KUENNING_IMMIGRATIONLAW_FALL_2012
I) Citizenship at Birth
3 ways through which you could acquire citizenship at birth: a) born in US (jus solis) b) born outside US to parents, at least one of whom is US citizen (jus sanguinis) c) derivative citizenship: citizenship by operation of law (e.g., naturalization -if you’re US citizen, you can’t be deported or denied entry; not bound by immigration laws -you’re bound by the laws at time of your birth; laws are not retroactive -goal of Congress: US citizens shouldn’t be created if they have no ties to the US -every citizen is also a national but some people are nationals w/o being citizens (eg., someone born in Samoa)
-there are some provisions requiring birth after 1952, that’s because statute was adopted in 1952
-301 (p. 462): any of the following is a US citizen and national: 301(a): a person born in the US and subject to the jurisdiction of the US 301(c): someone born out of US to two US citizen parents w/ one parent having resided in US or some of its outlying possessions at some point 301(g): 1 citizen and 1 alien; citizen must have been physically present in US at least 5 years, at least 2 of which has to be after attaining age 14
-309: when 301 would apply to children born out of wedlock (p. 466): 309(a): 301(c) and (g) apply to person born out of wedlock if: (1) blood relationship b/w person and father established by clear and convincing evidence; (2) dad had US nationality at time of birth; (3) dad, unless has deceased, has agreed to provide financial support until kid reaches age 18, and (4) while person is under 18, (A) person is legitimated under law of person’s residence or domicile, (B) dad acknowledges paternity in writing under oath, or (C) paternity is established by adjudication of competent court (applies only if 1. Dad is US citizen or national or 2. Mom is US citizen or national but doesn’t satisfy 1 year requirement of physical presence) 309(c): person born out of wedlock would be US citizen when mom is US citizen at birth, and she has been physically present in US for continuous period of one year (applies only if mom is US citizen or national + 1 year req)
Wong Kim Ark Issue: whether a child of US noncitizens born in US (parents US residents but Chinese citizens) is subject to the jurisdiction of the US Reasoning: -CL: birth w/in location is enough; 14th am. re-affirmed CL after it had been rejected in a previous case -Elk: Native American Indian born w/in US who has disassociated himself from tribe not enough to qualify him for US citizenship -Elk distinguished; Chinese citizens are different from Indian tribes, tribes are sovereign entities w/in US Dissent: loyalty follows your parents Does this reasoning apply to a situation where a child is born to two parents who are illegally in the country?
II) Naturalization and Expatriation
1) Naturalization: a process of becoming US citizen upon application process; only LPRs are eligible (318)
Naturalization for children born outside US and residing perm in US (p. 480) 320(a): child born outside US automatically becomes US citizen when: (1) at least one parent is US citizen, either by birth or naturalization; (2) child is under 18, and (3) child residing in US in legal and physical custody of the US citizen parent after a lawful admission for LPR (derivative or derived citizenship) 320(b): 320(a) applies to a child adopted by US citizen parent if child satisfies 1 of requirements under 101(b)(1) (p. 42) (child adopted under 16 and has been in legal and physical custody of adopting parent(s) for at least 2 years)
Requirements (in general): 316(a) (residence) (p. 474): (1) immediately before date of filing application for naturalization, person must have resided as LPR for 5 years continuously and during 5 years immediately before date of application must have been physically present for period totaling at least 2.5 years, and has resided in state or district where person filed application for at least 3 months; (2) must have resided continuously w/in US from date of application until becoming citizen, and (3) good moral character, attached to principles of Con, and well disposed to good order and happiness of US 319(a) (316(a)(1) doesn’t apply): any person whose spouse is US citizen can naturalize if having resided in US for 3 years and if in marital union w/ US citizen (married + residing together); physical presence for at least 1.5 years 316(b) (absences): absence of more than 6 months but less than 1 year during continuous residence period breaks continuity of such residence unless applicant can establish that he didn’t abandon residence; absence for continuous period of one year or more breaks continuity of residence automatically
-at least 18 years of age and must apply within State or district where you resided -the civics and language requirements: must read, write, speak English and must pass test about US gov’t, history (must pass it in English); 2 exceptions to English req: 1) over 50 years of age and has resided at least 20 years; 2) over 55 years of age and has resided for at least 15 years; both civics and language req can be waived on basis of mental disability -must be attached to principles of Con and well disposed to good order and happiness of US; oath of allegiance
-if you break your residency and you want to return and want to re-apply for naturalization, you can apply 4 years and 1 day after you come back to US if res req is 5 years, and 2 years and 1 day after you come back if res req is 3 years
Schneiderman Facts: gov’t says totalitarian regime is inconsistent w/ Con because it takes away private property Reasoning: there needs to be a clear and present danger because D’s freedom of speech and opinion would be violated –now: being part of Communist Party automatically revokes naturalization; Congress has explicitly rejected Schneiderman
Price v. INS Facts: D said he wasn’t part of Communist Party but refused to list all organizations that he was affiliated with Reasoning: -court relies on Kleindienst: D relied on 1st am.; visa denied because D was communist; standard from that case: if there’s facially legitimate and bona fide reason, D has to reveal info; naturalization decisions deserve as much attention as decisions about initial admission (after naturalization, people can vote)
313 (p. 471): affiliation with any groups cited is a bar to naturalization (e.g., opposition to organization gov’t; Communist Party, etc.) 101(f) (what’s good moral character) (p. 46): 101(f)(3): conviction of crime listed under 212(a)(2) during the 5 year or 3 year period makes you ineligible; 101(f)(6): false testimony; 101(f)(8): convicted aggravated felony at any point
2) Expatriation and Denaturalization
Expatriation: loss of nationality (applies to US citizens born in US); denaturalization: undoing naturalization because naturalization was illegal at time it occurred (doesn’t apply to US citizens born in US) 349 (p. 510): actions that lead to expatriation
Vance v. Terrazas Facts: D, born in US, applied for certificate for Mexican nationality Reasoning: -gov’t has to prove that D had specific intent to renounce his US citizenship (intend to commit action + intend result of action); specific intent is hard to prove -citizenship is something that belongs to you and can’t be taken away from you w/o your consent; court reads specific intent into statute because otherwise statute would be uncon -standard: preponderance of the evidence (no liberty interest at stake, civil case) -case remanded Dissent: court should just declare statute uncon w/o reading anything into it; standard should be higher
Now: statute explicitly requires specific intent but keeps preponderance of evidence History: Mackenzie, Perez: specific intent isn’t required; Afroyim: specific intent is required; Rogers v. Bellei: specific intent wasn’t necessary but case is narrow because 14th am. didn’t apply to D (not born in US or naturalized)
III) Intro to Immigrant Visas
-immigrant: admitted in US and permitted to remain indefinitely w/ unlimited purpose; can do almost anything that citizens can do, except can’t vote, not legible for certain jobs; if convicted of certain crimes, can be deported -nonimmigrant: permitted to come only for certain time frame and for limited purpose
3 major ways to become immigrant: 1) through family relationship w/ someone who’s already LPR or citizen 2) through employment 3) through diversity lottery (roughly 50,000 a year)
Basic Procedure In case of 1) and most of 2): someone has to apply on your part or sponsor you (petitioner) through a visa petition; for 2), labor certification is also required before the petition; then, it’s on beneficiary to apply for immigrant visa abroad; or to adjust status if w/in US
1) A. Immediate Relative: spouse, child, parent of US Citizen
Child: 101(b)(1) (p. 42); unmarried (e.g., widowed and divorced) and under age of
admission into US gives you ability to be a nonimmigrant/immigrant; visa is permission to apply for status (if you don’t have visa, airline can’t allow you to fly to US; if airline allows someone w/o visa and person isn’t exempt from having visa, US gov imposes strict fines on airline)
–admission either for specific time (6 months for B-2 tourist visa) or for duration of status (D/S)
–nonimm status evaporates legally when you leave US even if you have a valid visa; such status depends on physical presence w/in US while perm resident status continues to exist legally even if you’re not in US physically
-visa waiver program: certain ppl exempt from visas; Canadians are exempt in most cases; if you enter through this program, you can’t change status (3) and can only stay 90 days at most
-alien has to show that alien has residence in his/her country, which he/she doesn’t have the intention to abandon, i.e. person doesn’t have immigrant intent; immigrant intent isn’t the same thing as general hope that you might stay in US and marry someone; what disqualifies you: a specific plan to stay (ex., if you have immigrant visa petition filed)
-dual intent: 214(h) (p. 203); what immigration lawyers take dual intent to mean in reality; most visas do not permit dual intent except those under 214(h); in other words, H-1B, H-1C, L and V visas are dual intent visas
–younger people have less of an idea about what they’ll do, that has to be taken into consideration
B-1 Visas
-someone who comes in US to carry on business; application for this is much simpler and less costly than H-1B
Intl Union of Bricklayers and Allied Craftsmen v. Meese Facts: Operations Instructions allows nonimmigrants to come in and perform skilled labor; B visa workers can’t perform skilled or unskilled labor; H visas require that US workers aren’t available; Contract Labor Act intended to protect American workers from unnecessary foreign competition Reasoning: -Operations Instructions inconsistent w/ language and leg intent of Act -gives unfair adv. to companies abroad who sell to US (and does nothing to US companies selling abroad) -after some uproar from abroad (case violated some intl trade obligations), US gov’t said you can get B-1 visa to work in construction or building only if work is limited to supervising and training local US employees
VI) Employment Based Nonimmigrant Visas
H-1B Visas
-coming to US to work in a specialty occupation; in practice, what is operative is the attainment of degree not so much the highly specialized knowledge; position must meet 1 of following criteria: 1) DOL says that employee has to have bachelor’s degree under O*Net (frequently seen); 2) show that degree req is common to industry in parallel positions among similar org’s, or employer can show that job is so complex and unique that it can be performed only by individual w/ a degree; 3) employer normally requires a degree; 4): nature of duties so specialized and complex that knowledge required to perform duties is usually associated with attainment of degree
-when no degree, you can also show experience in that area equivalent to a degree (don’t worry about this)
-unlike E-B1 or E-B2, doesn’t require stellar reputation; much easier to find ppl qualifying for H-1B than E-B1/B2
-LCA (Labor Condition Application): a set of promises that employer has to make to fed gov’t: 1) promise to pay prevailing or actual wage (wage paid by same employer to other people w/ same job description in the company), whichever is higher for period covered by LCA (up to 3 years); 2) promise that employer will provide working conditions for noncitizen that won’t affect working conditions of similarly employed US workers
–LCA is filed electronically like PERM; doesn’t take too much time to certify
–H-1B dependent employers: firms of more than 50 employees for which H-1B workers constitute at least 15 percent of workforce; firm also has to show good-faith efforts to recruit US workers
–after Homeland Security approves visa petition, noncitizen has to show that she’s qualified to work in specialty occupation
-numerical cap on new H-1Bs per year: 85,000 (renewal of existing H-1B visa doesn’t count as new visa); 20,000 reserved for beneficiaries w/ Masters from US universities
–why cap is only theoretical: 1) H-1Bs can be renewed for up to 6 years (ex., you spent 3 years in US and then want to renew it for 3 more years); 2) if you’re working on a green card while also on H-1B, you can get additional time even if your visa has reached 6 years; 3) certain employers are exempt from cap (colleges, universities, affiliated non-profit entities, nonprofit or governmental research organizations)
-portability: if you have H-1B visa, you can be transferred to another employer on same visa as soon as petition is filed (usually a week for LCA to be certified); don’t have to wait for petition to be approved
-H-1Bs not clear-cut, don’t always think that because person doesn’t have degree, he doesn’t qualify for visa
O and P Visas
-O parallel to EB1A (extraordinary ability)
-P: athletes or people coming for art performances (not only performers, but also ppl who set up stage)
