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Immigration Law
University of Oklahoma College of Law
Johnson, Kit


Basics of Immigration Law

· Immigration & Nationality Act (INA): Passed in 1952. Central source of immigration law.

· Customs and border patrol always wear blue. (CBP)

· Border patrol itself(green), they rove along the border.

· Immigrant: people who are coming to the country with the expectation that they will stay forever and become US citizens.

· LPR-Lawful Permanent Resident (green cards)

-Expectation that they will become a US citizen.

· Non-immigrant: coming for a short period of time to do something specific (like NBA player). No pathway to citizenship.

· USC = US Citizen

· Non citizen: not a citizen.

· Alien: non-citizen

· Illegal & Undocumented: There is no crime of being present in the country without authorization. There is no presence crime.

o The crime is crossing the border. Use the term undocumented.

· If you were not born in the US as a US citizen, then you must become naturalized.

*The Plenary Power Doctrine*

· Judicially created doctrine out of Chae Chin Ping.

· Courts defer to the substantive and sometimes the procedural immigration decisions of Congress and the Executive Branch b/c they possess “plenary power” over immigration

· Congress can regulate immigration on any basis it wants.

-On race, gender ,religion, height, weight, etc.

-The courts will not question anything that Congress passes in terms of immigration law of who will be admitted.

Chae Chin Ping: Mr. Ping was a Chinese laborer who left the US and while he was on his return voyage, Congress passed a law prohibiting Chinese laborers from returning. Ct said that Congress has plenary power and the judiciary will stay out of it. They said it doesn’t violate the constitution.

Chevron Deference – Chevron USA, Inc. v. NLRB, 467 U.S. 837 (1984)

· Administrative Law doctrine

· Courts defer to work of administrative agencies.

· Won’t defer to agency decision contrary to Congressional intent

Immigrants Exempt from General Quotas (Numerically Unrestricted)

· 1) Immediate Relatives of USCs-largest $

· Spouses,

· parents (if USC is over 2!),

· children(unmarried and under 21)

· 2) LPR(Lawful Permanent Resident) who are returning from temporary trips abroad

· 3) Children born to LPRs temporarily abroad

· 4) Persons who receive certain permanent forms of discretionary relief from removal.

· 5) Refugees

· 6) Parolees: not admission and temporary.

· 7) Special groups

Immigrants Subject to General Quotas (Quota Immigrants)

· 1) Family Sponsored immigrants

· Specified relationships that are not close enough to qualify the immigrants as immediate relatives but are still close enough to qualify as immediate relatives.

o 1st Preference: the unmarried sons and daughters of USCs.

o 2a Preference: the spouses and the unmarried sons and daughters of LPRs.

o 2b: Preference: the married sons and daughters of USCs

o 4th Preference: the brothers and sisters of over-age 21 USCs.

· 480,000 slots

o MINUS immediate relatives admitted prior year

o PLUS employment visas available, not used prior year

o Or 226,000, whichever is greater

· 2) Employment-Based Immigrants

· 140,000 slots

o PLUS any family-sponsored visas available not used prior year.

· Those with certain occupational skills, certain investors, and miscellaneous others.

o 1st Preference: Priority Workers (Extraordinary Ability)

§ 1) Persons with extraordinary ability in the sciences, arts, education, business, or athletics

§ 2) Outstanding professors and researchers

§ 3) Multinational executives and managers

o 2nd Preference: Members of the professions holdings advanced degrees and aliens of exceptional ability

o 3rd Preference: Skilled workers, professions (w/o advanced degrees) and others who can show their labor is needed in the US.

o 4th Preference: Special immigrants (certain religious workers and certain long-term foreign employees of the US govt.

o 5th Preference Employment Creation

§ Entrepreneurs who invest at least $1,000,000 each in enterprises that employ at least 10 Americans.

o Spouse and children who is accompanying or following to join is within the three categories (family, employment, diversity)

· 3) Diversity Immigrants

· Those admitted because they were born in countries or regions from which the United States has received little immigration in recent years.

· Win a lottery based on coming from far-flung regions of the world.

Family Sponsored Immigration

1) Unmarried sons and daughters of USCs. (Not quota exempt because they are older than 21)

2) Spouses and unmarried sons and daughters of LPRs

· 2A: Spouses & children (under 21 who are exempt) -> INA 202(a)4(A)

· 2B: Over 21 unmarried 21.

· LPRs: These are people we expect to becomes citizens. So why

al intrinsic merit”;

2) The person’s employment will benefit the nation, not just the local area; and

3) the particular applicant “will serve the national interest to a substantially greater degree than would be available US worker having the same minimum qualifications.

2) Obtain a “labor certification” from the Dept. of Labor

-Usually requires showing that able, willing, and qualified American workers are not available and that the applicant’s employment will not adversely affect the wages and working conditions of similarly employed United States workers.

· 3rd Preference – Others – Skilled Labor – BA holders – 10,000 visas

1) Immigrants capable of performing certain “Skilled labor” for which qualified US workers are not available

2) immigrants who have baccalaureate degrees and are members of the professions; and

3) “Other workers” who are capable of performing unskilled labor for which qualified US workers are not available.

· 4th Preference: Special Immigrants

-Religious workers

-Long term foreign employees of US companies

· 5th Preference – Employment Creation

-Entrepreneurs investing 1 million dollars in US companies and employ 10 USCs.

Labor Certification

· 2ns & 3rd preferable.

· Precertification: if on DOL’s schedule, skip, and g to USCIS.

o Schedule A: nurses, physical therapists- running short on.

· Everyone else has a long process.

o 1) Start with State Workforce Agency fro prevailing wage.

o 2) Recruitment steps- Then you say there are not enough US workers that are able, willing, available, or qualified enough to take the job. there isn’t ANY US worker capable of taking this job.

o 3) File attestations with DOL’s Employment and Training Administration via PERM. You have to show documentation where you are posting the job and showing there is no one qualified or available.

o 4) Get decision from certifying officer from DOL.

o 5) Go to USCIS and file the I-140.

· Employer will be the one doing the filing.

· Minimally qualified worker should get the job first.