. A student who works without permission or stops going to school for a semester, a visitor who stays beyond the time committed to him, someone who commits a crime
it’s important for non immigrants to maintain their status properly and leave when you’re supposed to, otherwise they face criminal deportation
if there’s a preconceived intent to stay and circumstantial evidence would prove that when you come here; and you’re admitted to stay as a non immigrant, you’re subject to being removed
which would jeopardize any future opportunity for permanent residence
dual intent is, however, recognized; essentially you can have mixed motives
non immigrants can change their status from one non immigrant visa to another if it’s approved by the DHS;
