Immigration Law Outline

 
Meili_Immigration_Spring_2014
 
Nonimmigrant Visas – § 101(a)(15)
 
Generally
1.      Presumed Immigrant Intent – § 214(b) – every alien, other than H(i), L or V shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at time of application for visa, and the immigration officers, at time of application for admission, that he is entitled to a nonimmigrant status under § 101(a)(15). 
2.      Burden of Proof on Alien – § 291 – burden of proof shall be upon such person to establish that he or she is eligible to receive such visa or document, or is not inadmissible under any provision of the Act. 
(1)      burden to show the time, place, and manner of entry
(2)      Requirement of having a residence in another state
(3)      if not sustained, presumed to be in violation of law. 
3.      Consular officers may find a nonimmigrant applicant inadmissible for a number of reasons including:
(1)      applicant poses a security or health risk to U.S. citizens
(2)      applicant does not intend to stay in the U.S. temporarily (immigrant Intent)
(3)      applicant’s past actions disqualify him or her from a nonimmigrant category.
 
A.    Diplomatic Personnel [INA § 101(a)(15)(A)] A-1 – An ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government recognized by the U.S., and the members of the alien’s immediate family.
A-2 – other foreign government employees and officials and their family members
A–1; A–2 retain status as long as their official position is recognized by the Secretary of State
Family members of a person with A–1 or A–2 status may engage in employment in the United States if their country of nationality grants reciprocal privileges to dependents of U.S. officials stationed in that country. 8 C.F.R. § 214.2(a)
A-3 – personal employees, attendants & servants of persons in A-1 & A-2
retain status for 3-years and may be extended in increments of not more than 2 years 8 C.F.R. § 214(2)(a)
B.     Temporary Visitors [INA § 101(a)(15)(B)] 1.   An alien having a residence in a foreign country which he has no intention of abandoning and who is visiting the U.S. temporarily for business or temporarily for pleasure
·         B-1 business travelers
·         B-2 visitors for pleasure
2.   Limits:
a)   Admitted for 6 months and cannot extend in 6-month increments for up to one year.  8 C.F.R. § 214.2(b)
3.   Who can use B visas?
a)   B-2
(1)   Tourists
(2)   Prospective F-1 students coming to select a school (B-2)
(a)    must declare intention when apply or will not be permitted to change to F-1 status later 67 Fed. Reg. 18065
(3)   Visitors entering the U.S. for medical treatment (B-2)
b)   B-1 – those “conducting business”
(1)   attending conventions, engaging in consultations, and carrying out other commercial activities 22 CFR § 41.31
(2)   Matter of Hira – Test for B-1
(a)    must maintain a residence in a foreign country
(b)   must accrue any profits outside the U.S., AND
(c)    each visit must be temporary, even if the business activity is ongoing.
(3)   Elderly parents or cohabitating partners who come to the U.S. to live w/ a nonimmigrant admitted under another status category.  (B-1)
(4)   Can supervise but not perform construction work (B-1)
(5)   install or repair equipment purchased overseas, if contract requires seller to provide such service (B-1)
4.   Who is excluded from using B visa?
Conduct business permitted; Engaging in employment not permitted; difficult to distinguish
“Business” includes attending conventions, engaging in consultations, and carrying out other commercial activities
those coming to perform skilled or unskilled labor
can’t perform construction work – can supervise
Foreign workers may be granted B–1 status to install or repair equipment purchased overseas, but only if the purchase contract specifically requires the seller to provide this service.
5.   Procedure
present a valid passport and B-1 or B-2 visa – § 212(a)(7)(B)
Must prove: 21 CFR § 41.31
that they will leave the U.S. at the end of their intended stay
that they have permission to enter another foreign country at that time, AND
that they have sufficient funds for the purpose of their visit
6.   Who is exempt from visa requirements?
Canadian nationals do not need passport or visa.
Citizens of Mexico can obtain a combination Border Crossing Card/B-1/B-2 visa
valid for 10-years – no passport necessary
visit up to 72 hours, w/in 25 miles of U.S. Mexico Border
for longer travel – can pay small fee for I-94
Visa Waiver Program – allows citizens of designated countries to enter U.S. for business or pleasure w/o a visa.  § 217
(1)   Limitations:
(a)    may remain up to 90 days
(b)   prohibited from adjusting their status to that of immigrant (except to immediate relatives) or to that of any other nonimmigrant classification. § 245(c) 248(4).
(c)    waive right to review or appeal an immigration officer’s admissibility determination, or to contest, action for removal (unless asylum) § 217
(2)   Qualifications: (reviewed every 2 years)
(a)    country must offer reciprocal privileges to U.S. citizens
(b)   must have low rate of nonimmigrant visa refusals
(c)    must not represent a security risk, AND
(d)   must begin issuing machine-readable passports by 2003
(3)   Countries included:
(a)    Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay.
C.    Visitors in Transit [§ 101(a)(15)(C)] Class
C-1 An alien in “immediate and continuous transit” through the U.S.
can remain up to 29 days § 101(a)(15)(c), 8 CFR § 214.2(c)
C-2 right of transit to the United Nations
C-3 foreign officials in transit through the U.S.
Limitations:
cannot extent their stay or change status to another nonimmigrant classification  8 CFR § 214.1(c), 248.2(b)
no employ