Select Page

Immigration Law
Wayne State University Law School
Settlage, Rachel D.

Immigration
Settlage
2011
 
·         What standard of evidence would you use to determine what is a close relationship?
·         Immigration based on marriage
o   More than 1/3 do so in the basis of marriage to US citizen or resident
o   General rule that validity of marriage where it was celebrated
o   Marriage for immigration even if real not valid
o   Proxy marriages not valid – not in their country to have traditional marriage so father and aunt may step in as proxy to do the marriage.  Not valid unless consummated.  Marriage must not conflict with public policy and must also be lawful in the US
·         Adams v. Howerton – 1982
o   Two men married and INS refused to recognize it
o   Married in Colorado
o   Somehow got marriage license
o   INS didn’t allow Adams to bring spouse back
o   Failed to establish that a bonnafide marriage existed between two faggots
o   At that time homosexuality was grounds of exclusion
o   Look at ordinary common meaning of marriage – between man and a woman
·         Feb 3 2011 AG Holder announced that federal government wouldn’t defend constitutionality of Doma
o   Saying strict scrutiny needs to be applied and it cant be applied
o   DOJ says not going to defend it but going to enforce it
o   For immigration not going to recognize same sex marriages  but slight changes happening where some places they aren’t making them leave right away
·         Sham marriages
·         If not a sham marriage doesn't matter if they were separated
·         At what point do you look to see if sham or fraud – at the time of the marriage
·         Test – if at the time that they were married they intended to establish a life together
·         If never lived together even at time of marriage can be used to show that you have a fraudulent marriage
·         If legally separated under formal written agreement then the same as divorce
·         Non citizens shouldn’t be held to a higher standard of marriage because marriages fail all the time
·         Lawyer cannot knowingly submit a sham marriage – short of them telling you then you don’t know –
·         Immigration fraud act
o   Strengthen restrictions on future benefits if found to engage in marriage fraud
o   Possible prison 5 years and 250 g’s for marriage fraud – US citizen and non-national
 
 
Siblings
·         Adopted children not added until 1957
·         Young v. Reno
o   Adopted in Hong Kong but aunt was a US citizen
o   Petitions to bring 4 biological siblings to US
o   INS approved the visas but had to wait a number of years
o   When went to consulate they revoked them saying relationship with biological siblings was severed when adopted.
o   Trial court denies visa petitions
o   Used Chevron inquiry to review 2 part inquiry
§  Did congress speak directly to the issue at question
·         If they have spoken, then its done
§  If they haven’t and its ambiguous
·         Is agency’s answer on based on principle construction of the status – court cannot impose its own construction
o   Relationship between natural parent and child is severed when that child is adopted – act doesn't refer to that child’s siblings
o   Young is arguing that its biology
o   INS defined sibling by relationship to common parent
o   Court looked at 1967 Fugi case which district director held that normal definition controls, which is person of same parents
o   Kong in 1979 overturned that and said sibling relationship created by adoption doesn't survive termination of an adoption – so if one child adopted then sibling relationship severed
§  Established 2 part test
§  Establish children of a common parent
§  And is parent still the parent of both
o   Kong held in matter of Lee
§  Dependent on parent child relationship
§  If adoption severed parent child relationship then don’t share common parent with biological children anymore
o   Chevron test
o   Congress did not speak to the matter
o   Young argued that brother and sister means biology and cant say they meant to terminate the sibling relationship
o   Ct. said what is clear is that congress didn’t clearly define brother or sister so couldn’t say what is right so go to second part of test – congress though clearly intended natural parents to be blocked
o   INS definition is admissible – agreed with Kong and Lee test
·         US v Mede
o   Slightly limited chevron
o   Only qualifies for Chevron test if congress delegated authority to that agency
·         Brand X
o   Went back and reaffirmed they Chevron status
o   Often a problem with circuits not being consistent of rules
o   BIA decisions can be appealed to circuit it responds in
o   Sometimes BIA result will be same as 9th but not as 4th
o   If 9th overturns BIA then any immigration court has to follow the court application
o   A court had ruled on FCC issue but circuit court overruled that interpretation
o   FCC’s interpretation was upheld on the basis that courts cannot rule on an issue in general until an agency has ruled on that issue, otherwise get mixed results.  If a courts came first then agency doesn't get deference but if agency comes first then gets deference and can go up to chevron test
o   Court cannot interpret statute before agency, the agency doesn't get deference and under Chevron, agency should get deference
 
Employment Based Immigration
·         EB5 – Investor visa
·         Until 1990 act no provisions favoring investors but talk to provide preference that fill jobs, why not those that create jobs
·         Chair of commission dissented to this idea because rich should be able to buy their way into the US
·         Requirements
o   Create no fewer than 10 jobs for US workers not counting investor and his family
o   Minimum investment is 1 million or in low income areas 500 g’s
o   Have to show have invested or actively invested over that 2 year initial period
o   10,000 spaces available but only a few 100 issued per year
o   Problem had many fraudulent schemes to get in without money up front
o   Because of new tight requirements people didn’t want to come
o   Rebounded in 2007
o   USCIS got more straight lined efficient process with regional centers
§  Already been approved centers and can just invest in the center and don’t have to create your own business
o   Up in the thousands now for EB5 Visas
o   If investing in regional center can count indirect job creations
§  If open race track and someone opens gas station then can count those jobs
·         J Key Golf Resort in Vermont
o   Frequent

§  Now if your non-citizen is not available have to go through whole process again
·         Defining the Job
·         Rug importer Case
o   Wrote job qualifications for a buyer that were very specific
o   Found qualifications were unduly restrictive and denied labor certification
·         Computer consulting case
o   Hired specialists
o   Need bs in engineering and ms in computer science
o   Regional officer denied application on unduly restrictive grounds
o   Ct looks at definition
o   Unless job requirements arise out of business necessity has to be normally required for that job, defined in DOT, and do not include language requirements other than English
o   First definitions is that business necessity that absence of which would undermine the business – too extreme of a standard
o   2nd definition is anything that enhances the functionality of the business – said its too broad
o   Preference should be given to American workers but job requirements must bear reasonable relationship to the occupation and essential to performing the job duties of the employer
o   Ct. said neither party has attempted to define the job duties and requirements
o   On remand, regional officer says 2 degree requirement was too restrictive
§  Looked at other labor certification requests by same company and were different
·         SVP – Specific Vocational Preference
o   Amount of time for specific employee to get the skills and teqniches to perform in that specific job
o   Easiest job is SVP1 – just display worker can do it once
o   SVP9 – needs 10 years experience
·         New PERM rules to foreign language requirements
o   Must be justified by business necessity
o   Business necessity allows for foreign language requirement if nature of occupation, interpreter or translator, or need to communicate with employers customers that cannot communicate in English
o   If multiple occupations are combined into 1 job and that work is customarily performed in that intended employment and business necessity
·         Prevailing wage requirement
o   Must pay a certified non-citizen the prevailing wage
o   What other in that area/field are making
·         What happens if have company that cant pay prevailing wage?
o   In response to Hathaway DOL issued rules that applied to certain employers, universities, non profits, research centers
§  Compare to other colleges, non profits and not the private corps
·         Creative lawyers try to avoid getting labor certifications
o   Write job description so fits into EB1 category
o   Get them to come as a temporary worker
o   Get national interest waiver