Outline for Immigration Law
Professor Michael Churgin, Fall 2009
I. Immigrants
a. §5-2 Immigrants not subject to numerical limitation
i. INA §201(b) An NC may immigrate as an immideiate relative of a US citizen if the person is a child, spouse, or parent of the citizen
ii. §201(c) there is no numerical limit but these immigrants reduce the annual quota for other family-sponsored categories
iii. Children – must be unmarried and under 21 years of age; includes stepchildren and biological children
1. Can obtain LPR status immediately if born in wedlock
2. §101(b)(1)(d)If out of wedlock can qualify through natural mother or through natural father if they are legimitimated (accorded legal rights identical to a child born in wedlock) before age 18 or the father “has or had a bona fide parent-child relationship with the child”— INA treats children born out of wedlock differently depending on whether they claim benefits through their father or mother (Nguyen v. INS—affirming this on basis of plenary power in immigration)
3. Stepchildren are considered immediate relatives if they were less than 18 years of age at the time of the marriage creating the relationship, regardless of the age at which they seek to immigrate
4. In 1982 Congress adopted legislation to provide for the illegitimate children of US troops in Eurasia to immigrate to the US and be placed in the homes of American sponsors
5. Adopted children
(a) two types
(i) Adopted while under age 16 and lives outside US in legal custody of adopting parents for two or more years
1. considered adopted for immigration purposes
2. May immigrate at any age if residence requirement is satisfied and the adoption is completed before they turn sixteen
(ii) Orphans §101(b)(1)(F) – when both parents have died, abandoned the child, or if the sole or surviving parent is incapable of providing proper care and has released the child in writing
1. to qualify as immediate relative, orphan must be adopted or be coming to the US to be adopted by US citizen at least 25 yrs of age or a US citizen and their spouse
2. may immigrate only while under the age of 18—exception: 16 or 17 year-old children may qualify for orphan or adopted status if their sibling has been adopted
(b) Intercountry Adoption Act of 2000 – pertains to children adopted from countries that are parties to the Hague Convention on Intercountry Adoption—parents wishing to adopt from these countries must get approval from state dept. and central adoption authority of the child’s home country
iv. Parents
1. §101(b)(2) a parent is anyone who has any of the relationships described under def of a child in
2. The sponsoring UScit must be 21 years or older
3. An adopted child’s natural parents have no imm benefits through the adopted child
v. Spouses
1. NC must have a “valid and subsisting marriage” with that UScit
2. Validity of marriage is determined by country where marriage occurred
3. Marriages adverse to public policy, health, and morals cannot create the necessary relationship
4. Immigration Marriage Fraud Amendments (IMFA) of 1986 – §237(a)(1)(G)
(a) 2 year conditional residency for NC spouse and that spouse’s sons or daughters before being able to become an LPR
(b) Couple must file petition to remove the status within the last 90 days of the 2 year period—must provide documents for proof of bona fide marriage such as: leases or property records, joint financial accounts, birth certificates of children born to the couple, etc.
(c) Immigration officer may remove the condition on the basis or choose to interview the couple and must determine that :
(i) The marriage was not entered into “for the purpose of procuring an alien’s admission as an immigrant;”
(ii) The marriage has not been judicially dissolved other than through the death of a spouse
(iii) No fee was given, other than atty fees for the UScit’s filing of the NC’s petition
(d) Waiver – Failure to file or show at the interview results in termination of LPR status unless the NC qualifies for a waiver under §216(c); must show either:
(i) extreme hardship based on factors that arose after the NC became aconditional LPR
(ii) That the NC entered the marriage in good faith and was not at fault for failing to file a joint petition to have the conditional status removed
(iii) VAWA – if good faith marriage resulted in battery or “extreme cruelty” to the NC spouse or the couple’s child
(e) Marriage while in removal proceedings – the NC must reside outside the US for 2 years before before being granted conditional LPR status unless the NC can present clear and convincing evidence that the marriage was not entered into for immigration purposes
(f) Violation of IMFA results in permanent bar on immigration status and a $250k fine
(g) There is a regulation that says that if the citizen spouse dies while a decision to grant LPR status is pending, then the surviving spouse gets no status
(i) 3 courts read it this way and 1 reads it another way
(ii) This is still a matter that needs to be resolved
b. §5-3 Immigrants subject to numerical limitations
i. General principles
1. 3 categories: family-sponsored, employment-based, and diversity immigran
employed one year in an executive or managerial capacity at an overseas office of a company that has an affiliated office in the US
2. Second Preference – for persons holding advanced degrees, or persons of exceptional ability in the sciences, arts, or business—28.6% of the total worldwide level plus any unused from the 1st preference
(a) Advanced degree = above baccalaureate or 5 years progressive work experience unless the profession customarily requires a PhD in which case, that would be required
(b) Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the arts, sciences, or business—usually someone nationally recognized in whatever field
(c) Must have proof of a job offer
(i) can get a waiver if the employment is in the national interest—a lot of physicians get this one if they agree to work for at least 5 years and a fed or state agency attests to the public interest
(ii) for the nat’l interest waiver, the NC must work in an area of substantial intrinsic merit; must provide a benefit within the nat’l scope; and must be capable of serving the interest better than a qualified US worker
3. Third Preference – skilled workers in short supply, professionals holding baccalaureate degrees, and other workers in short supply to 28.6% of the total worldwide level plus unused from 1st or 2nd. No more than 10,000 “other workers” may immigrate each year—all of these require a baccalaureate degree except the skilled workers which requires 2 years of training
4. Fourth Preference – certain special immigrants – 7.1 % of the total worldwide level, usually made up of religious workers, former employees of the US govt and international orgs, and wards of a US court or state agency
Fifth Preference – employment creation – 7.1% of total worldwide level (10,000 at present); comprised of investors who will create at least 10 US jobs by investing in a new commercial venture; requires minimum $1 million investment, but may be reduced to $500,000 for a rural area or one of high unemployment, and CIS may raise it to $3 million at
[PMD1]See book for calculations
