Immigration Law Outline

sbr@robylaw.com

Week One: Aleinkoff: INA '' 101 (a), 274 C Penalties for Document Fraud, and Homeland
Security Act of 2002 Also INTERNET: Title 8 Code of Federal Regulations (CFR) Section
270. 

New Changes in Immigration Law after September 11, 2001:

1. USA Patriot Act: October 26, 2001
2. Homeland Security Act: November 25, 2002
3. Real ID Act: May 2005

Homeland Security Act:

Homeland Security Act Department of Homeland Security created (http://www.dhs.gov/)
 INS abolished and moved to DHS
 Immigration functions split into 3 entities:
1) U.S. Citizenship and Immigration Services (USCIS) http://uscis.gov/
2) Customs and Border Protection (CBP) http://www.cbp.gov/
3) Immigration and Customs Enforcement (ICE) http://www.ice.gov/
 Attorney General still governs Executive Office of Immigration Review (EOIR) and Board of
Immigration Appeals

http://www.authorstream.com/Presentation/Rina-57518-immigration-basics-Brief-History-
Law-Early-Laws-Nationality-Act-1952-bas-Education-ppt-powerpoint/

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8 CFR Sections 270
270.1 Definition
For the purpose of this part—
Document recorded instrument
Entity means any legal entity, including, example corporation

§ 270.2   Enforcement procedures.
(a) Procedures for the filing of complaints.
a. Any person w. knowledge of a violation or potential violation may submit a signed,
written complaint to the Service office having jurisdiction
b. must contain sufficient information to identify both the complainant and violator,
c. detailed factual allegations relating including the date, time and place violation and
the act
d. delivered either by mail or by personal appearance at immigration

(b) Investigation. It shall only investigate 3rd party complaint that have a substantial probability
of validity. Or conduct investigations on their own initiative. Upon investigation it may a
Notice of Intent to Fine.
(c) Issuance of a subpoena. may issue subpoenas to examine any relevant evidence of person or
entity investigated.
(d) Notice of Intent to Fine.
i. by personal service pursuant.
ii. effective upon receipt, (certificate of service or the certified mail return receipt.)
iii. may be issued by an officer or by an INS director

(e) Contents of the Notice of Intent to Fine.

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 (1) Notice Shall include
i. basis for the charge
ii. alleged violation
iii. monetary amount
(2) shall provide:
(i) has the right to representation at no expense to the government;
(ii) That any statement given may be used against the person or entity;
(iii) right to request a hearing before an administrative law judge pursuant to
request must be filed with INS within 60 days from the service of the Notice
(iv) if request for a hearing is not timely filed, it will issue a final order from
which there is no appeal.

(f) Request for hearing before an administrative law judge

 If in in a foreign language must include a translated version.
 deemed filed when it is either received or posted within 60 days, the day of service of the
Notice not computed towards the 60 days.
 not required to, respond to each allegation listed in the Notice of Intent to Fine.
 Waiver: may waive the 60-day period and ask that the INS issue a final order w. no appeal.
If not a U.S citizen will be advised that a waiver will result in the issuance of a final order
and that the respondent will be excludable and/or deportable from the U.S

(g) Failure to file a request for hearing. the INS shall issue a final order from which there shall
be no appeal.
(h) Issuance of the final order. by an officer, by an INS port director designated by his or her
district director, or by the Director of the INS National Fines Office.
(i) Service of the final order—
1) personal service or proof of mailing
2) in a foreign country.
(i) the law of the foreign country for service in that country OR

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 (ii) As directed by the foreign authority in response to a letter rogatory, reasonably
calculated to give actual notice; OR
(iii) When applicable, pursuant to §103.5a(a)(2) of this chapter.
 Service is effective upon receipt of the final order.

(j) Declination to file charges for document fraud committed by refugees at the time of entry.
The Service shall not issue a Notice of Intent to Fine for acts of document fraud committed by
an alien:
 pursuant to direct departure from a country in which the alien has a well-founded fear of
persecution
 or from which there is a significant danger that the alien would be returned to such a
country
o provided that the alien has presented himself or herself without delay to an INS
officer
o and shown good cause for his or her illegal entry or presence.
 Other acts of document fraud committed by such an alien may result in the issuance of a
Notice of Intent to Fine and the imposition of civil money penalties.

§  270.3      Penalties.

(a) Criminal penalties. Nothing in section 274C of the Act shall be construed to diminish or
qualify any of the penalties available for activities prohibited by this section but
proscribed as well in title 18, United States Code. ????

(b) Civil penalties.

o may face civil penalties
o by the Service or by an administrative law judge
o may charge multiple violations in a single and
o may impose separate penalties for each
o a single proceeding or determination.
 A finding of more than one violation in the course of a single proceeding will
be counted as a single offense. ( not subsequent)
 respondent found have violated this section is subject to an order:
(i) To cease and desist from such behavior; and
(ii) To pay a civil penalty as follows:

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 (A) First offense. Not less than $250-275 and not exceeding $2,000-2200
(depending if before or after Sept 1999) for each fraudulent document or
activity
(B) Subsequent offenses. Not less than $2,000-2200 and not more than $5,000-
5500 for the same. (Much Higher , Not Less Than Is 8 Times More, Not Less
Than Is Almost 2.5 Times More, Than If First Offense)
(2) Each subdivision shall be considered a separate person or entity.

CLASS NOTES WEEK ONE;

 Definition of terrorism. ?? alien (101)(a)(3)
 He doesn’t do cases cz. he think litigations are failure mode, lawyers solve the problem
before that reach a litigation stage….
Federal statute 8 U.S.C & immigration nat act of 1952 (INA)
Federal statute & agency implemented regulations

Statute by the congress published rules / Regulations CFR (implementing regulation)

Immigration history: 5 periods statutorily…no immigration law until the 1920’s cz. Race was
more relevant….we only wanted white race…
212(a) list a class of people get a visa, & can be used at the border as a secondary measure..BUT
aliens unlawfully present 212 (a) 9 (b)
Mathew Bender, bender Online for final paper…

Kindings (book??)
DOJ, DHS, DOS, DOL, CBP, USCIS, ICE, COAST GUARD all different departments we have to
control immigration….

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Expetriative Oath: you expatriate yourself from allegiance to another country..

Anchor baby??? Born in the us under the 14th A…( 14th A. doesn’t affect children of the
diplomats born in the U.S.)

-WEEK 1 HISTORY
-WEEK 2- 212
Exam includes 8.u.s.c8.cfrlit
Inspection & admission are terms of art-
Counselor officers 1st line of defense by denying someone entry to the U.s:
Immigrant visa permanent.
Non immigrant Visa temporary.
221(g): Non-issuance of visa or other documents/ Counselor Officers: Outisied the U.S,
have a lot of power; we call it counselor absolutism, their role os protecting the U.S, they
speak for the king historically ( U.S president in nowadays)

287-powers of immigration officers:

Powers of federal officers:
o Can interrogate anyone who appear to be an alien- no 5th A. requirement.
o Can stop & put people in custody, burden of proof on the person.
o any vehicle 287(a)(3) stop any vehicle w/o warrant.
o 287(c) search w/o warrant:
o At port of entry-out of warrant also means w/o council as well.

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 o 291- burden of proof is on person seeking admission or entry- have to establishes it to
the satisfaction-Inadmissible ( 212/237) entitled (not just that you can show what you
are, but what you actually are…) this relates to the officer right to say NO, I f
o Burden of proof when applying for a visa/ the U.S : “clear & beyond doubt”- guilty until
proven innocent metaphorically.

 Boy George Story: meets a guy online, invites him over, partied with him & Paid him ,
agreed to meet again. 2nd time he brings over, they do drugs, beat him (sex game),
imprisoned him & say derogatory remarks. Convicted 15 months, & will be going to
rehab.
o 212(a)(2) ; 212(1)(A)(iv) “ be a drug abuser or addict.
o 212(a)(2)(i)(1); a crime involving moral turpitude (CIMT) doesn’t need to have
be indicted in a crime, w/o conviction, can base it on info he tells, police records,
officers can do investigation.
 Violation of foreign nation drug control substance, even at a
misdemeanor level ( there are exception) *site from PP”
o Prostitution/ procured a prostitute.
 Amy Weinhouse: denied Visa to perform at the Grammys, cz. 19 min video where she
was of her doing heroin.
o 212(a)(2)
o 212(1)(A)(iv) “ be a drug abuser or addict
 La plaza: is protesting abuse by extremist, but accused of being a terrorist. Denied visa
for fellowship at Harvard.
o According to the x-president who is a friends of the U.S he endorsed a terrorist
group.
o
 17 old boy denied visa cz. called Obama a prick
o
Externship:
o DOS (department of state, especially if you speak a foreign office)
o CBP
o USCIS ( you need to do an info pass appointment, talk ao elie perry he will give you
info) (call & Cancel- mine is with an immigration officer)
o STATE DEPARTMENT

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 o USCIS
o IMMIGRATION COURT (covers all sourt of removal).
Court
Court Address Immigration Judges
Administrator
P.V. McNamara Federal
Building
477 Michigan
Avenue, Suite 440
Detroit, Michigan
Hacker, Elizabeth A.
48226
Detroit Nettles, Marsha K. Roberts, Sandra L.
(313) 226-2603
Newberry, Robert D.
begin_of_the_skype
_highlighting              
(313) 226-
2603      end_of_the
_skype_highlighting

o
o CITY OF DETROIT PROSECUTORS (badly need inerns)

AILA membership: $50 for students, get all this internet knowledge,

 Multiple conviction-
 Conviction: 101(a)(48):
o Found guilty
o Enough facts to finding guilt
o Ordered some form of punishments
o Imprisonment
 Expungment exists, will show up

CITATION FOR EXAM example: -INA $ (a)(1)(D)(1)

Inadmissibility - Criminal Grounds
The need to prevent criminals from entering the US has been one of the longest
standing parts of US immigration law.  In some form or another, criminal
convictions have been used to deny entry to the US since the creation of the
country. 
 
What is considered a criminal ground for inadmissibility?
There are six basic criminal grounds for inadmissibility:
 
·         Crimes involving moral turpitude,

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 ·         Violations of controlled substance laws,
·         Conviction of more than one offense,
·         Drug trafficking,
·         Prostitution and commercialized vice, and
·         Commission of a serious crime in the US for which the immigrant
asserted immunity from prosecution.

What is moral turpitude?

Moral turpitude is one of the most amorphous concepts in immigration law.  There
is no definition of moral turpitude, although many courts have attempted to
construe one, using phrases such as an act of baseness, depravity or vileness. 
While there is no set definition, it is clear that the moral turpitude involved
must be part of the essence of the offense. 
A) NO CONVICTION A crime involving moral turpitude need not have
resulted in a conviction for it to render a person inadmissible, and admitting
to an act that has the elements of a crime involving moral turpitude is
sufficient to bar entry. 
B) CONVICTION: Where an actual conviction occurred, the only issue is
whether the offense was a crime involving moral turpitude. 
C) WHERE THERE IS ONLY AN ADMISSION, a number of other steps are
required. 
a. First, it must be clear that the act admitted to could have been
criminally prosecuted in the place where it occurred. 
b. Second, the immigrant must fully understand the elements of the
crime to which they have admitted. 
c. Third, while the immigrant needs to say that he/she is guilty of an
offense, he/she does need to admit to all of the essential elements of
the offense. 
d. Fourth, the admission must be totally voluntary.
i. CIMT 237(2)(A)(i)-
ii. Pay attention if the person left the U.S after ….whatever it is,
bcz. Admission is triggered every time a person leave the
country
iii. Shouldn’t leave the country until the issue is solve, even if it
was only an arrest w/o conviction.
iv. 212 & 237 symbiotic relationship..
v. Look at state law to see if punishable w. more than one year
imprisonment.

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 vi.

1) What type of controlled substances violations will make me inadmissible?

Beginning in 1952, convictions for violating laws relating to controlled
substances became a ground of inadmissibility.  Convictions of conspiracy and
attempt will also render a person inadmissible. 

  2) What type of multiple criminal convictions will make me inadmissible?

Multiple criminal convictions will make a person inadmissible, regardless of the
seriousness of the offense, whether the multiple convictions were the result
of the same general enterprise.  However, the person must have been
sentenced to at least five years in prison.  Offenses that are considered “purely
political” are not included.
 
3) Do I have to be convicted of drug trafficking to be considered
inadmissible?
Drug traffickers are inadmissible, even if there is no conviction, so long as
the consular or immigration officer “knows or has reason to believe” that
the immigrant has been involved in trafficking. 
 
4) Do I have to be convicted of prostitution to be considered inadmissible?
A person coming to the US to engage in prostitution, or who has engaged in
prostitution within ten years of their application for entry, is inadmissible, as are
those who have made financial profit from prostitution.   No criminal conviction is
required, and the bar applies even to nationals of countries where prostitution is
legal.  Those who have been forced into prostitution are not inadmissible.

5) What is considered to be a serious criminal offense?

Those who committed a serious criminal offense in the US, claimed immunity
from prosecution and then left the US are inadmissible.  A serious criminal
offense is any crime of violence, and driving while under the influence of
drugs or alcohol or reckless driving if the crime resulted in the injury of
another person. 

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 BIA finds 212(c) relief not available to LPR
removable due to an aggravated felony
conviction, where there is no "statutory
counterpart" in the grounds of inadmissibility
IMMIGRANTS' RIGHTS UPDATE, Vol. 19, Issue 3, June 30, 2005

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      The Board of Immigration Appeals has concluded that a
lawful permanent resident who was convicted for sexual abuse of
a minor in 1992 is not eligible for a waiver under former section
212(c) of the Immigration and Nationality Act.  The ruling serves
to bar immigration judges from granting discretionary relief to
many LPRs who would otherwise qualify for consideration
because their convictions occurred prior to 1996.

     Former section 212(c) is a discretionary waiver that is

available to lawful permanent residents with at least seven years
of "unrelinquished domicile" in the United States.  The statute
was narrowed (AEDPA) and then repealed by (IIRIRA). 

212(c) relief as a "waiver of excludability" -- in other words, a

form of relief available in exclusion proceedings rather than
deportation proceedings.  This is the principle that the waiver is
available in deportation proceedings only in cases where a
respondent is deportable on a ground of deportability for which
there is a comparable ground of excludability. 

an alien charged and found deportable as an aggravated felon

is not eligible for section 212(c) relief "if there is no comparable
ground of inadmissibility for the specific category of aggravated
felony charged." As examples of such categories, the
commentator mentioned the category of "Murder, Rape, or
Sexual Abuse of a Minor" and that of "Crime of Violence." 

    acknowledging that "there may be considerable overlap

between offenses categorized as sexual abuse of a minor and
those considered crimes of moral turpitude," the BIA
concluded that the moral turpitude ground of inadmissibility
could not be considered a "statutory counterpart" to the
ground of removal for sexual abuse of a minor. 

    .

WEEK 2
1) RIGHT TO EFFECTIVE COUNSELING-Matter of Compean I- no right to
gov. paid council in a civil proceeding removal is a civil proceeding no
right to council, although in a DUI you do get a right to council, but for a LPR

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 we don’t give them that ( this is a republic view-issued during Bush) NO
RIGHTGT TO “EFFECTIVE COUNCIL” as high as the burden is to prove
ineffective counseling, yet still this wasn’t given to LPR.
2) Matter of Campean II ( I think changed I under Obama)..(See Padilla v.
Kentucky)
3) ELEGEBILITY FOR DISCRETIANRY RELIEF FROM DEPORTATON-
Matter of Silva Trevino- 62 yrs. Old LPR convicted of having sex was
convicted for sexual abuse of a minor in 1992 is
I) Is this a “crime involving moral turpitude” that renders respondent
inadmissible and therefore ineligible for discretionary relief from
deportation, under the Immigration and Nationality Act. 212(a)(2)
II) If so, D. not eligible for a waiver & immigration judges are
barred from granting discretionary relief to many LPRs who would
otherwise qualify for consideration.
III) To determine whether a conviction is for a crime involving moral
turpitude, immigration can look everywhere; statues, record of
conviction, judgment of conviction, jury instructions, a signed guilty
plea, and the plea transcript & any additional evidence.
IV) It is proper to make a categorical finding that a defendant's conduct
involves moral turpitude when that conduct results in conviction on the
charge of intentional sexual contact with a person the defendant knew
or should have known was a child.
V) To qualify as a crime involving moral turpitude for purposes of the
Immigration and Nationality Act, a crime must involve both
reprehensible conduct and some degree of scienter, whether
specific intent, deliberateness, willfulness, or recklessness.
4) In Re Rosas Ramirez-An alien whose conviction for an aggravated felony
was subsequent to her adjustment of status to that of a LPR is deportable
under section 237(a)(2)(A)(iii) as an alien who was convicted of an
aggravated felony “after admission
5) Matter of Small: misdemeanor offense of sexual abuse of a minor is
"aggravated felony" for section 101(a)(48)(A)- [101(a)(48)(A) does
encompass misdemeanors]
6) On trafficking requirement: “ordinarily ‘trafficking’ means some sort of
commercial dealing”, “unlawful trading or dealing”
i. Drug trafficking crimes means under 101(a)(43)(b) requires
some sort of trafficking not mere possesion Gerbier c.
Holmes d. was convicted for possession of marijuana, on

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 probation for 3 yrs, then convicted for possession of coccain-
the statute calls the conviction “offense of "trafficking in
cocaine” . immigration want to remove under section 101(a)(43)
(b) of the immigration and nationality act defines as an
aggravated felony "illicit trafficking in a controlled substance
including a drug trafficking crime. h) circuit finds delaware
felony drug possession not an aggravated felony. Reasoning:
felony drug offense does not constitute a "drug trafficking"
aggravated felony because it neither contains a trafficking
element nor would be punishable as a felony were the offense to
be prosecuted federally.
ii. Matter of Davis- respondent's state conviction for conspiracy
to distribute a controlled substance IS aggravated felony
within the meaning of section 101(a)(43) Reasoning) In cases
based on an attempt or conspiracy conviction, where the
underlying felony offense involves unlawful trading or dealing in
controlled substances, i.e. “illicit trafficking” as commonly
defined, no further comparison pursuant to Barrett is required
for a finding that the conviction is for an aggravated felony.
Where the underlying offense is not a felony and/or is not
clearly “illicit trafficking” as commonly defined, the
conviction may nonetheless still be “illicit trafficking” within
the meaning of section 101(a)(43)
iii. Under the Davis/Barrett approach, a state felony drug
offense constitutes an aggravated felony if it either contains a
"trafficking element" (i.e., involves the unlawful trading or
dealing of a controlled substance) or if it is analogous to a
felony offense punishable under the federal statute.

WEEK 3
WEEK 3-NOTES-
DEPORTABLE ALINES-WAIVERS ETC.
When they say you were in-admissible on entry burden on you, although you
have been in the U.S for 20 years. We will treat you as if you never came here.
Exception: rule doesn’t apply

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 212(h) waiver- (this statute impel the IPL to get a spouse so that they can qualify
for a waive ( U have U.S spouse, child. Or ----)

237-
If you bulshited your way & got in, you are inadmissible at entry-doesn’t matter
that you are already in.
If you violate your status-even for one day- you are deportable. E.g: you
violate you student/ employment/ tourism etc.
Failed to maintain residence 237(a)(1)(d)- e.g; LPR through marriage/ 2
years / didn’t maintain Deportable.
SMUGGLING-5 years (there are exception)
Form he gave us-not in the laws, this is the equivalent of rules that leaves it to
the discretion officers w/in how long to..??

101 (A)(43) AGGREVATED FELONY

List (a)(43)(a)-(u) AG felonies
Any alien who is convicted of an aggravated felony at any time after admission is
deportable (237(a)(2)(a)(iii)

AGGREVATED FELON & INA 238(C)

 Presumed deportable
 Expedited removal

WEEK 3-HOMEWORK
1) Ineffective Counseling-Padilla v. Kentucky-Case overturned Campean,
gave LPR right to Effective Counseling-VERY IMPORTANT CASE-
F) Defendant convicted on drug-related charges filed motion for post-
Illegal/unlawful
resident is only a conviction relief, alleging that his attorney was ineffective in misadvising
civil infraction, him about potential for deportation as consequence of his guilty plea. The
doesn’t mean he Hardin Circuit Court denied motion. Defendant appealed. The Court of
is a criminal. Appeals reversed and remanded. Commonwealth of Kentucky appealed. The
212- Burden of proof
is on the Alien to Kentucky Supreme Court reversed. Certiorari was granted.
prove HOLDING:
admissibility. (1) counsel engaged in deficient performance by failing to advise
240-removal defendant that his plea of guilty made him subject to automatic
proceeding-
even a technical
deportation, abrogating AND
mistake we can
send you back
home.
For exam: put the
Rule, then the 15 | P a g e
waiver to it.
 (2) defendant's claim was subject to Strickland ineffective assistance
test, not only to extent that he alleged affirmative misadvise, but
also to extent that he alleged omissions by counsel, abrogating
 Strickland Test: whether counsel's representation fell
below an objective standard of reasonableness, and then
asks whether there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.

2) PARTICULARLY SERIOS CRIMES-241(b)(3)(B)(ii)-In Re N-A-M.D- A

deportable serious crime doesn’t have to be an aggravated felony &
doesn’t have to a min 5 yrs. Conviction-
a. FACTS: The respondent, a native and citizen of El Salvador, was
convicted on June 7, 2005, of felony menacing in violation of Colorado
Statute & was sentenced to 4 years' deferred judgment. The
respondent was performing oral sex on a 20-year-old man against his
will when the victim awoke. Thereafter, an argument took place, which
involved two other persons who appeared to be the parents of the
victim. The respondent allegedly grabbed two knives and threatened
to kill the victim and one of the other members of the household.
a. The Immigration Judge found that the respondent had
experienced past persecution but was ineligible for withholding
of removal as a result of the conviction for a particularly
serious crime.
b. HOLDING:
(1) In order to be considered a particularly serious crime
under section 241(b)(3)(B)(ii) of the Immigration and
Nationality Act, , an offense need not be an aggravated
felony under section 101(a)(43) of the Act
(2) Once the elements of an offense are found to
potentially bring it within the ambit of a particularly
serious crime, all reliable information may be considered
in determining whether the offense constitutes a
particularly serious crime, including but not limited to the
record of conviction and sentencing information.
c. Evidence that may be used in PARTICULARY SERIOUS CRIME
Determination: we examine the nature of the conviction, the type of
sentence imposed, and the circumstances and underlying facts of the

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 conviction- mainly elements of the crime. (nature of the crime Not
relevant: likelihood of future similar conduct, sentence,
a. If the elements of the offense do not potentially bring the
crime into a category of particularly serious crimes, the
individual facts and circumstances of the offense are of no
consequence, and the alien would not be barred from a grant of
withholding of removal.
b. If the elements of the offense are found to potentially bring
the offense within the ambit of a particularly serious crime, all
reliable information may be considered in making a particularly
serious crime determination, including the conviction records
and sentencing information, as well as other information outside
the confines of a record of conviction. (examining in detail the
actual circumstances of the crime, well beyond what was
disclosed by the elements of the crime, including information
from other participants in the crime).

3) Where an act is only statutorily prohibited, rather than inherently

wrong, the act generally will not involve moral turpitude, so as to render
an alien who commits the crime removable (Categorical Approach)
Quintero-Salazar v. Keisler;
a. Alien who had been convicted of various California offenses petitioned
for review of order of Board of Immigration Appeals (BIA) ordering
his removal.
b. Issue: whether STATUTORY RAPE is a crime of moral Turpitude
(212(a)(2)(A)(i)(I)
c. Holdings:
(1) violation of California statute criminalizing engaging in intercourse
with a minor who is under 16 years of age when the perpetrator is 21
years of age or older is not categorically crime involving moral
turpitude, and
(2) Fact of conviction alone was insufficient to establish, under
modified categorical approach, that violation of such statute was
crime involving moral turpitude.
d. Under the categorical approach; when the crt. is comparing the
statutes it compares only st. not the D. action.
e. If the crime of conviction does not categorically qualify as a
predicate offense under a federal statute, it still may qualify as crime

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 of moral turpitude, so as to render an alien who commits the crime
removable, under a modified categorical analysis. Immigration and
Nationality Act, § 212(a)(2)(A)(i)(I),

WEEK 4-ASYLUM
REFUGEE; ASYLUM;
 HAGUE CONVENTION AGAINST TORTURE (CAT);
 WITHOLDING OF REMOVAL AND RELATED RELIEF
 ASYLEE AND ADJUSTMENT OF STATUS
1) Ayala v. U.S AG: Facts: Ayala, who is homosexual and opposes the Chavez
government, alleged that he had suffered past persecution on account of his sexual
orientation and political opinion. In 2004 Venezuelan police officers assaulted him;
hit him, robbed him, handcuffed, detained placed a hood over his head, forced him
to perform oral sex, they threatened to arrest incarcerate, or plant drugs in his
home all bcz. he is gay.
Procedure: Because the Board and the immigration judge failed to give reasoned
consideration to Ayala's application, we grant Ayala's petition for review.
Rules: To establish asylum based on past persecution, the applicant must prove (1)
that he was persecuted, and (2) that the persecution was on account of a protected
ground.

 Ayala advances three arguments in his petition for review. First, he challenges the
determination of the Board that he failed to establish past persecution on account of
a protected ground. Second, he challenges the determination of the Board that he
failed to establish a well-founded fear of future persecution on account of a protected
ground. Third, he challenges the determination of the Board that he failed to
establish an entitlement to withholding of removal. Because we conclude that the
Board and the immigration judge failed to render a reasoned decision about Ayala's
claim of past persecution, we vacate the decision of the Board and remand for
further proceedings.

 To establish asylum based on past persecution, the applicant must prove (1) that [ ]
he was persecuted, and (2) that the persecution was on account of a protected
ground.” Persecution is “an extreme concept” that requires more than “[m]ere
harassment” or “a few isolated incidents of verbal harassment or intimidation.” “The
statutes governing asylum and withholding of removal protect not only against
persecution by government forces, but also against persecution by non-government
groups that the government cannot control

 An applicant for asylum must prove that he was persecuted on account of one of five
protected grounds: “ ‘race, religion, nationality, membership in a particular social
group, or political opinion.’ ” The Board of Immigration Appeals has held that
homosexuals constitute a “particular social group” within the meaning of the
Immigration and Nationality Act. An asylum applicant need not prove that the
persecution is motivated entirely by a protected ground. Instead, an applicant need
only “show that the persecution is, at least in part, motivated by a protected
ground.”

2) Matter of Acosta “Particular social group” as composed of members who share a common,
immutable characteristic, such as sex, color, kinship ties, or past experience

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F) Gorillas are persecuting co-taxi owners; he was assaulted & received 3 threatening notes. H) not
sufficient to be a social group.
3) THE STATUTORY STANDARD FOR ASYLUM
a. A. must have a fear of persecution.
b. Fears of persecution must be well-founded
c. The persecution feared must be ‘on account of race, religion, nationality, membership in a
particular social group, or political opinion
d. The alien must be unable or unwilling to return to his country of nationality or to the country
in which he last habitually resided because of persecution or his well-founded fear of
persecution.

4) Negusie v. Holder (formerly Negusie v. Mukasey), 555 U.S. ___ (2009), was a legal case in
which the United States Supreme Court agreed to review the issue whether the bar to asylum in
the United States for persecutors applies to asylum applicants who have been the target of
credible threats of harm or torture in their home countries if they refuse to further participate in
the acts of persecution. At issue is whether Daniel Negusie, who says he was forced to assist in the
mistreatment of prisoners in Eritrea under threat of execution, may nonetheless apply for asylum
because any assistance he rendered was provided under duress. The court held that the BIA and
United States Court of Appeals for the Fifth Circuit erred when they evaluated Negusie's asylum
petition because they presumed it mandatory that an alien's coercion to persecute was immaterial
when determining whether the "persecutor bar" applies.
5) Matter of S-E-G: The Board, while finding that the young men faced serious danger from
the MS-13 gang if removed, denied their asylum claims, holding that there was no definable
social group. They denied that youth who have been subjected to recruitment efforts by the
gang and who have rejected or resisted membership due to their own personal, moral, and
religious opposition to the gang constitute a particular social group. 
6) HUAMANITARIAN ASYLUM-Matter of Chen -a person who establishes past persecution
may still be granted asylum for humanitarian reasons even where there is little or no
evidence of the present possibility of persecution. F) Because he was the son of a Christian
minister he was tortured & exiled at the age of 8, during the revolution.

7) In re A-M-E & J-G-U-, Persecution for class hatred by organized political gangs F) a married
Guatemalan couple where being persecuted bcz. they belonged to a higher socio-economic
level, they kept on receiving threats & her sister was kidnapped & released only after they
shot her in the leg. (1) Factors to be considered in determining whether a particular
social group exists include whether the group's shared characteristic gives the
members the requisite social visibility to make them readily identifiable in society and
whether the group can be defined with sufficient particularity to delimit its
membership.
h) The respondents failed to establish that their status as affluent Guatemalans gave them
sufficient social visibility to be perceived as a group by society or that the group was defined with
adequate particularity to constitute a particular social group.

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 8) Koulijinski v. Keisler Petition for review of a decision denying Jewish Russian native's
application for asylum and withholding of removal is denied as: 1) an IJ may properly
consider an alien's convictions for driving under the influence of alcohol in making a
discretionary denial of asylum; and 2) petitioner failed to show that he is "more likely than
not" to face persecution or torture were he to return to Russia.

WEEK 5- FAMILY SPONSORED IMMIGRATION/ CONCEPT OF

ADJUSTMENT OF STATUS
INA §§101(a)(16); (20); 101(b)(1)-(2); 101(c); 201(b)(2)(A); 201(c); 204; 214(d); and 222
INA 245 ADJUSTMENT OF STATUS (AOS)
8.C.F.R. 245
USCIS FORM 1-30 PETION FOR ALIEN RELATIVE
USCIS FORM 1-485 APPLICATION FOR PERMENANT RESIDENCE.

101(b)(1): Child means unmarried person under 21 yrs who is:

a. Child born in wedlock
b. Stepchild) parents married <he/ she turns 18 STEP PARENT MUST ADOPT.
c. Child legitimized in his/dad’s jurisd < 18 yrs. + legal custody leg. P.
d. w/o wedlock but Rlshp w. parent
e. –
i. adopted<16 +2 yrs. Red. W. P Or battered child + birth parents
ii. Subject to the previous;
f. <16 + app. By immediate family + orphan..( long rule)
g.
2) Matter of Andres GUZMAN-GOMEZ (Distinction between INA 101(a) & 101(c)
i. F) P. born in mexico, mother Mexican & didn’t become American
before he turned 18, mother got married when he was 13 and they
resided in California, the P. is not his stepfather’s biological child & he
was never adopted by his stepfather, he wasn’t born to his stepfather
out of wedlock either. I) whether the respondent automatically derived
U.S citizenship through his stepfather? H) No
ii. Holding: (1) The terms “child” and “parent” defined INA 101(c) do not
encompass stepchildren and stepparents.(2) A person born outside the
United States cannot derive United States citizenship under section by
virtue of his or her relationship to a non-adoptive stepparent.(3 non of
the child def. in INA 101(b)(1) is going to apply this case including 101(b)
(1)(b) stepchild/ unless the parent adopt him
3) Matter of Marco ANTONIO ROBLES-Urrea legal alien lied to the judge about his
commission of a felony of marijuana possession w. intent to distribute- he was prisoned 9
months + supervision 1 yr.
a. Misprision of a felony in violation is a crime involving moral turpitude
b. Under the “stop-time” rule In INA 240A(d)(1)(B) , an offense is deemed to
end an alien’s continuous residence as of the date of its commission.

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 4) Matter of Ajmal Hussein Shah Hashimi—Immigrant came to the U.S w.
student visa, got married, filed I-130, asked for continuance 5 times because
his I-130 was still pending. I) how long can it stay pending cz. the judge wanted
to adjudicate the case;
a. An alien's unopposed motion to continue ongoing removal proceedings to await the
adjudication of a pending family-based visa petition should generally be granted if
approval of the visa petition would render him prima facie eligible for
adjustment of status

5) Adjustment of Status Process

A two-step process underlies a family-based adjustment of status.
a. First, the United States citizen or lawful permanent resident petitioner files an I-
130 with the USCIS on behalf of his or her qualifying family member, who is the
beneficiary of the visa petition and later becomes the respondent in removal
proceedings.
i. The petitioner must establish his or her own United States citizenship or
lawful permanent resident status and
ii. the bona fides of the claimed relationship to the beneficiary and
iii. must also show that the family relationship meets the statutory requirements.
Once the I-130 is approved and an immigrant visa is immediately available;
2) The respondent may apply for adjustment of status under section 245(a)
a. The burden is on the respondent to establish his adjustment eligibility.
b. To establish eligibility for adjustment of status under section 245(a) of the Act,
the respondent must demonstrate that he has been inspected and admitted or
paroled into the United States; is eligible to receive an immigrant visa and has
a visa immediately available to him; is not statutorily barred from adjustment;
and is admissible to the United States within the meaning of section 212(a) of
the Act or, if inadmissible, is eligible for a waiver of inadmissibility.
i. Regarding the requirement that a visa be immediately available, immediate
relatives, who are defined as parents, spouses, and children of United
States citizens in section 201(b)(2)(A)(i) are not subject to numerical limits
on immigrant visas, meaning that visa availability is immediate.
ii. On the other hand, aliens in the preference categories under section 203(a)
e.g., the spouse of a lawful permanent resident, are subject to
numerical limits on visas.
1. The Department of State tracks visa availability in its monthly Visa
Bulletin.

6) INA section 201(b) refers to aliens not subject to direct numerical

limitations. That group includes children, spouses, and parents of a
citizen of the United States.

7) Robinson v. Chertoff-An alien remains an “immediate relative,” eligible to obtain immediate

relative visa, despite citizen spouse's death, after less than two years of marriage, while
visa application was pending—§ 201(b)(2)(A)(i)—

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 F) Mr. Robinson filed a petition for his wife to obtain an immigrant visa as an
“immediate relative” (an I-130 petition) and an application to adjust his wife's status
to that of a permanent resident alien (an I-485 application), 7 months later he died
in a ferry accident. H) ordered to process Plaintiff's I130 petition and I-485
application, and, throughout the application process, to consider Plaintiff an
immediate relative of a citizen of the United States

8) Spouse “Stokes Interview”- A Stokes Interview in a marriage based green card

application process is referring to an interview when the husband and wife are questioned
separately, and their answers are compared by an immigration officer to determine whether the
marriage was entered into in good faith. A stokes interview (also known as "marriage fraud
interview") is usually a second interview, after the first one when the husband and wife were
interviewed together raised some questions about the bona fide of their marriage.

What is a stokes interview?

When an individual sponsors his or her spouse for U.S. permanent residence,
they must collectively demonstrate to an USCIS official that their marriage
was entered in good faith, and not for the purpose of evading immigration law.
They must provide sufficient documents, and go through an interview at a
USCIS office where they will answer questions in front of an immigration
officer (IO) about their marriage and life together. This first interview
usually lasts about 1 -2 hours, and the questions are generally not intrusive.
However, if the IO conducting the first interview is not entirely satisfied and
still has questions about the marriage, he/she will schedule a secondary
interview known as the "Stokes Interview." During a stokes interview the
husband and wife are separated from each other and must answer a series of
questions that are rather personal and invasive. The interview will be taped
and their statements will be compared against each other. If their answers
match very well it is a good indication that the marital relationship is genuine.
If not, the couple will be given a chance to explain the discrepancies.
At the conclusion of the stokes interview if the IO is still not convinced, and
still has reasons to believe the marriage was created for the purpose of
obtaining immigration benefit, he or she will deny the adjustment of status
(AOS) petition.
8) 214(d) FIANCEE VISA;
(1) should include previous criminal convictions / have
previously met w/in 2 yrs (waivable), intention,
legally able & willing to marry w/in 90 days—
otherwise Alien & child. Must depart.
(2) (i) no other pending petition & (ii) no other petition
w/in 2 yrs.

9) General Requirements Adjustment of status refers to the procedure for becoming a lawful
permanent resident without having to leave the United States. It should be distinguished

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 from the traditional method of gaining permanent residence, which involves applying for an
immigrant visa at a consular post abroad.

Adjustment of status is discussed at §245 of the Immigration and Nationality Act ("INA").
According to INA §245(a), the status of an alien who was inspected and admitted or paroled into
the United States may be adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible to the United States for
permanent residence, and
3. an immigrant visa is immediately available to him at the time his application is filed.

Inspection and Admission or Parole

The USCIS officer must have a "full and fair opportunity" to conduct the inspection before the
alien is considered "inspected". An alien who enters based on an intentional false claim to U.S.
citizenship has not been inspected. However, an alien who presents himself or herself for inspection
before a USCIS officer as a passenger of a car will be considered "inspected" even where the
USCIS officer does not question anyone in the car other than the driver. "Admission" occurs when
the inspecting officer informs the applicant that the applicant is admissible and the applicant is
permitted to pass through the port of entry. Generally, the alien's I-94 and/or the USCIS stamp in
the alien's passport are proof of inspection and admission. However, a sworn affidavit or a copy of
the alien's airplane ticket may be used where an I-94 or admission stamp is not ordinarily issued to
the alien (i.e. visa-exempt aliens).

Immediate Availability of an Immigrant Visa

An immigrant visa must be immediately available to the alien at the time his or her application for
adjustment is filed. The Department of State Visa Bulletin shows the priority date for each
immigrant category. If an adjustment application is properly filed at the time that the individual's
visa priority date is current but the priority subsequently retrogresses before the case is
adjudicated, the adjustment cannot be completed. However, the applicant will be permitted to
remain in the United States until the priority date becomes current again, provided that he or she
remains eligible for adjustment. (matter of Ajmal)

Statutory Bars to Adjustment of Status

The INA lists several categories of aliens to whom adjustment is legally unavailable, which are
discussed below:

Foreign National Crewmen those who, at the time of arrival, were serving in any capacity on board a
vessel or aircraft or were destined to join a vessel or aircraft in the United States to serve in such
a capacity are barred from adjustment of status.

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Transits Without Visas ("TWOV") Aliens who are in immediate and continuous transit through the
United States to a foreign destination, in accordance with the terms of an agreement entered into
between the transportation line and USCIS, are not eligible for adjustment of status.

Aliens Who Entered Under Visa Waivers An alien (other than an immediate relative) who was
admitted as a nonimmigrant visitor without a visa under section 212(l) [visa waiver for B-1/B-2
admission to Guam] or section 217 [visa waiver program] is barred from adjustment of status.

Aliens Who Have Conditional Residence Aliens who were admitted for permanent resident status on
a conditional basis either as spouses whose marriages are less than 2 years old at the time of
admission as conditional residents or as immigrant investors (entrepreneurs), are ineligible for
adjustment of status. However, once conditional residence is terminated, the bar is lifted.

K-1 Fiances Aliens who are admitted on a temporary basis under the K-1 category for fiances may
only be adjusted to permanent residence on a conditional basis, and only where the adjustment is a
result of the K-1's marriage to, and immigrant visa petition by, the United States citizen who filed
the petition to classify him or her as a K-1.

Unauthorized Employment, Unlawful Status or Failure to Maintain Status Aliens who have engaged
in unauthorized employment, who are not in lawful status at the time of filing of the adjustment
application or who have failed to continuously maintain status since their entry into the United
States are barred from adjustment of status. However, this statutory bar does not apply to
immediate relatives of United States citizens or certain special immigrants.

Aliens Who Enter Into Marriages During Pendency of Administrative or Judicial Proceedings Any
alien who marries while in exclusion, deportation, or removal proceedings, or judicial proceedings
relating thereto, is barred from adjustment of status.
In addition, the INA prohibits approval of a petition granting immediate relative or
preference status based on the marriage until the alien has resided outside the United States for
two years after the marriage. Once that foreign residence requirement has been met, the
restriction against adjustment does not apply. The USCIS regulations provide for lifting the
restriction if the alien is found not deportable or excludable, or if the Service cancels the order to
show cause.

Adjustment Under INA §245(i) Aliens in some of the above categories were previously permitted
to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee
pursuant to that subsection). INA §245(i) expired on January 14, 1998. However, the recently
enacted Legal Immigration and Family Equity Act of 2000 ("LIFE Act") extends INA §245(i) by
replacing the old eligibility cutoff date with a new date of April 30, 2001.
This means that eligible aliens have until April 30, 2001 to file an immigrant petition or labor
certification application to be eligible to adjust their status in the United States. Under the
LIFE Act, INA §245(i) will be available to any beneficiary of a bona fide immigrant visa petition
(an I-130, I-140, or I-360) or application for labor certification that is filed on or before April
30, 2001. All qualified beneficiaries will be "grandfathered-in" under INA §245(i) even if they
don't actually apply for adjustment of status (by submitting form I-485) until after the April

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 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is
filed before that date.
It should be mentioned that the LIFE Act has added a new "physical presence" requirement.
Applicants need to prove that they were actually in the United States on the date of enactment
(December 21, 2000) in order to be eligible to use INA §245(i). Beneficiaries of immigrant
petitions or labor certifications that are filed after the old deadline of January 14, 1998, but
before the new deadline of April 30, 2001, will be required to prove that they were physically
present in the United States on December 21, 2000.
The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by
USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along
with the standard application for adjustment of status (Form I-485).
Place of Filing
An application for adjustment of status is ordinarily filed with the USCIS district director in the
district of the applicant's residence. However, as of November 29, 1996, all adjustment
applications that are based on approved employment-based petitions, including those of
entrepreneurs and dependents, are to be filed at the regional service centers.
Adjustment of Status is Discretionary
It is important to realize that adjustment of status is considered discretionary. USCIS may still
deny an application for adjustment of status even where none of the statutory bars applies.
In practice, adjustment of status will be granted where the alien is statutorily eligible and there
are no "negative factors." When such negative factors exist, the factors will be weighed to
determine whether adjustment will be granted. Close family relatives, particularly immediate
relatives, may be a strong factor favoring adjustment.
Preconceived intent to remain in the U.S. at the time of entry as a nonimmigrant, even though not
resulting in fraud or willful misrepresentation, may be a sufficient negative factor to deny
adjustment of status. However, immediate relatives of U.S. citizens can overcome such negative
factors.
Advance Parole Required to Leave While Adjustment is Pending
According to 8 CFR §245.2(a)(4)(ii), an application for adjustment is considered abandoned if the
alien leaves the United States while the application is pending. However, the alien may apply for
advance parole prior to departing the United States to ensure that his or her application is not
deemed abandoned. Advance parole is available for any legitimate personal or business reason.
Notwithstanding the above, on June 1, 1999, USCIS published an interim rule that allows H-1 and L-
1 nonimmigrants (and their dependents) to travel outside the United States without abandoning
their applications for adjustment of status, making advance parole unnecessary for these aliens.
The interim rule was published in 64 FR 29209.

Ability to Work While Adjustment is Pending An alien who has filed an application for adjustment
of status may apply for an employment authorization in increments not exceeding one year during
the period the application is pending (including any period when an administrative appeal or judicial
review is pending.) This is an unrestricted employment authorization that permits the alien to work
for any employer.

The alien may continue working pursuant to his or her existing nonimmigrant status, if such status
permits employment. However, USCIS normally takes the position that, after the application for
adjustment of status is filed, the alien has immigrant intent and is no longer eligible for extensions

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or changes of nonimmigrant status. For this reason, it is advisable to obtain an unrestricted
employment authorization in most cases.

10) (VAWA 2005)

a. http://www.law.washington.edu/IFAP/VAWA2005_LegalMomentum.pdf
b. International Marriage Broker Regulation—MAIL ORDER BRIDES COMPANIES.
i. Requires U.S. citizen filing K petitions to disclose criminal background
information.
ii. Prevents abusive U.S. citizens from sponsoring multiple foreign fiancées
and/or spouses.
iii. Government tracking of serial K visas. Creates government database to
track serial Kpetitions filed by same U.S. citizen petitioner and to notify
foreign fiancé or spouse of prior Kpetitions. Notification requirement
triggered after petitioner has filed three K petitions within the past 10
years.
iv. Domestic abuse pamphlet to be distributed to all foreign fiancées and
spouses
v. International Marriage Broker (IMB) Duties. IMBs are prohibited from
sharing any information on minors with any person or entity. IMBs cannot
give U.S. clients information on a foreign national until the IMBs have
searched sex offender registries, collected criminal an family background
information, provided background information to the foreign national, given
the domestic abuse pamphlet, and received written consent from the foreign
national to share her contact information. Violation of these requirements
can result in civil
c. Defense of Marriage Act- In response to a Hawaai case that came close to
legalizing gay marriage, DOMA states don’t have to recognize gay-marriage
decrees of other state.

CLASS NOTES:
1st 2nd 3rd 4th Categories of family preferences.
DOMA: works cz. federal.
Federal law distinguishes between child & Son & Daughter
101(c); Base line a child is unmarried + Under 21
NOT a Child for immigration purposes when you become married—
Adopted Child— for immigration benefits— is not a child post the age that a person is a
child under 101 (c) , even if your adoption is valid under the laws of the country it occurred –so your
application gets bumped from one category to a lower category if “not a child” …

101(b) :
(A) a child born in wedlock; NO BASTARDS
(B) Step-Child: has to be under 18 (NOT 21) when status occurred.

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 (C) A Child LEGITIMIZED—(fathers name not on birth certificate/ legitimating is
subject to state laws & the laws of the country of the child)/ this section to undo the
discrimination of A — <21& Custody
(D) CHILD BORN OUT OF WEDLOCK— by virtue of relationship …( here you get into a
very facts based inquiry)
(E) CHILD ADOPTED < 16 + 2 YEARS residency requirement
(F) (i) <16 +Orphan (comes from siblings adopting their nephews & nieces)/ see definition
of a child.

Not ALL CHILDREN ARE EQUAL UNDER FEDERAL LAW— RIGHTS OF THE CHILD ARE
DECREASED BASED ON SOMETHING NOT HIS FAULT
Corruption-Index: tells the % of corruption in foreign countries— important for immigration
evidentiary – adoption—purposes…

Hague Convention on Adoptions— what went on is that in corrupt countries the adoption stopped
cz. Corrupt bureaucrats want $$$$ before they ratify an adoption…

VAWA— Separate petitions not I-130 to get immigration benefit under immigration law…
Under the quota system- a child age is based on his age AT THE TIME OF PETITION—Non-
age-out rule

Fed. Gov. work on October 1st Fiscal Year///

under the 26,000 cc the progression doesn’t move in real time

You’re in the quota of the country you are born-CHRGABILITY-(some exceptions apply:
charged w. country of citizenship of the parents Or the Spouse)

Non_quota: IR or CR

Diversity Visa Lottery (DV) Statistically the winners tend to be more educated Or Wealthy—

Highly susceptible to Fraud & Graft;

INA 245— start by filling I-485 application to get a green card pg. 1131, (see 245(a) I lost him
totally) from lawfull status or other…Page 1143 Questions…

(ASYLUM HAS TO FILE W/IN ONE YEAR)

Family Based Visas (Immediate Relatives, 1st Preference, 2nd Preference, 3rd Preference,
4th Preference, K-1, K-3, V)

Immediate Relatives

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 "Immediate relatives" of United States citizens may qualify for a visa under this category to
immigrate to the United States. Visas are immediately available to individuals in this category, and
there are no numerical or worldwide level limitations to the number of visas that may be issued in
this category. An individual qualifies as an "immediate relative" if s/he is:

 a spouse of a United States citizen;

 a unmarried child (under the age of 21) of a United States citizen; or
 a parent of a United States citizen (provided that the citizen is at least 21 years of age).

First Preference (FS-1)

If you are an unmarried son or daughter of a United States citizen and are 21 years of age or older,
you may qualify for a visa under this category to immigrate to the United States.  This category is
allotted about 23,400 visas annually.
Second Preference (FS-2)
If you are the spouse or unmarried son or daughter 21 years of age or older of a lawful permanent
resident, you may qualify for a visa under this category to immigrate to the United States.  This
category is allotted about 114,200 visas annually.
Third Preference (FS-3)
The married sons and daughters of a United States citizen may qualify for a visa under this
category to immigrate to the United States. This category is allotted about 23,400 visas annually.
Fourth Preference (FS-4)
The brothers and sisters of a United States citizen (provided that the citizen is at least 21 years of
age) may qualify for a visa under this category to immigrate to the United States. This category is
allotted about 65,000 visas annually.
Fiancé (K-1) or Spouse (K-3)
The K-1 visa allows the fiance' of a United States citizen to enter the United States to marry, then
apply for legal permanent resident status.  The marriage must occur within 90 days of entry. The K-
3 visa allows the spouse of a United States Citizen to enter the United States and apply for legal
permanent resident status. This category also has a derivative provision for accompanying children
(under the age of 21) to also enter the United States and apply for legal permanent resident status.
“V-1” Visa Category (V-1)
The V-1 visa allows the spouse and unmarried children (under the age of 21) of a lawful permanent
resident to enter the United States. This visa category  was created to reunite families who have
been, or could be separated, during the process of immigrating to the United States. An individual
may qualify for a visa under this category if sh/e meets the following general requirements:

 is the beneficiary of an I-130 petition filed on or prior to December 21, 2000;

 has a priority date that is at least three years old and is not current;
 has not had or is scheduled for an immigrant visa interview;
 the I-130 petition is not already at an embassy or consulate abroad; and
 is not subject to any grounds of inadmissibility.

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WEEK 6 -EMPLOYMENT-BASED NONIMMIGRANTS (I) –
o H-1B (and Australian E-3) Professionals

H-1B The H-1B is a non-immigrant visa in the United States under the
Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S.
employers to temporarily employ foreign workers in specialty occupations. If a
foreign worker in H-1B status quits or is dismissed from the sponsoring
employer, the worker can apply for a change of status to another non-
immigrant status, find another employer (subject to application for adjustment
of status and/or change of visa), or must leave the US.

The regulations define a “specialty occupation” as requiring theoretical and

practical application of a body of highly specialized knowledge in a field of
human endeavor[1] including, but not limited to, architecture, engineering,
mathematics, physical sciences, social sciences, biotechnology, medicine and health,
education, law, accounting, business specialties, theology, and the arts, and
requiring the attainment of a bachelor’s degree or its equivalent as a minimum [2]
(with the exception of fashion models, who must be "of distinguished merit and
ability".)[3] Likewise, the foreign worker must possess at least a bachelor’s degree
or its equivalent and state licensure, if required to practice in that field. H-1B
work-authorization is strictly limited to employment by the sponsoring employer.

1) Duration of stay: The duration of stay is three years, extendable to

six. An exception to maximum length of stay applies in certain
circumstances:
A. One-year extensions if a labor certification application has
been filed and is pending for at least 365 days; and
B. Three-year extensions if an I-140 Immigrant Petition has been
approved.
2) Despite a limit on length of stay, no requirement exists that the
individual remain for any period in the job the visa was originally
issued for. This is known as H1B portability or transfer, provided
the new employer sponsors another H1B visa, which may or may not
be subjected to the quota. Under current law, H1B visa has no

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 stipulated grace period in the event the employer-employee
relationship ceases to exist.
3) Congressional yearly numerical cap: The current law limits to 65,000
the number of aliens who may be issued a visa or otherwise provided
H-1B status each fiscal year (FY). The numerical limitation was
temporarily raised to 195,000 in FY2001, FY2002 and FY2003.
A. In addition, excluded from the ceiling are all H-1B non-
immigrants who work at (but not necessarily for) universities
and non-profit research facilities.[4] This means that
contractors working at, but not directly employed by the
institution may be exempt from the cap.
B. Free Trade Agreements allow a carve out from the numerical
limit of 1,400 for Chilean nationals and 5,400 for Singapore
nationals. Laws also exempt up to 20,000 foreign nationals
holding a master’s or higher degree from U.S. universities from
the cap on H-1B visas.
4) Employer attestations to protect U.S. workers: The U.S.
Department of Labor (DOL) is responsible for ensuring that foreign
workers do not displace or adversely affect wages or working
conditions of U.S. workers.
A. While an employer is not required to advertise the position
before hiring an H-1B non-immigrant pursuant to the H-1B visa
approval, the employer is required to notify the employee
representative about the LCA (Labor Condition Application) or
if there is no such representation then the employer is required
to publish that LCA (Labor Condition Application) at the
workplace and the employer's office.
B. Employers must attest that wages offered are at least equal
to the actual wage paid by the employer to other workers with
similar experience and qualifications for the job in question, or
alternatively, pay the prevailing wage for the occupation in the
area of intended employment, whichever is greater.
C. By signing the LCA (Labor Condition Application), the employer
attests that: prevailing wage rate for area of employment will
be paid; working conditions of position will not adversely affect
conditions of similarly employed American workers; place of
employment not experiencing labor dispute involving a strike or
lockout.
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 D. The law requires H-1B workers to be paid the higher of the
prevailing wage for the same occupation and geographic
location, or the same as the employer pays to similarly
situated employees.
E. Other factors, such as age and skill were not permitted to be
taken into account for the prevailing wage. Congress changed
the program in 2004 to require the Department of Labor to
provide four skill-based prevailing wage levels for employers
to use. This is the only prevailing wage mechanism the law
permits that incorporates factors other than occupation and
location.
F. The approval process for these applications are based on
employer attestations and documentary evidence submitted.
The employer is advised of their liability if they are replacing a
US worker.

5) H-1B fees earmarked for U.S. worker education and training u.s
receives millions from H-1B training fees to educate and train U.S.
workers
6) Income taxation status of H-1B workers The taxation of income
for H-1B employees depends on whether they are categorized as
Resident Aliens or Non Resident Aliens for tax purposes.
7) H-1B employment: According to the USCIS, "H-1B aliens may only
work for the petitioning U.S. employer and only in the H-1B activities
described in the petition.
A. The petitioning U.S. employer may place the H-1B worker on the
worksite of another employer if all applicable rules (e.g.,
Department of Labor rules) are followed. H-1B aliens may work
for more than one U.S. employer, but must have a Form I-129
petition approved by each employer.
B. H-1B visa holders pay Medicare and Social Security taxes, and
are eligible for Social Security benefits. They also pay state
and federal taxes.
8) U.S. policy on maximum duration: In theory, the maximum
duration of the H-1B visa is six years (ten years for exceptional
Defense Department project-related work). H-1B holders who

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 want to continue to work in the U.S. after six years, but who
have not obtained permanent residency status, must remain
outside of the U.S. for one year before reapplying for another
H-1B visa.
A. There are generally two exceptions to the six-year duration
of the H-1B visa:

 If a visa holder has submitted an I-140 immigrant petition

or a labor certification prior to their fifth year
anniversary of having the H-1B visa, they are entitled to
renew their H-1B visa in one-year or three-year increments
until a decision has been rendered on their application for
permanent residence.

 If the visa holder has an approved I-140 immigrant petition,

but is unable to initiate the final step of the green card
process due to their priority date not being current, they
may be entitled to a three-year extension of their H-1B visa.

9) H-1B (dual intent) and legal immigration : Even though the H-1B
visa is a non-immigrant visa, it is one of the few visa categories
recognized as dual intent, meaning an H-1B holder can have legal
immigration intent (apply for and obtain the green card) while still
a holder of the visa.
A. In the past the employment-based green card process used to
take only a few years, less than the duration of the H-1B visa
itself. However, in recent times the legal employment-based
immigration process has backlogged and retrogressed to the
extent that it now takes many years for skilled professional
applicants from certain countries to obtain their green cards.
Since the duration of the H-1B visa hasn't changed, this has
meant a lot more H-1B visa holders have to renew their visas
in one-year or three-year increments to continue to be in
legal status while their green card application is in process.
10)Quotas and changes in quotas: The number of new H-1Bs issued each
year in the United States is subject to an annual congressionally-
mandated quota. Each H-1B quota applies to a particular Financial Year
which begins on October 1

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 11) H-1B-dependent employers: Recent H-1B legislation requires
certain employers, called H-1B dependent employers to advertise
positions in the USA before petitioning to employ H-1B workers
for those positions.
A. For firms of 50 employees, an H-1B dependent employer is
defined as having more than 15% of their employees in H-
1B status. Smaller firms are allowed to have a higher
percentage of H-1B employees before becoming dependent.

II. Australian E-3 VISA

The E-3 visa is a U.S visa for which only citizens of Australia are eligibleIt was a
result of the Australia-United States Free Trade Agreement (AUSFTA signed into
law by U.S. President Bush in 2005.
Description
The E-3 visa is similar in many respects to the H-1B visa.
Important differences:
A. spouses of E-3 visa holders may work in the United States without
restrictions (unlike other US non-immigrant visas, even the TN visa
issued to Canadian and Mexican citizens),
B. E-3 visa is renewable indefinitely (in two-year increments).
C. not longer subject to the 65,000 annual visa limit for H-1B visas;
i. there is a separate annual quota of 10,500 E-3 visas, this is
believed to be much more generous to Australians than requiring
them to compete with all other nations for H-1B visas .
ii. Visas issued to spouses and children are not included in the E3
quota and spouses and children do not need to be Australian
citizens.
D. Immigrant intent should not be a bar to eligibility for E-3
classification: Although INA § 101(a)(15)(E) requires that all E
nonimmigrants maintain an intention to depart the United States upon
expiration of their authorized E stay, the guidelines issued by the USCIS
state that applications for E classification, including extensions or change
of status, cannot be denied solely on the basis of an approved permanent
labor certification or pending or approved immigrant visa petition.

Similar to an H-1B visa:

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 i. the prospective employer first apply for a "Labor Condition
Application" (LCA) with the U.S. Department of Labor, with a note
at the top of the form indicating it is for an E-3 visa for an
Australian citizen.
ii. After the LCA is approved, the Australian citizen will then
apply for the actual visa at a U.S. consulate and then enter the
U.S.
iii. Australians who are already in the United States on another
type of temporary/non-immigrant visa may also apply to change
their status to an E-3 visa.
i. Change of visa status is not possible if the applicant has
entered the country under the visa waiver program.

III. H-1B1 SINGAPORE/ CHILE PROFESSIONALS

[H-1B1 visas are issued to residents of Chile and Singapore under the amended
NAFTA treaty] U.S. FREE TRADE AGREEMENT PROFESSIONAL (H1B1) VISA
The U.S.-Singapore Free Trade Agreement and the U.S. – Chile Free Trade
Agreement, which took effect on January 1, 2004, created a new class of
non-immigrant work visa for Singaporean and Chilean citizens: the H1B1.:
Only Singaporean and Chilean citizens are eligible as principal
applicants. 1,400 H1B1 visa are available for Chileans, while 5,400 are set
aside for Singaporean nationals.
The spouse and dependent children, under 21 years of age, can
accompany the principal applicant to the United States. To qualify for
H1B1 visa status one must meet the following criteria:
 The position must be a specialty occupation; that is, it must
require theoretical and practical application of a body of specialized
knowledge. Some examples of specialty occupations are jobs in the fields
of engineering, mathematics, physical sciences, computer sciences,
medicine and health care, education, biotechnology, and business
specialties such as management and human resources.
 The foreign national must have a post-secondary degree involving
at least four year of study in your field of specialization.
 H1B1 visa does not allow the foreign national to be self-
employed or an independent contractor.

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 The period of employment in the U.S. must be temporary, so the
foreign national must demonstrate non-immigrant intent.
 H1B1 visas are only valid in one-year increments, as opposed to
3 year validity periods in H-1B visa status.
The United States Citizenship and immigration Services typically approves
H1B1 petitions for one year term which can be extended subsequently.

The H1B1 visa is similar to the H-1B visa: it allows qualified professionals
to temporarily live and work in the United States.
A. The crucial difference between the two types of visas is the
foreign national’s intent for coming to the United States. The H1B
visa category allows for "dual intent" where the foreign national will
be coming to work in a professional position temporarily while also
intending to immigrate to the United States. The H1B1 visa
applicant, however, has to demonstrate that he/she does not intend
to immigrate to the United States. Therefore, H1B1 beneficiaries
may not pursue permanent residence in the United States while in
H1B1 status.
B. Unlike the H1B visa there is no requirement for a Petition to be
approved by UCIS: The candidate can apply for a H1B1 visa directly at
the US Consulate in his or her home country by submitting the
appropriate nonimmigrant visa application along with an employment
offer letter, a certified Labor Condition Application and the relevant
supporting documents.
Due to the limited availability of H1B visas, employers may find it useful to
consider filing H1B1 petitions for eligible candidates. Filing H1B1 visa
petitions does not preclude citizens of Chile and Singapore from applying
for a regular H1B visa petition.

IV. H-1C NURSES

One recent trend in work visas is that various countries attempt to get special preference for their
nationals as part of treaty negotiations. Another trend is for changes in immigration law to be
embedded in large Authorization or Omnibus bills to avoid the controversy that might
accompany a separate vote.

H-2B visa: The H-2B nonimmigrant program permits employers to hire foreign workers to come
to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak
load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may
receive H-2B status

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 Alternatives to H-1B visa:

 Green Card for medical doctors and physicians.

o Pre-requisite: National Interest Waiver.
o Alternatively, a Medical Doctor or Physician may enter the U.S. for a temporary period
through a temporary visa.
 Green Cards for Nurses and Physical Therapists
 Employment Visa for Professors and Researchers. (Link is broken)

H-1B1 Singapore/Chile Professionals / H-1C Nurses

o H-2 Short Supply Workers / H-3 Trainees
o TN NAFTA Professionals / R-1 Religious Workers
VISA WAIVER PROGRAM (VWP)

 Aleinikoff: INA §101(a)(15)(h)

 8 C.F.R. §§214.2(h) and (j) (2007)
 Aleinikoff: INA §§101(a)(15)(b) and 217 (Visa Waiver Program/VWP B-1/B-2
Entrants)
 8 C.F.R. §217 NAFTA and §214.6 (TN), and 9 FAM 41.59 (2007)
 USCIS Form I-129 Petition for Nonimmigrant Worker and H and TN,
Supps

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