The AABANY Immigration & Nationality Law Committee presents:  

U.S. IMMIGRATION LAW 101:WHAT EVERY PRACTITIONER SHOULD KNOW

ABOUT U.S. VISAS FOR THEIRINDIVIDUAL AND CORPORATE CLIENTS

Presenters:

Rio M. Guerrero, The Guerrero Law FirmTsui H. Yee, Yee Durkin & Puri LLP

Where to Find the Law The USCIS Website: www.USCIS.govUSCIS Laws, Regulations and Guides

Immigration and Nationality Act (INA)

From USCIS.gov

Code of Federal Regulations (CFR)From: USCIS.gov

Practitioner’s Toolbox

• INA and CFR• USCIS and other US Government Websites (USDOL,

USDOS, EOIR, etc.)• Kurzban’s Immigration Law Sourcebook• American Immigration Lawyers Association (AILA)

NIV vs. IV

What are Non-immigrant Visas?

What are Immigrant Visas / “Green Cards”?

NIV: Overview

Alphabet Soup of NIVs – “A” through “V”

There are no numerical limitations on the number of non-immigrant visas (NIVs) that may be issued or the number of people with NIVs that may enter the U.S. except as to H-1B, H-1C, H-2B, Q-2, S, T and U visas.   A foreign national may only hold one NIV at a time. Letter, Weinig, Deputy Asst. Comm., Adjudications, CO 214h-C (Nov. 28, 1989), reprinted in 67 No. 2 Interpreter Releases 39, 53 (Jan. 8, 1990).

NIV: Overview (cont’d)

Generally, NIVs need a passport valid for 6 months beyond the time of anticipated stay and a valid nonimmigrant visa or border crossing card. INA §212(a)(7)(B)(i), 8 U.S.C. §1182(a)(7)(B)(i), (ii); 22 C.F.R. §41.104.

An applicant for admission may also have his or her visa in an invalid passport if it is a multiple entry indefinite visa and s/he is in possession of a valid passport. 22 C.F.R. Sec. 41.112(b)(3)

 Visa Waiver Program (VWP). INA §217, 8 U.S.C. §1187; 8 C.F.R. §217.1-217.6; 22

C.F.R. §41.2.

B-1 Visitor for Business

VISAS FOR TEMPORARY VISITORS (B-1/B-2)

INA §101(A)(15)(B); 8 U.S.C. §1101(A)(15)(B); 22 C.F.R. §41.31; 9 FAM 41.31

 

The B classification is NOT meant to be a catch-all classification available to all who wish to come to the United States temporarily for whatever purpose.

B-1 Business Visitor (cont’d)

CriteriaA person entering as a temporary visitor must have: 1. A residence in a foreign country. According to the

Foreign Affairs Manual (9 FAM 41.31 N2), the residence must be “actual dwelling place in fact.” INA §101(a)(33), 8 U.S.C. §1101(a)(33).

2. No intention of abandoning foreign residence.3. Visiting temporarily for business. 

Visa for Students and Trainees

VISAS FOR STUDENTS AND TRAINEES

 

Academic Students—F Visa

Criteria—Statutes/Regulations—INA §101(a)(15)(F), 8 U.S.C. §1101(a)(15)(F); 8 C.F.R. §214.2(f), 9 FAM 41.61; 67 Fed. Reg. 76256 (Dec. 11, 2002).

The applicant must meet the following criteria for F-1 Status:

1. Applicant has foreign residence with no intention of abandoning it.

2. Applicant is a bona fide student qualified to pursue a full course of study.

3. Applicant seeks to enter the U.S. as a student “temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning or other recognized place of study in the United States.”

4. Applicant will study only at an institution particularly designated by him and approved by the AG in compliance with the SEVIS program. 8 C.F.R. §214.2(f)(1)(i)(A).

F Visa (cont’d)

Employment

There is no employment 1st academic year (i.e., 9 months) except for on-campus work, which can begin as soon as the student is admitted in F-1 status. 8 C.F.R. §214.2(f)(9)(ii).

BUT … Practical Training is available:

For a full-time student that has at least completed one academic year, which is normally 8-9 consecutive months (unless a graduate student in a special program);

It is related to a course of study;

It is employment for the purpose of practical training; and

It is not for English language training.

 

F Visa (cont’d)

There are two types of practical training:

(1) Curricular Practical Training, 8 C.F.R. §214.2(f)(10)(i):

This type of training is defined to be alternate work/study, internship, cooperative education or any other type of required internship or practicum. If student obtained one year or more of full time curriculum practical training then post-completion training is not available. Curricular practical training may be granted on a “part-time” basis (no more than 20 hours/week) or a “full-time” basis.

 

(2) Optional Practical Training, 8 C.F.R. §214.2(f)(10)(ii):

Optional practical training may be exercised in one of four circumstances:

a) During student’s annual vacation or otherwise when school not in session;

b) While school is in session as long as it does not exceed 20 hours/week;

c) After completion of all course requirements (excluding thesis or equivalent) for bachelor’s, master’s or doctoral degree program; and

d) After completion of the course of study.

 

H-3 Trainees

• Temporary worker coming to US for training or instruction other than to receive graduate medical training. Not intended for productive employment is US.

• Criteria set forth in 8 CFR Sec. 214.2 (h)(7)(ii)(A):

1. proposed training not available in home country;

2. no placement where US workers are regularly employed;

3. no productive employment, unless it is incidental to training; and

4. training will benefit the beneficiary in pursuing a career outside the US.

• In limited circumstances, after training is complete, an H-3 can change status to another NIV – such as an H-1B visa.

 

 

VISAS FOR BUSINESS PERSONS:H, O, L, and E Visas

H-1B Visas INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b).

 

The H-1B classification allows professionals to work in the U.S., on a temporary basis, in a “specialty occupation.” It is suitable and ideal for engineers, professors, researchers, computer programmers and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis.

Specialty Occupation is defined under INA §214(i)(1), 8 U.S.C. §1184(i)(1), 8 C.F.R. §214.2(h)(4)(ii), as requiring:

1. Theoretical and practical application of a body of highly specialized knowledge; and

2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.

 

H-1B Visa (cont’d)

Experience Alone May Be Sufficient. 8 C.F.R. §214.2(h)(4)(iii)(C)(4)  

Portability – A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is “nonfrivolous”; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG; and (4) subsequent to such lawful admission the H- 1B beneficiary has not been employed without authorization before the filing of such petition. INA §§214(n)(1) and (n)(2)(A).

A brief word on TN Visas …

Professionals—TNs. TN status is for Canadian and Mexican persons engaged in activities at a professional level. This category is designated “TN,” is similar to H-1B except there is no statutory limitation on stay such as exists for Hs and Ls, and it generally covers a broader range of job categories. However, TNs unlike H-1Bs are subject to INA §214(b) and must prove their intent not to immigrate. 9 FAM 41.59 N10. “Activities at a Professional Level” under NAFTA is defined as requiring “at least a baccalaureate degree or appropriate credentials demonstrating status as a professional.” 8 C.F.R. §214.6. The regulations specify various categories of professions that are covered.

“O” Visa: Extraordinary Ability

O-1—8 C.F.R. §214.2(o)(1)(i):

  

O-1A. Person who “has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.” 8 C.F.R. §214.2(o)(1)(ii)(A)(1).

 

O-1B. If in motion picture or TV production, the person must have “a demonstrated record of extraordinary achievement.” Person needs to demonstrate that his/her achievements have been recognized in the field “through extensive documentation.” 8 C.F.R. §214.2(o)(1)(ii)(A)(2).

 

“O” Visas (cont’d)

O-2—8 C.F.R. §214.2(o)(1)(ii)(B):

The O-2 is only for person accompanying and assisting an O-1 artist or athlete in the artistic or athletic performance for a specific event or events so long as:

(1) S/he is an integral part of such actual performance.

(2) S/he has critical skills and experience with the O-1 that are not of a general nature and which cannot be performed by other individuals.

O-3—8 C.F.R. §214.2(o)(6)(iv):

Includes spouse and children accompanying and following to join as O-3s.

“L” Visa: Transfer Employees

L Visas. INA §101(a)(15)(L), 8 U.S.C. §1101(a)(l5)(L), 8 C.F.R. §214.2(l); 22 C.F.R. §41.54.

Foreign national applying for an L visa is seeking to enter the U.S. temporarily to continue to work for same employer or its affiliate or subsidiary. The employee is not required to perform full-time services in the U.S. but must dedicate a significant portion of his or her time on a regular and systematic basis. O.I. §214.2(l)(5)(ii)(B). The L-1 recipient must continue to work in the capacity that is managerial, executive or involves specialized knowledge. I.A.90 §206(a). Dual intent is applicable for L-1. Thus, a petition for an immigrant visa may be pending while person maintains L- 1 status.

 

“L” Visas (cont’d)

The foreign national must be employed continuously abroad for 1 of the past 3 years by parent, branch, affiliate or subsidiary of U.S. company preceding his application for admission. The Immigration Act of 1990 eliminated the “immediately preceding” requirement, so that a person may now be transferred into the U.S. if s/he worked for the entity abroad continuously for one year at any time within the preceding three years. In the case of a person being transferred where the importing employer has filed a blanket L, the transferee need only work for the company abroad for 6 months. INA §214(c)(2)(A).

“E” Visa: Treaty Trader/Investor

E Visas.

INA §101(a)(15)(E), 8 U.S.C. §1101(a)(l5)(E); 8 C.F.R. §214.2(e).

  

A person is entering U.S. (for indefinite time) based upon treaty of friendship, commerce and navigation or Bilateral Investment Treaty or other arrangements (e.g.; NAFTA-Canada and Mexico) between U.S. and country of which s/he is a national.

 

“E” Visas (cont’d)A person is entering:

(1) Solely to carry on substantial trade which is international in scope principally between U.S. and the foreign state of which s/he is a national (E-1 treaty trader), or

(2) Solely to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing a substantial amount of capital in a bona fide enterprise (E-2 treaty investor). Some countries may have only E-1 treaties or E-2 treaties. Some have both.

(3) As a key employee from treaty country of either E-1 or E-2, including executives and supervisors or persons whose services are “essential to the efficient operation of the enterprise.” 8 C.F.R. §214.2(e)(3), or

(4) As a principal employer who is: (a) a person with nationality of treaty country whether in or outside U.S.; or (b) an enterprise or organization that is 50% or more owned by treaty nationals, or

(5) A dependent of one of the above referenced persons.

E-1: Considerations

E-1 – INA §101(a)(15)(E)(i), 8 U.S.C. §1101(a)(15)(E)(i).

 

Substantial trade:

Trade under 8 C.F.R. §214.2(e)(9), 22 C.F.R. §41.51(h) and (i), 9 FAM 41.51 N4, is defined as “the existing international exchange of items of trade for consideration between the U.S. and the treaty country.” Domestic trade is not counted in determining trade and therefore not counted in determining what is substantial trade. Trade includes export or import. For example, if equipment purchase involves transfer of component parts for assembly in U.S. it is trade. The Immigration Act of 1990 defined trade to include trade in services and technology.

E-2: Considerations

E-2—INA §101(a)(15)(E)(ii), 8 U.S.C. §1101(a)(15)(E)(ii); 22 C.F.R. §41.51.

 

The nationality of Investment Enterprise is the same as E-l—50% sufficient (joint venture). 22 C.F.R. §41.51(g). Investor must have invested or is actively in the process of investing. 22 C.F.R. §41.51(b)(1). The funds must be in employer’s possession/control. Funds must be “at risk.” (e.g., must be unsecured loan or collateral for loan must be from personal assets). The capital must be subjected to partial or total loss if investment fortunes reverse. It must be “the investor’s unsecured personal business capital or capital secured by personal assets.” 8 C.F.R. §214.2(e)(12). The statute does not require that the source of the funds be outside the U.S.

U.S. Dept. of State Monthly Visa Bulletinhttp://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Example of DOS Monthly Visa Bulletin (November 2009)

Example of DOS Monthly Visa Bulletin (November 2009)

Example of DOS Monthly Visa Bulletin (November 2009)

Dual Intent Doctrine

Even though a nonimmigrant must demonstrate genuinely that his/her intent is to remain in the U.S. temporarily, s/he may have both a short term intent to leave and a long term intent to remain permanently. This is known as the doctrine of dual intent. See Matter of H-R-, 7 I&N Dec. 651, 654 (R.C. 1958). Recognized only for E-1, E-2, H-1 and L NIV holders.

Employment-Based Immigrant Visas

The employment-based (EB) immigrant visa categories (IV) are organized into preferences.

First Preference (EB-1) INA 203(b)(1)- Priority WorkersThis category is divided into 3 subcategories(a) individuals with extraordinary ability,(b) outstanding professors and researchers, or(c) multinational executives and managers

 Second Preference (EB-2) INA 203(b)(2)- Is divided into 2

subcategories:(a) members of the profession holding advanced degrees, or(b) individuals of exceptional ability

EB IV Preference Categories

Third Preference (EB-3) INA 203(b)(3)- professionals skilled workers, and other workers

Fourth Preference (EB-4) INA 203(b)(4) - This category is for “special immigrant” visas. The categories encompass a variety of special immigrants including certain religious workers, Amerasian children, certain employees of U.S. foreign service posts aboard, and certain foreign language broadcasters working for Radio Free Europe or Radio Free Asia to name a few.

 

Fifth Preference (EB-5) INA 203(b)(5) - Investor category

An individual who invests a minimum for one million dollars in a new or existing business; or a minimum of $500,000 if the investment is in a targeted employment area, that is, an area that has experienced unemployment of at least 150 percent of the national average or invests in a rural area with a population of less than 20,000.

PERM Labor Certification (Labor Cert)

INA Sec. 212(a)(5)(A) & (p); 20 CFR Part 656

Most foreign nationals who would like their employers to sponsor them for a green card in the United States must first get a labor certification from the Department of Labor (DOL). A labor certification is often a prerequisite for obtaining employment-based permanent residence.

A labor certification is the determination by the Department of Labor (DOL) that there are no U.S. workers able, willing, qualified, and available for the position for which a labor certification is being sought, and that the employment of the foreign national will not adversely impact the wages and working conditions of U.S. workers.

For the ETA-9089 application to be approved, the employer is required to undergo a process of recruitment to prove to the DOL that there are no U.S. workers available.

Exceptions to Labor Cert Prerequisite

Generally, there are 2 exceptions to the labor certification requirement:

(1) Types of employment listed under the Department of Labor’s Schedule “A” found in 20 CFR 656.10. Specifically, registered nurses and physical therapists.

(2) If the foreign national will serve the national interest, labor certifications may be waived. INA 203 (B)(2)(B)(i).

National Interest Waivers

National Interest Exemption from Job Offer and Labor Certification:

The national interest waiver is a waiver of the job offer requirement for individual who wish to immigrate to the U.S. in the second preference category who are members of the profession holding advanced degrees or individual of exceptional ability in the arts, sciences, or business.

Neither the INA nor the regulations define “national interest”, but a waiver request requires a showing “significantly above that for prospective national benefit.”

The number of national interest waiver cases approved have been greatly limited following the August 7, 1998 precedent decision by the Administrative Appeals Office (AAO) in Matter of New York State Department of Transportation (NYSDOT), Int. Dec. 3363 (Comm’r 1998).

Ethical Issues Commonly Faced by Business Immigration Law Attorneys

ABA Model Rules of Professional Conduct –

Client-Lawyer Relationship

Rule 1.7 Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) The representation of one client will be directly adverse to another client; or (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

EthicsRule 1.7 Conflict of Interest: Current Clients (continued)

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) The representation is not prohibited by law;

(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) Each affected client gives informed consent, confirmed in writing.

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

EthicsRule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

• (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Ethics

NY Rules of Professional Conduct (Effective April 1, 2009)http://www.nysba.org/Content/NavigationMenu/ForAttorneys/

ProfessionalStandardsforAttorneys/NYRulesofProfessionalConduct4109.pdf

Essentially, the NYS Rules adopted the ABA Guidelines.

Hot Ethics Topics in PERM

Recruitment: Limit on Attorney involvement. 20 CFR 656.10(b)(2)Prohibits attorney from interviewing, considering and/or determining whether there are qualified U.S workers for the job offered to the foreign national.

Thus, to what extent may an employer seeks its attorneys’ advice/ assistance to review the qualifications of a U.S worker responding to PERM recruitment?

Fragomen v.Chao. (D.D.C Civ. No. 08-1387(RMU)) Stipulation and Order,AILA InfoNet Doc. No. 08110330, Nov 3, 2008 clarifies that attorneys mayprovide advice re all “legal questions,” including the provision of “advice concerning requirements relating to whether an applicant is a qualified, willing, able and available U.S worker.” (p.6) However , the Fragomen Stipulation does reaffirm the DOL position that the employer must review applications first and must make the ultimate eligibility assessment.

Hot Ethics Topics in PERMABA Model Rules of Professional Conduct – Maintaining The Integrity Of The Profession

Rule 8.4 MisconductIt is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Hot Ethics Topics in PERM

Payment of Legal Fees and Recruitment costs: 20 CFR 656.11 (b)

Effective July 16, 2007, regulatory prohibition on employers “seeking or receiving payment of any kind for any activity related to or obtaining permanent labor certificate.”

Invalidation of prior reimbursement agreements.

Applies to Schedule A, Groups I and II (ETA-9089 component )

DOL FAQs also confirms that ban does not extend to USCIS processing (I-140, and I-485).

Hot Ethics Topics in PERM

Minimum Requirements 20 CFR 656 17 (i) (1) and (2).

Must use employer’s actual minimum requirements. Employer is certifying that it has not hired workers with less training or experience in the job opportunity. Are others’ applications pending for similar positions, or have they been recently certified?

Fraud, or willful misrepresentative 20 CFR 656. 31. Potential application to attorneys.

Our program will resume promptly in

fifteen minutes.

U.S. IMMIGRATION LAW 101:

• Family-Based Applications for Lawful Permanent Residence

Immigrant vs. Nonimmigrant Visas

• All visas are divided into 2 categories: immigrant and non-immigrant visas. Common non-immigrant visas are student visas and tourist visas. These visas do not lead to lawful permanent immigrant status.

Family-Based Non-Immigrant Visas

• Fiancé (e) Visas – K-1 (INA § 101(a)(15)(K)(i), 8 U.S.C. § 1101(a)(15)(K)(i):– For foreign nationals who wish to enter US to marry a USC

– Must marry within 90 days

– Cannot change status to another nonimmigrant visa category, or adjust status on any other grounds than marriage to the petitioner

– Minor children get K-2 status

• Requirements: – Petitioner files I-129F petition with USCIS

– K-1 fiancé (e) issued at US embassy abroad

– Must have personally met at least once in the 2 yrs before petition filed

– Marriage must take place within 3 mos of arrival; otherwise beneficiary must depart from U.S.

K-1 Visas cont’d.

• If marriage is completed within 90 days of entry, beneficiary can apply for adjustment of status to lawful permanent residence; no I-130 petition for alien relative required

• K-1 visa holder is given “conditional residence” for period of 2 years, after which s/he must remove conditions on residence by filing I-751 petition

K-3 /K-4 Visas

• K-3/K-4 Visas - (INA § 101(a)(15)(K)(ii), 8 U.S.C. § 1101(a)(15)(K)(ii): :– For spouses & minor children of USCs

– Foreign national & USC spouse already married abroad

– Allows FN to enter & remain in US to await processing of application for permanent residence

– Unmarried children get K-4 status

• Procedure:– USC must first file an I-130 relative petition

– USC files I-129F petition with evidence that I-130 filed

Note – if I-130 petition is approved & received at consular post prior to approval of the K-3 petition, in general the consulate will not issue the K-3 visa but simply go forward and adjudicate the immigrant visa

Lawful Permanent Residency

• Definition of “Lawful Permanent Resident” – INA § 101(a)(20), 8 U.S.C. § 1101(a)(20)(or immigrant) – “Status of being lawfully accorded the privilege of permanently residing in the U.S. as an immigrant.”

• i.e. “immigrant” or “green card holder”

• Not a US citizen or a nonimmigrant visa holder such as a visitor, student, H-1B employee, etc.

• Other immigration statuses distinguished: refugees / asylees; TPS (Temporary Protected Status)

• LPRs do not need employment authorization to work & eligible for SSN’s without any restriction on employment

• LPRs may travel in & out of US (subject to physical presence requirements)

• LPRs status may be lost, deemed abandoned, or rescinded/revoked

• Finally, LPRs can be removable (deportable)

Family-based Immigration

Family Relationships:

• Immediate Relatives (IR) of U.S. citizens (USC);

• Other close family members of USCs; and

• Spouses and unmarried sons and daughters of U.S. Lawful Permanent Residents (LPR)

Immediate Relatives vs. Preference Categories

• IR – no limit, visas immediately available

• Preference Categories – annual numerical limit, visas not immediately available

• What is a “visa number”?

• U.S. law limits the number of immigrant visa numbers that are available every year

• In addition, U.S. law also limits the number of immigrant visas available by country. This means you may have to wait longer if you come from a country with a high demand for U.S. immigrant visas.

Immediate Relatives

• Defined as spouses, parents & unmarried children under 21 of USC. INA §§ 101(b)(1) & 201(b)(2)(A)(i), 8 U.S.C.§§ 1101(b)(1) & 1151(b)(2)(A)(i)

• If applying for a parent, the USC must be a son or daughter (i.e. at least 21)

• On 10/28/2009, President Obama signed a bill that became Public Law #111-83 which eradicated the “Widow Penalty”, allowing widow(er)s of USCs & their children to self-petition for permanent residence. Previously, immigration law required that a widow(er) had to be married for at least 2 years to his/her USC spouse in order to obtain permanent residence. A widow(er) who was married less than 2 yrs at the time of the USC spoyse’s death may file a self petition within 2 years of the law’s passage (10/28/2011). After this 2 year period, a petition must be filed within 2 years of the USC’s death. There is no requirement that an I-130 immigrant petition had to have been filed by the USC spouse.

Other Survivors

• The new law also added a new section, §204(1) to the INA, which allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal applicant in cases where the beneficiary or derivative beneficiary resided in the US at the time of death & continues to reside in the US.

• Covers the following survivors:– IR’s– Family Preference categories – Employment-based dependents (derivative beneficiaries)– Refugee/asylee petition beneficiaries– Nonimmigrants in “T” (victims of trafficking) or “U” (victims of crime) status

Family Preference Categories

• First Preference – unmarried adult (over the age of 21) sons and daughters of USC

• Second Preference – divided into two sub-categories:

• 2A – spouses and unmarried children of LPR

• 2B – unmarried sons and daughters of LPR

• Third Preference – married sons and daughters of USC

• Fourth Preference – brothers and sisters of USC

NoticeNo aunts, uncles, cousins or grandparents are

included as IR or under any preference category

NoticeNo aunts, uncles, cousins or grandparents are

included as IR or under any preference category

Other Issues

• Foreign State Chargeability:– Against which country’s quota is an applicant subject to?

– Typically it is the country of birth

– An important issue if particular country is oversubscribed

– Certain exceptions apply

• “Priority Date”– determines order of visa availability; priority date set by date I-130

petition is filed

Derivative Beneficiaries

• Derivative Beneficiaries– Get the same priority date as principal beneficiary: 22 C.F.R. §§

42.53(a)

– A derivative beneficiary is the spouse or child of the principal beneficiary who “rides” on the principal beneficiary’s application for permanent residence.

– There are no derivative beneficiaries in IR cases!

– Example: the child of a foreign national who marries a USC cannot be included in his or her parent’s application and the petitioner must file a separate petition for the child

Visa Bulletin

• What is the Visa Bulletin? – Lists the availability of immigrant numbers

– Is updated every month

– Where to find the Visa Bulletin:

– http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html

Family-Based Immigration

Family All China India Mexico Philippines

1 15OCT03 15OCT03 15OCT03

08JUL92 22OCT93

2A 15AUG05 15AUG05 15AUG05

15JUN03 15AUG05

2B 01OCT01 01OCT01 01OCT01

01JUN92 15MAY98

3 01MAR01 01MAR01 01MAR01

01MAY92 22OCT91

4 15JUN99 15JUN99 15JUN99 08NOV95 15JAN87

Basic Application Process

• 2 Steps

1st – Immigrant Visa (IV) Petition (Form I-130)

2nd – Application for LPR Status

• These petitions and applications may either be filed at a US Consulate abroad or in the US. Factors such as location of beneficiary, costs, and processing times determine filing strategy.

I-130 Petition

• Burden of proof is on the petitioner. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966)

• What does an I-130 approval means? That the beneficiary is eligible for LPR status. Does not grant lawful permanent residence. Beneficiary must still obtain either adjustment of status or immigrant visa approval.

• There are two mechanisms for applying for residency: – Adjustment of status, and – Consular processing. They are very different procedures

Consular Processing:

– The process of applying for and receiving an immigrant visa from a US consular post overseas.

– After the immigrant visa is issued, the individual travels to the United States and is admitted as a lawful permanent resident.

“Inspected and admitted”

• A person is inspected and admitted when he presents himself for inspection and makes no knowing false claim to citizenship.  Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) – [Mexican citizen not questioned at border while riding in a car that was stopped was inspected and admitted even though she had no lawful basis to enter.] 

• What if an applicant’s admission into the US involved fraud or misrepresentation?

Adjustment of Status

– Immigration & Nationality Act, § 245. [8 U.S.C. § 1255]

– Process of obtaining lawful permanent residence in the US without having to depart from the US and applying for an IV at a consular post abroad

• Requirements:

– “inspected and admitted” or “paroled” into US

– FN must make an application for adjustment (Form I-485)

– must be lawfully here, except for IRs, battered spouses & children, SIJS, & a few other exceptions

– FN is eligible to receive an IV and is “admissible” to the US for permanent residence, and

– An IV is immediately available to him/her at the time application is filed.

Fraudulent Admissions

• In Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), the Ninth Circuit held that a non-citizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA § 245(a) because he or she has not been "admitted."

• Subsequently, the Ninth Circuit vacated its decision. However, the issues involved in this case still have not been resolved definitively by the BIA.  The BIA remanded Orozco to the Immigration Court on May 12, 2009 but did not discuss the merits of Matter of Areguillin except to say that the parties agree about the definition of “admitted” and there is no dispute about this issue

What is “paroled”?

• INA §212(d)(5)(A) - the Atty General may...in his discretion parole into the US temporarily under conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien ...but such parole should not be regarded as an admission into the US

• A person paroled under INA §212(d)(5)(A) can adjust status

Admissibility / Inadmissibility

• Before being admitted to the US, each intending immigrant must be “admissible.” Admissible is not defined. However, inadmissible is defined at great length.

Inadmissibility

• Common Grounds of Inadmissibility:– Health-related grounds, e.g. communicable diseases, certain

physical/mental disorders and behavior, some substance and alcohol abuse

• ***HIV no longer a ground of inadmissibility. On 10/30/09, President Obama announced the elimination of the HIV entry ban. The Administration was to issue a final rule on 11/2/09 repealing the ban. The final rule is effective on 1/4/10

– Crime. Certain criminal convictions will make someone inadmissible to the US. There are waivers for many but not for all.

– Security and related– Public charge

Additional Grounds of Inadmissibility

• Grounds of Inadmissibility:– Illegal entrants – Immigration violations– False claim to U.S. citizenship– Smuggling – “Unlawful Presence”

Family-Based Immigration

• Adjustment of Status: – Immigration & Nationality Act, § 245. [8 U.S.C. § 1255] – process of obtaining lawful permanent residence in the US without having to

depart from the US and applying for an IV at a consular post abroad• Requirements:

– “inspected and admitted” or “paroled” into US– FN must make an application for adjustment (Form I-485)– must be lawfully here, except for IRs, battered spouses & children, SIJS, & a

few other exceptions– FN is eligible to receive an IV and is “admissible” to the US for permanent

residence, and – An IV is immediately available to him/her at the time application is filed.

What is “unlawful presence”?

• INA § 212(a)(9)(B), 8. U.S.C. §1182(a)(9)(B), 22 C.F.R. §40.92

• “Unlawful Presence” - being present in the US after the expiration of the period of stay authorized by the AG or is present in the US without being admitted or paroled. INA § 212(a)(9)(B)(ii)(I), 8. U.S.C. §1182(a)(9)(B)(ii).

• Beginning 4/1/97, a person who is ULP for period of more than 180 days but less than 1 yr who voluntarily departs from US is barred from readmission for 3 years from date of departure. INA § 212(a)(9)(B)(i)(I), 8. U.S.C. §1182(a)(9)(B)(i)(I).

• Beginning 4/1/97, a person who is ULP for period of 1 yr or more & again seeks admission is barred for 10 years from date of departure. INA § 212(a)(9)(B)(i)(II), 8. U.S.C. §1182(a)(9)(B)(i)(II).

Unlawful Presence cont’d

Waiver of unlawful presence ground of inadmissibility: The only waiver available for the Three and Ten-Year Bars requires proof of extreme hardship to a U.S. citizen or LPR spouse or parent; waivers are not available based on extreme hardship to a U.S. citizen or LPR child.

Ethical Issues That May Arise in Family Based Cases

• Dual Representation in the Family Based Context:

– Attorney represents both spouses in applications for permanent residence based on marriage

– Duty to keep all information confidential. However, in dual representation, “no secrets” between the 2 clients

– Rule 1.7: Conflict of Interest:

• (a) a lawyer shall not represent a client if a reasonable lawyer would conclude that either

– (1) the representation will involve the lawyer in representing differing interests

• Examples of potential conflicts of interest:

– Marriage no longer valid

– Battered spouse (VAWA) petitions

Ethical Issues, cont’d• Confidentiality of Information:

– Rule 1.6(a) of the NY Rules of Professional Conduct: a lawyer shall not knowingly reveal confidential information…to the disadvantage of a client…unless:

– (1) the client gives informed consent as defined in Rule 1.0(j):• “Informed consent “ denotes the agreement by a person to a

proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained…the material risks of proposed course of conduct and reasonably available alternatives

Ethical issues cont’d

• Rule 1.8: Current Clients - Specific Conflict of Interest Rules

– (b) a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent

• Withdrawal: when it is necessary?

– Rule 3.3: A lawyer cannot knowingly perpetrate fraud upon the tribunal

– A lawyer “who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Rule 3.3(b)

– What if the attorney is not sure whether clients’ marriage is bona fide?

The AABANY Immigration & Nationality Law Committee presents:  

U.S. IMMIGRATION LAW 101:WHAT EVERY PRACTITIONER SHOULD KNOW

ABOUT U.S. VISAS FOR THEIRINDIVIDUAL AND CORPORATE CLIENTS

Presenters:

Rio M. Guerrero, The Guerrero Law FirmTsui H. Yee, Yee Durkin & Puri LLP