Immigration Law Outline  Nonimmigrant visas o General requirements of nearly all nonimmigrants include (non-exhaustive list): p The purpose

of the visit must be temporary; p The foreign national must agree to depart at the end of his/her authorized stay or extension; p The foreign national must be in possession of a valid passport; p A foreign residence must be maintained by the foreign national, in most instances; p The foreign national may be required to show proof of financial support; p The foreign national must be admissible or have obtained a waiver for any ground of inadmissibility; p The foreign national must abide by the terms and conditions of admission. o Temporary visitors pB y B-1 visitors for business B-1 often used when alien doesnt fit into other categories Easier Labor certification not required Dont need to file a petition with the INS But not meant for skilled and unskilled workers. They should apply for an H or something else. y B-2 visitors for pleasure Tourists Last 6 months y Both Usually admitted 1 year, renewable in 6 month increments CANNOT intend: To get a job To study To abandon your residence of a foreign country This is a factual inquiry that wont be overturned (so if youre trying to abandon, apply as an L-1 or H-1) Some countries have a visa waiver program that allows you to come on a B-1 or 2 Canadians dont have to show a passport or visa to enter the US

Does NOT allow you to come for skilled or unskilled work. You can conduct business (go to conventions, consultations) under B-1 but not engage in employment. pE y Treaty traders/investors and spouses/children not a petition based case with a petitioning employer and a beneficiary. y E-1 treaty traders and their spouses and children To engage in substantial trade in goods or services y E-2 are for treaty investors and their spouses and children To develop an enterprise involving substantial amounts of capital y Both Managers/executives or employee w/essential skills This comes from a treaty US has entered into with the aliens home country. Can last a long time. Initially admitted for 2 years, and may extend the stay in 2 year increments so long as they continue working in the same capacity. Can get an 1_94 that lasts 2 years every time you come in and out of the country. With an E or L visa, spouses can apply for work authorization. pF y Academic student who temporarily enters the US solely to pursue a full course of study at an established academic high school, college, university, seminary, conservatory, or language school. y F-1 The student not intending to abandon; must be full time; solely for the purpose of attending an established university, seminary, conservatory, etc Could also apply for M or J status M(i) for vocational school J(i) is similar to F(i) students, trainees, scholars, au pairs, professor, research assistant, specialist . . . Has a 2 year home residence requirement Employment: Can get authorization to work on campus. Youll get an EAD ( a card that says youre allowed to work). Good to show for I-9 identification. w/the F-1 youre authorized to work for a 12 month period. If youre a liberal arts

trainee, you can only get the OPT (F-1) for 12 months. w/ a J-1 its an 18 month approval y F-2 Spouse and child of student y Both granted for the duration of status as a student or for the time necessary to complete the course of study. o Switching from B-1 to Student: Act (or section) 248 p When someone comes as a nonimmigrant theyre a B-1 with a 6 month visa. Then they decide to go to school, but they cant go to school on a B-1, because thats not a legitimate business activity. Their options are y 1. Return home, get an I-20 from the school and apply for an F(i) and come back with a visa that says the school y or 2. I-539 c/s (change of nonimmigrant status) so they change from a B-1 to F-1 **Adjustment and change are two very different things! Here, you change from one nonimmigrant status to another Change of status can still be denied by immigration. may authorize a change Cant use this section if you were a J(i) Have to have maintained status, have to have entered lawfully So a B-1 visitor comes in 9/1/08 and seek to change as a student 9/9/08 and file an I-20 on 9/3/08. Havent overstayed, havent violated your status by working, etc, but you still might be denied because it looks like your intent was to be a student all along. This is called preconceived consent. Can infer from a rapid sequence of events that the purpose of the trip wasnt what they stated when they came in. pH y H-1B (limited number) workers in specialty occupations Lots of requirements to comply with the labor department Find a prevailing wage for the occupation. Wage provided to labor department. The person must make at least the prevailing wage. Labor department has to approve the way you come up with the prevailing wage. Working conditions wont have an adverse effect on similarly situated US workers No labor dispute exists at the place of employment Submit with H1-B application:

Employer (petitioner) should include: degree, transcript, letter describing the business (the degrees of other employees, the pay, the type of work), Standards for specialty occupation position 8CFR 214.2A-whatever = nonimmigrant category Ways to show its a specialty occupation position: 1. Baccalaureate degree or higher (or its equivalent) is normally the minimum requirement 2. The degree req is common to the industry in parallel positions among similar organization or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree. 3. The employer normally requires a degree or its equivalent for the position y May have to show whats normally required, pull employee files 4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. Beneficiary (the alien) qualifications To qualify to perform services in a specialty occupation, the alien must meet one of the following criteria: y 1. Hold a US baccalaureate or higher degree required by the specialty occupation from an accredited college or U y 2. Hold a foreign degree determined to be equivalent to a US baccalaureate or higher degree required by the specialty occupation from an accredited college or university y 3. Hold an unrestricted state license, registration or

certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialtyin the state of intended employment y 4. Have education, specialized training, and/or progressively responsible experience that is equivalent to a US baccalaureate or higher degree in the specialty occupation andhave recognition of expertise in the specialty through progressively responsible position directly related to the specialty. (D) Equivalence to completion of a college degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following: ( 1 ) An evaluation from an official who has authority to grant collegelevel credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual's training and/or work experience; ( 2 ) The results of recognized collegelevel equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI); ( 3 ) An evaluation of education by a reliable credentials evaluation service which specializes in

evaluating foreign educational credentials; ( 4 ) Evidence of certification or registration from a nationallyrecognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty; ( 5 ) A determination by the Service that t he equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of co llege-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien's training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien's experience was gained while working with peers, supervisors, or

subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as: (see website) For H1-Bs, the intent of the beneficiary isnt relevant Length of Stay for an H1-B 3 years + 3 year extension (each petition can only be for a 3 year increment) After 6 years, have to leave the US for a year, and then you can reapply If you start a green card process at least by the end of year 5, you can continue to get an extension beyond the 6 years. You may be limited by 1 year extensions. Quotas for H1-Bs and H-2s 65,000 (Bachelors degree) H1-B applications per year. Doesnt count extensions. Only new H1-Bs. 20,000 (masters degree) if you dont get picked in masters degree lottery, you get put in bachelor degree category. Year starts April 1 In petition, can ask for any start date between 10/1 and 4/1??? Colleges and universities are cap exempt. Can file H1-Bs all year. But if you worked at a university (a cap exempt employer) and are trying to transfer to a private employer (a cap subject employer) cant do it. Could transfer to another cap exempt. H1-B alternatives: E-3: if you have an Australian being employed in a specialty occupation, the Australian alien can get an E3 Canadians and Mexicans can get TNs fairly easily Difference between the H-1B and the F-1s, B-2s = employers dont have to show (with the H-1B) that theres not a pool of workers they could choose from. y H2 agricultural workers

y H3 trainees y H4 spouse and children of an H1, 2, or 3 p L (K is next section) y L-1 Out of the past three years (prior to your application to the US), must have been employed by the company at least 1 year. Parent/subsidiary (company1) seeks to transfer you to a Parent/Subsidiary (company1 or affiliate/subsidiary of company 1) in the US. Employer must maintain offices abroad and in the US for the duration for which the petition is sought. y L-1A managers/executive Get a total of 7 years; 3 years + 2 year extension + 2 year extension y L-1B workers with specialized knowledge Get a total of 5 years; 3 + 2 y L-2s are for dependants of L-1s y Blanket Ls Company gets approval from immigration for a big list of affiliates around the world 3 years, but if extended, good indefinitely is he coming to be an executive/manager/worker with specialized knowledge? has he worked with the subsidiary 1 of the prior 3 years p Aliens of extraordinary ability or achievement (in sciences, art, education, business or athletics) y I-129 O supp Have to be at the top of your field pK y (K)1 [fianc] first file a Form I-129F Prove personally met within three months prior of the K petition must submit to medical exam before visa is approved accompanying children get K(ii) status y (k)(ii) [married abroad] an alien has concluded a valid marriage with a citizen of the United States . The citizen of the US is the petitioner, alien is the beneficiary of a petition to accord a status under section 201(b)(2)(A)(i) that was filed under section 204 by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or This means: US citizens who have married already can file a 130 petition, get a 8

receipt, and file a K3 petition. The alien will come to the US already married and apply for a green card once there. Before non-immigrant spouse can get K status, but file an I-130 immigrant petition. Then apply for K visa. y K3 vs immigrant visa If you come on a K3, still have to apply for a green card. If you come with an immigrant visa, you get a green card in the mail. y All: valid for 2 years, may be extended if immigration status is still pending. If immigrant petition is denied or couple divorces before its approved, non-citizen spouse must leave US within 30 days. o Numerically imposed quotas by Congress p Family based beneficiaries priority date set by the date the INS first accepted immigrant preference petition p Employment based beneficiaries priority date set by the date the labor certification was filed. If no LC required, set by date of petition. p Consult visa bulletin of department of state y Tells you what the backlogs in the preference categories for immigrant status (family, business, and under the diversity letter) are. Preference categories say, if you fit in this category, well let you in, but well control the number well allow to immigrate. p Filing an I-130 y Lists the US citizens who can file. Can file for your spouse, parent, brother/sister, child. Not nephew, grandchild, etc. y The date the I-130 petition was received at the center is the priority date. Get a tracking number to get the correct date, dont rely on the receipt they send. This priority date shows your place in line. See chart: http://travel.state.gov/visa/frvi/bulletin/bulletin_457 5.html The dates under All chargeability . . . are the cut off dates for priority dates. Chart looks at country of birth Can use spouses country of birth if that has a more favorable quota period o Section 203 sets up preference allocation for family-sponsored immigrants. p Preference means these people are competing for numbers. p Allotted as follows: y 1. Unmarried son or daughter of permanent resident aliens.

When you turn 21 or get married, you stop being a child. Now youre a son or a daughter. y 2. For permanent residents only, file an 1-130 for 2A or 2B. Spouses and unmarried sons and unmarried daughters of permanent residents (a) who are the spouses or children of an alien lawfully admitted for permanent residence or (b) unmarried sons or unmarried daughters (but not children) of an alien lawfully admitted for permanent residence y 3. Married sons and married daughters of citizens. y If marriage status changes, have to start all over again. If petitioner naturalizes before the beneficiary gets married, their status converts to category 1. (and then to 3 when they get married.). But if they get married before the petitioner becomes a citizen, have to start all over again. o 201B categories of people not subject to quota p 201(B)(a)(i) Immediate relatives: children, spouses, and parents of the US citizen (child has to be at least 21 years old for parents to qualify) o 101B Child means: unmarried, under 21 p a. born in wedlock p b. stepchild whether or not born out of wedlock, child must be under 18 when the marriage creating the status of the stepchild occurred. y So, spouse and stepchild when stepchild is 15. File 2 I-130 petitions for spouse and stepchild separately. If child were 19, could only file for spouse. p C. a child legitimated under the law of the childs residence or domicile ... y Child born illegitimate but then the parents marry, child legitimated y Or a statute of the country of birth changes to make legitimate and illegitimate equal p D. Illegitimacy child born out of wedlock where the childs natural mother or father (if the father has a bona fide parent-child relationship with the person). p E. Adopted children adopted while under 16 if the child has been in legal custody of and in residence with the adopting parents for at least two years. So long as natural parents arent accorded any right, privilege, or status under this Act. y So to file an 1-130, must show: Legal custody of 2 years Resided with adopted parents for 2 years Adopted prior to age of 16 10

o Marriage cases p Immigration marriage fraud amendment (IMFA) y Created 2 categories of spouses for green card purposes LPR lawful permanent resident CPR - Conditional permanent resident y Have to look at 2 dates: 1. Date of marriage 2. Date of grant of LPR y If married more than 2 years, LPR (green card) good for 10 years. y If less than 2 years, CPR only good for 2 years. Then come back and prove youre still married or that you qualify for a waiver provided for under law. If it expires in 2 years (issued 8/20/09 and expires 8/20/11) have to remove the conditional status. To remove the condition on residence, file an I751 Part 2 a. my conditional residence is based on my marriage to a US citizen or permanent resident and we are filing this petition together If you file too soon, theyll send it back to you If you file late, try to explain why, hope they dont put you in proceedings. So be careful. When you file your case, you get a receipt that says this receipt clears you to work or travel for 12 months. You can get divorced, but you have a higher burden to show that the underlying relationship was entered in good faith. o Section 204: if youre seeking or trying to get benefits through a fraudulent marriage, the penalty is NO petition shall be approved. This is a lifetime bar. o Child status protection act (CSPA) p Protection to children who would otherwise age out because of the length of time it takes to process the cases. y Theres a difference between immediate relatives and preference beneficiaries. y If you file the I-130 and youre the stepparent but you dont file the case until your child is 21.5, then the age of the child is frozen when you file the I-130 y Doesnt freeze when filing as a preference, rather than immediate relative.

11

 203(b) Preference allocation for employment-based immigrants o preference = subject to quotas o Employment categories p Well focus on 1-3. These reflect public policy that Congress wants to reach through its formulation of those workers who can immigrate. p E(b)(1)s Priority workers. 40k per year, reflect that these people should get the first shot at getting visas. Labor certification the process where Congress proves that a labor protection process has been gone through. E(b)(1)s have no necessary labor certification process. y E(b)(1)(1) Aliens with extraordinary ability Bring unique and extraordinary ability in sciences, arts, education, business, or athletics to US labor. Think: cure diseases or become famous actors. Requires sustained national or international acclaim recognized through extensive documentation. *Can file a self petition, dont have to have a petitioner on your behalf. This is the preferred method, because then youre not dependent on your employer, unlike an E(b)(1)(2) With E-B1s, file an I-140 based petition, which is an employment based petition. Attach your extensive documentation to your I140 petition So E(b)(1)(1) + (i) requires the extraordinary ability (ii) requires they intend to continue in the area of extraordinary ability (iii) the aliens entry into the US will substantially benefit prospectively the US Timing: priority dates tend to stay current. Can file an underlying green card application at the same time. y E(b)(1)(2) - Outstanding professor and researchers Requires an I-140 petitioner & beneficiary Requires:

12

 (i) alien recognized internationally as outstanding in a specific academic area (ii) the alien has at least 3 years of experience in teaching or research in the academic area (iii) Alien seeks to enter for a tenured position with a university for a comparable position with a university OR for a comparable position to conduct research in the area with a private employer maintain a good record that can convince a judge if immigration denies you. y E(b)(1)(3) Certain multinational executives and managers Similar to the L-1 status! If you fit the L-1 definition, youre probably going to fit the E-B(1)(3) definition 3 years prior to application has been employed for 1 year by a firm or legal entity or affiliate/subsidiary and seeks to enter the US to continue to render services to the same employer (or subsidiary/affiliate) as a manager or executive. Any spouse, child (unmarried under 21) o 8 CFR 204.5 Petitions for employment based immigrants p subsection (h) how do you prove your client meets extraordinary ability definitions? y Small percentage at the top of the field y Include evidence of a 1 time achievement (internationally recognized award) OR y 3 of the following (for EB(1)(1)) Documentation of the aliens receipt of lesser nationally/internationally recognized prizes or awards for excellence in the field of endeavor. Documentation of the aliens membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines/fields. Published material about the alien in professional or major trade publications or other major media, relating to the aliens work in the field. So, like, articles the client published in a journal. Or the work written about is work your client did. Include information about why this journal/article/etc is relevant.

13

Evidence of the aliens participation as the judge of a work of others. The more prestigious the journal being judged for, the better. Evidence of the aliens original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (vi) Evidence of the aliens authorship of scholarly articles in the field, in professional or major trade publications or other major media; okay, now Im just copying from the website . . . (vii) Evidence of the display of the aliens work in the field at artistic exhibitions or showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. y Whatever 3 of the above you submit, play up the prestige/relevance/significance of the work. y E-(B)(2) The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest. No employer sponsorship required, just like the I-140 p NYSDOT set the tone for national interest cases. No one wanted to file because they were impossible to get approved. y How to qualify for a national interest waiver: 1. Alien seeks employment in an area of substantial merit 2. The proposed benefit must be national in scope 3. Show the petitioner or alien will serve the national interest to a substantially greater degree than a US citizen with similar qualifications. y Always important to back up your case with well documented info for what youre trying to prove. y I-140 form

14

o Labor certification p Section 212 Grounds of inadmissibility into the US (labor certification) y Not admissible if you enter to perform skilled or unskilled labor unless the Sec of Labor has determined there are not sufficient workers who are able, willing, qualified, and available AND Employment of such alien will not adversely affect wages and working conditions of US workers. p Labor certification details: y 656.17 (77392 FR vol 69, No.247): Basic labor Cert. Process Make sure the employer can document what recruitment efforts theyve made. Make sure there are no other US able, available and willing workers F.(on the ETA form 9089) Prevailing wage requirement Do this for asking the state DOL to bless the wage youre offering OES (wage survey) covers every county in the US, has 4 levels (based on experience). You could submit your own wage survey if it meets certain requirements. Check how they code the position offered. They may have it coded as the wrong type of work. Occupational title here is how they code the case Have to show youre able to pay that wage, even if you havent gotten the employee yet Commissions/bonuses are an improper basis. G. Wage offer (how much is being offered) Can give a range, but the low end cant be a penny less than the prevailing wage H. Primary work site (where theyre working) Qualifications for the job: (have to be able to support this) Major field of study Is training required? Is experience in the field required? Cant require more of a US worker than you did of a foreign worker. So if the foreign employee has been with company x for a year, and the employer wants to petition for them, cant require 1 year experience now.

15

 But can apply for different position assuming its a different job with requirements that are the same regardless of foreign/domestic status. Like, okay, you have a year of experience, now you can apply for Engineer Position Advanced. Or whatever. 9. Is a foreign educational equivalency acceptable? 10. Experience in alternate employment acceptable? 11. Job duties? 12. Job requirements normal for the occupation? Based on what the labor department thinks is normal based on what theyre coding the position. 13. Foreign language requirement? 77394 (h)(2)Can require to: communicate with employees, work as an interpreter, 14. specific skills or other requirements? p 77394 (h)(1) if the requirements exceed, an employer must demonstrate the job duties and requirements are essential and related to the job (see statute for exact text) p Recruiting: y Place an ad in newspapers in an area where people would look for the job. Must be in paper for 2 Sundays at least y Can use job fair, website, private job search website, TV ads: 3 of these in addition to 2 Sunday ads. If advanced degree job, must advertise in journal. Also place ad with State Department of Labor for 30 days. Ad must: State name of employer Tell applicants to send applications to employer Indicate geographic area p Colleges and Universities 656.18 y Faculty hired by competitive recruitment y Have a search committee, publish ads, y Employer can recruit the regular way (above) or competitive recruitment where the immigrant is more qualified than any other applicants for the job. y Post internally for 10 consecutive business days y Check wage

16

y Tear sheet p Cant have laid off someone for the position within the last 6 mos. y See 77394(k) for lay offs p Penalties y If you are fraudulent, you can be disbarred, suspended, etc. y E(B)(3)s Within the E(B)(3) there are 3 different groups Skilled workers Professionals Like the H1B nonimmigrant category At least a bachelors degree or foreign equivalent who is a member of the professions Other (or unskilled) workers Required less than 2 years training, not of a temporary or seasonal nature. In any EB3 case, must have a labor certification before you can file. When you file your labor certification, thats your labor date. Requirements for labor certification See study guide. Other I-140 issues Ability to pay. Employer has to demonstrate ability to pay market rate. Show this when you file the labor certification. If its a larger employer that employs a certain number of employees, can show net current assets are equal to or greater than the wage offered to the employee; or that through the whole time the case has been pending, the employee can show a W-2 that shows the employee has received that wage Priority date is the filing date of the labor certification o Lottery immigrants, diversity immigrants p 1 application per adult where you apply for a green card. p Must have a high school degree or 2 years experience p Cant be from a country with high immigration #s p Fiscal year to fiscal year program p If abroad, do it through US consolate

17

p If you dont get green card by the end of the year you win in, you have to start over

 Green Card (business) o Aka LPR (lawful permanent resident) o Being a resident as an immigrant doesnt carry over to other areas p IRS considers you a resident even when you dont have a green card y So like, an H1 could be a resident for tax purposes o 2 ways to lose your permanent resident status: (you become inadmissible) p 1. Commit a crime p 2. Leave the US for a lengthy period of time after acquisition of permanent resident status. y They lose it when they try to re-enter o Can apply either in the US or at a US consulate p Form I-130 or I-140 (prospective employee) if you want to adjust your status from non-immigrant to LPR. If not eligible for adjustment of status, must apply for a visa abroad at consulate y The date you file your I-140 or I-130 is your priority date unless its based on a labor certification p You must remain eligible in the category youve put yourself in. If youre coming in as an unmarried child, you have 180 days to come in, must remain unmarried. p (Consulate is a State Department) o 3 steps to get a green card (normally there are only two, but in employment based cases there are three steps [except E-B1s where theres no labor certification]) p 1. Labor certification, aka perm. 98% of employment based cases start with showing there are no US (qualified, able & willing) workers to take the job. y And there are no conditions that adversely affect the US force y This establishes the priority date. If you file 9/24/2009, thats your priority date. y In the non employment immigration, priority date is established by step 2 (the I-140) p 2. I-140 (i.v. petition) p 3. Apply for immigrant status for a green card p As long as youve started this and youre an H-1, you can continue to work. Needs to be filed more than a year before the H-1B will run out. o Adjustment of status . . . I have a spouse on an F-1.

18

p Could have her file an I-130 and have her go abroad and file it there. But thats obnoxious. p File an I-130 and an I-485 according to section 245 a, which states: y Requirements: To become a resident, have to qualify for a visa category, and thats how the I-130/I-140 comes up. The staus of an alien inspected and admitted or paroled (ie didnt come illegally). Show an I-94 or admission stamp in the passport to show the person cleared this stage. Canadians dont often have this, but its cool. A VAWA applicant may be denied by the Attorney General may 1. Make application for adjustment 2. Cant be inadmissible for qualitative reasons (section 212) like coming to work without labor certification, criminal, no visa, been deported, communist, polygamist, 3. Immigrant visa is immediately available look online at visa bulletin: where you were born, etc. This will tell you whether you can apply this month or not. This is based on your priority date where are you in line, how did you get in the line, was it an I-140? Etc If you have kids here, you dont just automatically immigrate here. Kid has to turn 21 before the child can petition for the parent, and the parent still has to leave the country and apply. y You get a receipt when your application has been feed-in y Then you get a biometric notice that tells the applicant to go somewhere for their photos and prints. p 245 C People who cant adjust status: (this is NOT discretionary) unless youre a VAWA applicant . . . y 1. alien crewman y 2. Other than an immediate relative (to a permanent resident/citizen) , if you engage in unauthorized employment, you cant adjust status. y 3. Aliens admitted on C (transit) visas y 4. Aliens (other than immediate relatives) admitted as a nonimmigrant visitor without a visa under section 212(i) or . . .another one . . . p 245 K (adjustment of status when theres a gap)

19

y Alien who is eligible to receive an immigrant visa . . . may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7) and (c)(8) if . . . So basically, if there was a screw up (3 day late extension, gap in status, forgot to renew work authorization card) if . . . this gap is less than 180 days. And shes an immediate family member of an LPR/citizen And she came legally File an I-765 and an I-131 y Matter of - Came for pleasure and married US citizen within 24 hours Discretionary component of this adjustment of status makes it possible to say, this seems fishy Department of Immigration said The finding of preconceived intent was the only problem with this case. A grant of adjustment of status is warranted in this case because that intent is the only negative factor. He had a wife and child as US citizens. y Matter of Ibrihim- less close family connection. (brother) y If you lie can be grounds to deny admission now and in the future (like a crime) You can change your mind, but the faster you do so, the more sketchy it looks. y Submit your application with either a concurrent visa application, birth certificate, proof of maintenance of status (youre not barred by 245 (c)), show you can support yourself (so if its an employment based case, need a labor cert) Your spouse and children submit the same things you do. Like an I-485. Also include marriage certificate. Anything to prove they are dependents. o If alien entered before 1972, has been a resident continuously since then, good moral character, and not ineligible to citizenship, then just by being here before that date, you have a record of admission for permanent residence under INA:Act 249 WHY SHOULD I STAY AWAKE FOR THIS CLASS?  Impact on your practice (immigration law as it affects criminal, domestic, labor, contract & wills/estate planning laws)  The moral implications THE POLITICAL STRUGGLE:  Who has the power? To do what?

20

o Congress has been given the power by article I. Plenary power. p Congress writes the laws. What the Congress says, goes, unless the S.C. finds its unconstitutional, which they rarely do. o Executive branch in charge of enforcement: p DHS, DoJ, DoL, DoS p DoJ, ets are administrative review judges, not courts. The statute that says No court shall have jurisdiction they dont mean the administrative law judges, they meant no federal review. p In immigration law, sometimes you cant go above the DoJ. Some things go up to circuit, district, and supreme court. Can only go above DoJ if youve exhausted administrative remedies. Sometimes you can skip some possible remedies because it would be moot.  What is plenary power? o The power of congress  Why is the plain meaning of a statute the most commonly used standard in immigration decisions o Immense amount of deference to the plain meaning of a statute. o Immigration, DoJ, department of homeland security has tremendous power over immigrants. o Good relationship at the bottom is important because thats where a lot of power is. THE TOOLS OF THE PRACTITIONER  Right to Counsel/ Entry of appearance/ Ineffective Counsel o Yes, most of the time. Right to counsel at every level of immigration except when you are at the border, seeking to enter the US, and they stop you. Youre not in America yet, no right to lawyer. Other than that, everyone has right to counsel. p No counsel hired by government. May have to hire your own or go to a clinic. Great place to volunteer. p To be an attorney, though, you cant appear on behalf on an alien for any matter if you have not made your notice of appearance with the US attorney. Submit forms to do this. y G28 goes to the department of homeland security y E28 & E27 go to the department of justice E stands for Executive Office of Immigration Review (EOIR) Used to be required in colors. Send in right color even though forms can be white now. Make it the E 28 as clear as possible. Discovery  No discovery. Dont get to see what the govt has against your client. At all. Can be side swiped in the middle of a trial. o This is a reason to harbor relationships at the bottom.  There are some tricks: 21

o Freedom of Information Act (FOIA) p Cant get info on a person through FOIA without their agreement unless that person is dead. o When a client is detained, can ask for bond hearing, because you can learn about your client that way.  Subpoena o Can get them, but theyre not enforceable. o Only way to enforce a subpoena of an immigration judge is if the judge takes it to a federal judge and asks for a cite for contempt. p This has never been done in Carolinas experience. Interpreters  Right to interpreter. 2 kinds of rights to interpreters: o In Dep. of Justice, interpreter provided for you. p But helps to bring your own interpreter to clear up misunderstandings. o In Dep. Of Homeland Security, must provide your own interpreter o A bad interpretation will ruin your case. Evidence and standards of proof  No rules of evidence. Everything is admitted. Highly prejudicial? No problem.  Fed R. Evid. Are taken into consideration o Make any objection you want to under FRE, because maybe at some point youll go up to circuit, district or Supreme ct and they will disapprove of the bad evidence. o Propensity evidence completely admissible. o Focus on the weight of the evidence p Yes, your honor, you can admit the testimony of the 5 year old, but I would ask the court to give the evidence its appropriate weight.  Burdens of proof arent supposed to be so high o Not supposed to be beyond a reasonable doubt p In asylum, judge may get confused and expect beyond reasonable doubt. o Instead theres a sliding scale between preponderance of well founded fear to clear, unequivocal and convincing this goes to the evidence for the standard of clear probability (i.e. more likely than not). p Important to explain this to judge. o Generally, alien has burden of proof p Govts burden to prove the charges on the NTA y Prove manner, date, time, county p But the moment that you admit your client is not a US citizen, the burden shifts to the alien. y If your client isnt a citizen dont deny this!! p Burden of proof to earn the relief you seek p Certain presumptions are automatic

22

y If you say you were persecuted in the past, the law presumes you will be subject to future persecution. Once you have shown on a well founded standard, then theres automatically a presumption that itll happen again. But with automatic shifting presumptions, they are rebuttable. The govt can rebut. Assylum case: I supported X and was tortured for it govt: but X is in power now. Marriage case: if you marries your US citizen before youre placed in deportation proceedings, therell be a presumption that its genuine. But if you marry after youve been placed in deportation proceedings, theres a presumption you married for papers, not love. These are rebuttable presumptions. Service  Service is to the alien or his attorney at their last reported address. Doesnt have to be to both. So if your client moves a million times and doesnt tell you, and immigration sends hearing notice to the last address they have (19 addresses ago), thats service. And they get deported. So encourage them to use the address on your E28. Tools of practice:  AILA.org  CFR (chapter 8 and one other one mostly) & INA (Immigration and nationality act) these will be your best friends. o Do NOT cite INA above DoJ (the glass ceiling). Cite to US code o In immigration ctDoJ and below cite to INA.  The practitioners library: INA, CFR, Kurzban, AILA, mentors, web resources o INA has lots of cross referencing, but its not indicated. Thats why you should get a mentor. o Web based: ailaline o The state bar practice assistance office  Have a Volume and tickler system o Reminds you when to do things, when your deadlines are. p GA bar has a fabulous free program for all members. Law practice program: 2 people come to your office, evaluate your filing system, # of clients, etc. and helps you put a system together. y May also help you out if you make a little mistake. o Immigration is a volume practice. So you have to do a lot of work.  Communication, consultation notes, fees and fee agreements o Communication IMPORTANT. Return calls o Consultations 23

p Take LOTS of notes p Tell people the advice has the shelf life of milk, because the law changes so fast.  Fees o Immigration attorneys charge consultation fees because immigration consultations take at least 30 minutes. If you do a day of consultations, you need to have earned something. o Immigration fees normally flat fee. Deportation case? $3000. p Sometimes you come out ahead w/flat fees, sometimes you dont. Track your hours so you know. p Be wary of payment arrangements. Deported people dont pay. o Can withdraw representation for any reason in DHS. But not in the DOJ.  Conflict of interest o Only withdraw because of conflict of divorce. o Anything else, youre stuck  Malpractice insurance basics o Not as expensive as other practitioners because there are very few claims p NOT because theyre really good, but because the government deports your mistakes. p Except for the rich clients. With rich clients,(investors visas) they can sue you.  Removal is a huge part of immigration. o Most of what you can do affirmatively, you can do defensively. o If you can apply for a green card ahead of time you can do in removal proceedings. o But some things you can only do in removal proceedings. o Removal swallows up everything else Terminology  Removability v Inadmissibility o Generally: p removability means you are in the US (maybe you were admitted) and the US wants to kick you out. p Inadmissibility means you are seeking to come in or you came in illegally p Important to understand the difference!!! p A person can be both. y Like a person being removed (admitted, commits crime) marries a citizen, and then judge has to decide if youre admissible.  Admitted v PWAOP v. Arriving aliens o Admitted comes in legally

24

p Cross the border without being addressed (but NOT hiding like sitting in the passenger seat next to person whose visa was checked) is also an admission y But hiding admitted. p Come in with fake/someone elses visa no admitted. o PWOAOP (present without admission or parole) p Attorneys say EWI o Arriving alien p At airport, asking to come in. y Airports are not part of the US y So if your client is apprehended at airport, hes not in the US. Even if taken to jail in US, not in US, still at airport. p person apprehended at the border arriving alien. p Person in passenger seat arriving alien o In 70s and 80s, Fidel sends up his jails and insane asylums, we are expecting political prisoners. p Didnt admit any one. But them in camps. They were considered arriving aliens, not considered in US. p S. Ct. held they dont qualify for bond because theyre not here, theyre knocking on our door. y Watch Scarface again.  Deportation v. Removal v. Exclusion o Used to exclude people we caught at border. p Now theyre removed. o Used to be everyone else was deported p Now theyre removed o Withdrawal of request for admission v deportation p W/drawal of request for admission I change my mind. y But there has to be somewhere to withdraw to. So they have the right by title but not practice. p Voluntary return y Caught at border, officer lets you go back p Voluntary departure y Leave on your own, on your own expenses o 3 kinds of Deportation p 1. judicial p 2. expedited removal y used to have a right to go before an immigration judge when you were being deported. 50% of the time the judge would reverse the immigration officers decision. y IRA eliminated that, immigration officer at border can have complete decision But if person claims afraid to go back, asylum claim.

25

p 3. Administrative removal y 2 kinds Person signs their own deportation Criminals Unless theres no jurisdiction over them because they are citizens. THE RELEVANT AGENCIES (and what they do)  DHS (ICE, CIS & CBP)  DOS  DOL  DOJ (EOIR: IJ and BIA) THE LANGUAGE ABC soup: the many visas Acronyms examples: IJ, VD, VR, EWI, O/S, RFE, TPS, etc. Citizenship  Whether youre a citizen or not is not a simple question o So when your client says they are or arent, dont take their word for it unless you know they were born on US soil. o Citizenship is all about jurisdiction. Cant be deported if youre a citizen. JURISDICTION: CITIZENSHIP  2 Kinds o Jus soli by soil p the fifty states p the other: PR, Guam and Canal Zone (under certain conditions not in hospital near canal zone, only in canal zone. Other reqs too.), but not Philipines. o Jus sanguinis, AKA derivative y parents or grandparents born in US? Not as simple as this. (Remember the sad case of Nguyen v. INS (where father is US citizen, but daughter is found in Vietnam when shes older than 18, shes denied citizenship))  3 main ways to naturalize: o (1) Naturalization derivation, AKA o (2)automatic or operation of law o (3) Adoption Use kruzban chart in back of book w/ birth date of your client See the Child Citizenship Act of 2000

26

 Derivative = So if when the child is born, the parent is a citizen prior to birth. o Parent born abroad, parent becomes USC, Child born abroad.  Operation of law/ automatic = Child not born here, parent not citizen at birth but became a citizen later. o Child born abroad, parent born abroad. Parent becomes USC, child becomes LPR(gets green card) and ALL of this happens before child is 18.  Adoption has to happen before the child is 16 o One exception if adopting siblings and one is under 16 and 1 is under 18 o Not automatic, must get child green card before child is 18. p So, if you have a child 15 & 11mos and 17 &11 mos = valid adoption for immigration purposes. Then you, as a US citizen petition for green cards for them. They get them at 16.5 and 18.5. 16.5 year old gets green card and POOF is citizen. BUT 18.5 year old is a permanent resident because he has his green card and he can naturalize later. y No documentation for 16.5 year old necessary. But having a passport helps the judges. p So, in sum: Adopt before 16, get green card before 18 = poof citizen. p Parent who is born abroad must naturalize before child is 18.  Equal protection clause: o Rights of out of wedlock mother and father are different. If mother is US citizen, automatically child is citizen. o With father, different. Has to legitimize the child. Requirements vary based on when child was born.  How to show citizenship o birth certificates issued by the various states o passports issued by the Passport Agency via the USPS o consular certificates issued by DOS o naturalization or citizenship certificates issued by DHS p but beware of adoption domestications  Naturalization: o 1, 3 and 5 year provisions (must have permanent residency status) p 3 if married to US citizen p 1 if serving active duty y if you served during Korean/Vietnam conflicts, & were illegal, you go from war to citizenship. No physical presence requirement. p 5 if ordinary citizen o must have good moral character p if you meet all the requirements, but there are things that make you look bad, the judge can deny you per his discretion. So, like a DUI, which isnt grounds for denial, can get you denied.

27

y So make sure you check out your clients crimes! They could get deported! o Must have physical presence. Dont worry about the math. o Pass a test and have language ability p May be exempt from language ability requirements. y 50 years old, res for 20 years or 55 and resident for 15, etc, can be exempt  False claim to citizenship o Permanent, lifetime bar & deportation if you make false claim to any government official for any reason. p Doesnt have to be affirmative, can be by inaction y act or omission y to any government entity y minimummens rea if any. o Exceptions p EXPATRIATION y 8 USC 1482 (INA Sec 349) enumerates acts that could lead to loss of citizenship, examples: obtaining citizenship in a foreign state; taking oath to a foreign state; serving in armed forces in a foreign state formally renouncing before a US diplomat or consulate outside USA formally renouncing within the USA -349(a)(6) conviction for an act of treason o DENATURALIZATION  Criminal Acts as Grounds of Removability and Inadmissibility o Sometimes going back to certain countries would be like being pushed out into the wild back when GA was a colony. p Is it double jeopardy to later be deported for a crime youve already been convicted of 30 years earlier? y No, permanent residency is a privilege, not a right. p Is it cruel and unusual? y No. deportation is not a punishment, it is simply a term of our hospitality And courts say, besides, dont talk to us. This is a matter of Congress plenary power. y See Harisiade v S Haughnessy (S. Ct. 1932) o Always be concerned with crimes when your client isnt a US citizen. o If you are here with anything except citizenship or permanent residence and are convicted of any aggravated felony as defined by the Immigration Nationality Act, you can be removed.

28

o Conviction not always necessary to be denied or deported: (but they usually are) p Scenarios: y Non USC arriving at port of entry y AOS applicants y Visa (@ consulate) applicants y Naturalization p For all of the above, they dont have to have a conviction to be denied or deported. Instead they have to: y 1. Admit the essential elements of crime of moral turpitude or drug Officer has to tell your client what those elements are and get the clients to admit them. y OR 2. Officer has reason to believe the client will engage in drug trafficking or money laundering Cases for reason to believe Castano case young man, drug distribution when he was young, immigration tried to deport. Ct held the fact that youre arrested, even with no subsequent proceedings, is sufficient for reason to believe. Missed the case name = Someone admitted they were going to smuggle but then changed their mind = reason to believe Matter of Rico = caught trafficking BUNCH o pot across border, technical problems, was let off. = reason to believe. Delivering cigarettes to drug dealer = association with drug dealer = reason to believe. So dont just ask for convictions, ask for arrests, or even, have you ever seen a police officer Certified record of conviction is sufficient to prove reason to believe. p What is a conviction: y Prior to IRA (pre 96) 3 prongs for conviction 1. Guilty finding or plea 2. Some form of punishment 3. A judgment entered if person violates prob (so if you plead guilty/no lo judge says, oh, be good for a year conviction expunged = no conviction) y Post IRA Prong 3 gone. 2 prongs:

29

 1. Finding of guilt/plea/admission + 2. Some sort of punishment or restraint. Punishment includes jail, fine, probation, community service, and court costs y The following ARE convictions: Deferred adjudication (like when your case is dismissed after you do community service) 1st offender/ youthful offenders (most states Not CA) plea guilty, no lo condendere bench or jury trial Court marshall Foreign conviction More likely to show up if conviction from Canada than from Timbuktu y The following are NOT convictions: Juvenile delinquency But immigration officers may have some discretion, but theyre normally cool Its the venue that counts here!! In GA its black or white, youre either a juvie or a criminal. In AL, you might be tried as a youthful offender, and thatll be considered a conviction Some diversions Pretrial diversion States: Do 12 months community service, come back and I might dismiss the case. In many states, this avoids the 1st prong. We have punishment, but no plea. This is true in GA. Dont have to plea. Other states require a plea. Fed: could be read to require a plea or not. So negotiate. Prosecutors usually like to have your client admit culpability to participate in pretrial diversion. Not a requirement though. But you dont want your client to admit culpability. You want to avoid the first prong if you can. Admission an element? y Is it final? Look at state rules or Fed rules, depending on jurisdiction.

30

 Most states dont consider a conviction final when D takes direct (1st) appeal This delays immigration from grabbing you. y Nota bene: admissim (written) between P & D = to admit to court o Analyzing whether a client w/a crime will be admissible: p Must have arrest, indictment, judgment and sentence y Criminal Code & Immigration Code y **The title of the crime is not important. The elements count. (*Sweetser) So read the statute. Match the judgment to the elements if the judgment doesnt specify which subsection of a crime he has done **look out for divisible statutes. (The record will tell you which section to look at). If record silent, case law assumes least culpable) Make sure court order is clear and specific. So when you get the court order, look for actual statutes, not generic Family violence battery. If the judge writes 12 months where theres a line for confinement, but the judge checks probation, get that clarified that its 12 months probation, no confinement. Can only pursue client for what the court order says o What Docs can prove conviction? p Final court disposition (certified) y 8 CFR 341 p Police report y However, police report could be admitted for consideration of discretion (denying a green card), elements and even admissibility o Purely political offense exception p Crime section doesnt apply if the crime the alien was convicted of was a purely political crime. o Leocal v Ashcrof p Is DUI a crime of violence? y Immigration consequences Removable (under 237) as CIMT (crime involving moral turpitude) and Agg PE CIMT for admissibility (under 212) purposes p Violence, theft, and fraud ALWAYS = lack of moral turpitude y malum in se evil crime

31

y Malumprohibitum you did it, thats enough. You, in a car, intoxicated = DUI in GA Repeat offender statute is also a malumprohibitum in GA y In Arizona is a crime of malum in se p Why Leocal? Answered DUI question Underscores importance of looking at the elements of the statute and applies to all immigration criminal analysis. y Statutes: 18 USC 16 Violence is: a. offense that has an an element use (attempted or threat) of physical force v. person or property OR b. Any other offense that is a felony and that, by its nature involves substantial risk force may be used y Supreme Ct held a. requires active employment (higher intent than negligence or merely accidental) B. not offenses that create risk of injury as result is not what is meant by substantial risk of force. Substantial risk of force means that force will be used, not created. Basically, what theyre saying is, dont look at what happened at the end, look at what required to be employed. Dont look at facts or outcome, look at elements!! So, in GA, DUI = not violent. In other states, where there are different versions of DUIs, criminal judges might use alternate definition of DUI to make it a violent case. o CIMT (can make you both deportable and inadmissible) p Crimes that make you inadmissible or removable: y 212(a)(2) inadmissibility (people wanting in) y 237(a)(2) removability (for permanent residents) a permanent resident arriving at a US airport isnt an arriving alien unless he has done something wrong. So look at both statutes when dealing with a permanent resident. When someone wants in, look at both. If they committed a crime, need to know if theyre removable and whether theyll be able to get a green card. A person here illegally can also be considered seeking admission

32

If client is just illegal, only look at 212. p What is CIMT? Behavior is base, vile, and depraved y Theft (stealing from church for yourself worse than stealing bread for your family) y Violent crime y Fraud y Aggravated felony INA 101(a)(H3) According to INA!!! Not Criminal Code! Felony with 1 year + punishment Rape is specifically listed, even statutory rape Gain (by prostitution) y Drugs Joint exception 1 30 grams or less Can file waiver to have this waived if seeking to become permanent resident Rock and Roll waiver nonimmigrant waiver Permanent resident with simple marijuana or cocaine conviction = NOT deportable y Prostitution If you are a permanent resident no provision for you unless you became a madam. Not deportable. BUT cannot travel. If you have hooked within ten years, or are going to hook, you are inadmissible when you try to come back in. So you cant apply for a green card until you put 10 years between hooking conviction and application. y Firearms y Smuggling Exception for smuggling your spouse p So when you have a crime, read about: are they removable (237), inadmissible (212) , or is it an aggravated felony (INA 101(a)(H3). p So, after you know theres a crime: look at relief and post conviction o Post Conviction Relief y Modify or Scrivners Judge says, oh, no, thats not what I meant, I meant this Immigration has to give full faith and credit to that order y Vacate y Withdraw your plea Depends on state statute y Pardon must be full and without condition SUPER easy for GA because governors power of pardon is given to board of pardon paroles(?). If they say, we pardon him but he cant carry a gun, thats not unconditional. 33

p Vacateurs y Pickering 1 cocaine conviction, judge vacated conviction to help him get around prohibition to green card. But US said no, we wont give full faith and credit to decisions made to get around us. Pickering circuit reversed its own decision, so in that circuit, vacateurs can vacate for any reason they want. Everywhere else, cant be to get around immigration. y But Padilla might change this. p Probated v probation y Probation is probation. Not jail. Martin. If you mess up here . . . y Probated = jail. Ayala-Gomez. If you get 10 mos confinement probated, and you fail here with three months to go, youre in jail for 3 months. p Best post conviction practice is prevention p Full faith and credit clause  237 and 212 arent mirrors of each other. Like a permanent resident can get deported for a gun charge but not someone whod otherwise be inadmissible. o List that makes you inadmissible = longer than deportability.

Removability INA 237 Inadmissibility INA 212 Removable if at the time they were admitted they were in fact Health inadmissible. So the entire list of inadmissibility applies here.  TB, HIV, Syphilis, Gonorrhea, Leprosy But law had to exist when alien was admitted. o (HIV may be on its way out. Show can  May ask for waiver if you know your client has an pay for treatment, show stable issue (like criminal domestic violence). If you get relationship for waiver) a waiver, cant come back later and say alien was inadmissible and therefore now deportable.  May have to file freedom of information act to see if your client really got a waiver.  When someone has a new wife and a new green card, then ask about what immigration knows about the marriage, because theres risk of marriage fraud. Present Without Admission or Parole (PWAOP) Present in violation  Stowaways  (o/s, violate terms [like dont go to the school you were o Must be hidden supposed to go to, drop out, etc school can lose  EWI (entered without inspection) [now referred its right to take in visa students if they dont to as PWAOP] report your absence], CLPR [conditional lawful permanent resident only good for 2 years, if allow to expire = violation of law]) o CLPR can be removed for a crime you commit, no trial. BUT once you become a LPR, you are considered to have been an LPR from day 1 of being a CLPR. 34

Smuggling  Cant have smuggled prior, at time of entry or 5 years after entry.  Even if after 5 years, its a crime  Includes: encouraged, aided, induced, abetted (includes paying the coyote)  Does not include smuggling family. Make sure to ask how family got there to avoid your client lying later Failure to change address  Use special form Fraud  Marriage fraud o If you commit it, you cant later apply for a visa through marriage o Matter of Matti (hardship on fake wife to be deported) False claim to citizenship (USC)  Dont claim unless youre SURE because if you get this wrong your client will be deported  Exception: lived in US since prior to age 16 and were adopted and had reason to believe they were US citizen  Unlawful voting you cant vote unless youre a citizen.  This lacks mens rea requirement!!! o INA refers to violation of voting law, though, and most voting laws require a fraudulent inent.  Also consider was the lie really to a government official? o Lie for liquor license = lie to govt entity, police officer, GSU, student loans, Security  Espionage o Spy tradecraft  National security  Terrorist o Changes depending on time  Overthrow govt  Getting calls from people from your home country  Nazi/Totalitarian o Even if were refugees at first, can take green card away because you were inadmissible when you were admitted

Smuggling  Does not have to be for gain  EWI (entered without inspection) [now referred to as PWAOP]  Includes: encouraged, aided, induced, abetted (includes paying the coyote)  Does not include smuggling family. Make sure to ask how family got there to avoid your client lying later Failure to change address  Use special form Fraud  Marriage fraud o If you commit it, you cant later apply for a visa through marriage o Matter of Matti (hardship on fake wife to be deported) False claim to citizenship (USC)  Dont claim unless youre SURE because if you get this wrong your client will be deported  Exception: lived in US since prior to age 16 and were adopted and had reason to believe they were US citizen  Unlawful voting you cant vote unless youre a citizen.  This lacks mens rea requirement!!! o INA refers to violation of voting law, though, and most voting laws require a fraudulent inent.  Also consider was the lie really to a government official? o Lie for liquor license = lie to govt entity, police officer, GSU, student loans, Security  Espionage o Spy tradecraft  National security  Terrorist o Changes depending on time  Overthrow govt  Getting calls from people from your home country  Smell test, just need Reason to believe  Sec of state can write a letter (with no other

35

 Public charge o Only removable if you become public charge w/in 5 years and the cause existed at the time of admission. p

evidence) saying not to admit you and thatll be good enough to deny you.  Public charge o Are at time of application or likely to become public charge o To prove youre not to become a public charge, must file an I-864 p This K is very flawed. 2 enforceable clauses: y Deeming your sponsors income will be deemed as yours. Applies for 40 qualifying quarters (10 years of work) or until the person becomes a naturalized citizen y You cannot advise sponsor and client = conflict of interest. Explain conflict to sponsor before answering questions. Ineligible for naturalization  Like aggravated felony, but doesnt apply to things that are waived. Intent/working w/out labor cert Draft evaders  Applies to older people, back when they didnt ask whether youre a citizen before they draft you Prior deportations  Doesnt allow you to adjust your status, unless you have proceeded abroad and reapplied. o If unlawfully present for less than a year = 3 year bar o a year or more = 10 year bar o if illegal alien is 18 or younger = 3 year bar o if illegal alien is 19 or older = 10 year

36

bar  Reinstatement: Try to show undue hardship for Hardship waiver  Can take 18 months to get Polygamists not admissible Child Abductors  Careful though, DV victims . . . Guardian of an inadmissible alien Fraud/Misrepresentation  Requirements: o 1. Willful o 2. Material o 3. To obtain a benefit o 4. Officer relied upon the above 3 to affect outcome (i.e. if you had told the truth, outcome wouldve been different)  Timely retraction o Lie retract quickly, asap. Left to discretion of officer. Some think its too late as soon as youve lied.  Before an official? Lie to consulate? Under oath? All perjury.  Failure to volunteer o Dont have to tell; no duty. Duty to testify and answer questions truthfully. o Doesnt have to be verbal to be a lie  30/60 rule o can change status within first 30 days of visa. (must be in US at least 30 days to go from 1 nonimmigrant status to another nonimmigrant status) o If you file before 30 days is up, presumed to be fraud. o Likewise, if you enter with a nonimmigrant visa and want to change to a permanent immigrant status, must wait 60 days, or else presumed fraud. o This presumption is virtually impossible to overcome o Once you commit fraud, to adjust or come back again, have to ask for a waiver, and this is hard to get

37

o Fraud on asylum = never admitted again

RELIEF FROM REMOVAL  NOTE: affirmative relief (A) can be invoked before removal proceedings are instituted
(i.e. filing with USCIS for an adjustment of status); defensive relief (D) can be invoked after removal proceedings have commenced ALWAYS BETTER TO INVOKE AFFIRMATIVE RELIEF 1. Prosecutorial Discretion (A/D) prosecutor determines case has no merit or decides governments time is better spent in the prosecution of another individual (almost never happens) 2. Private Bill (A/D) member of Congress introduces (under the auspices of humanitarian relief) a bill IOT grant citizenship outside the normal channels of USCIS (less likely than prosecutorial discretion) 3. Voluntary Departure (D) INA 240 only defensive b/c if affirmative the person would just leave before proceedings were instituted a. avoids a deportation order (and prejudice in future proceedings); good strategic move b/c client can leave with dignity b. client can choose ultimate destination c. must leave on or before the date set by a judge or automatically becomes a deportation order d. Pre-Hearing 1. 120 day max (judges discretion) until client MUST leave the country (not appealable) 2. No aggravated felonies 3. Client must show means to pay for travel 4. Bond may be imposed 5. Must have travel documents (not necessarily a passport as that is only required for re-entry into the US) e. Post-Hearing 1. 60 day max (Judges discretion) until client must leave (unlike pre-hearing rule this ruling is sometimes appealable) 2. Must show good moral character 3. Must also show means to pay for travel 4. Minimum $500 bond NOTES on V/D always subject to the discretion of the judge; must have been in the US for at least 1 year IOT qualify; No arriving aliens or prior grantees can be granted V/D 4. Asylum / Withholding / Convention Against Torture (CAT) next class 5. Availability of NON-IMM. Status (A/D) a. temporary protective status (TPS) executive branch determines that it would not be the proper COA to deport persons to a selected country (examples include places like Honduras after hurricane Michael or Indonesia after the tsunami); highly political and

38

countries do NOT want to be designated this way as foreign direct investment usually takes flight after such a designation is made (assuming a country actually has foreign investors) b. delayed enforced departure (DED) essentially a TPS designation but only for the country of Liberia 6. Availability of Immigrant Status (A/D) a. I-130 family plus priority date b. I-140 work plus priority date c. I-360 VAWA/Widows/Special Immigrants (juveniles or religious workers) d. Cuban AOS Cubans admitted or paroled (inspected) can apply for automatic green card if here for 366 days NOTE on VAWA (violence against women act) the violence must have been committed by the person who could have adjusted the victims status (self-petition under the act) 7. Pardons (A/D) a. made by the president or a governor b. only for INA 237(a)(2)(A) aggravated felonies or crimes involving moral turpitude (CIMT) c. must be full and unconditional d. does not erase the crime only forgives (as a result the person can never become a USC unless the conviction is vacted) e. only prevents deportation order but person will be subject to INA 212 if they leave the country and subsequently try top re-enter 8. I-751 removal of conditional lawful permanent resident (LPR)(A/D) a. joint petition filed (preferably) 90 days prior to end of conditional lawful permanent residency b. can get a waiver for VAWA, divorce, or extreme hardship (divorce is the easiest route NOTE: subject to good moral character and good faith marriages 9. Adjustment of Status (AOS)(A/D) a. INA 245(a) b. INA 245(i) c. humanitarian 10. Challenge to the notice to appear (NTA) (A/D) a. LPR status not abandoned (if a person leaves the country and upon return is served with a NTA for removal b/c he abandoned LPR status) NOTES on abandonment after 1 year out of the country it is presumed that LPR status has been abandoned (presumption is rebuttable); no fixed time period for absence (only serves as a flag to immigration officers); objective intent of the LPR is the key to determining if status abandoned; burden of proof is on the government and proof must be clear, convincing, and unequivocal; a parents abandonment is imputed to the child 11. Cancellation (A/D) a. in case of a LPR, the judge cancels deportation proceedings and permits LPR to keep green card b. in case of one who has no status (VAWA or Non-LPR) the judge cancels deportation proceedings and grants a green card (used for those w/o status and seeking it)

39

NOTES on LPR must have been here for seven years pursuant to a lawful entry before the NTA; must have been a LPR for five years; no aggravated felonies; subject to judges discretion and the 90/180 day rule (see below) NOTES on VAWA victim must have been in the US for three years prior to final decision; must have been abused by a LPR or USC spouse, parent, or child; victim must show good moral character; standard is any credible evidence for the abuse (very liberal standard); must show extreme hardship to self or qualifying relative; subject to the 90/180 day rule cannot have been absent for more than 90 days at one time or 180 days overall (from the US) IOT be granted relief NOTES on Non-LPRs must have been in the US for ten years prior to NTA; Good moral character subject to INA 101; must merit favorable discretion; must be a qualifying relative of a spouse, parent, or child; must show extreme, exceptional, and unusual hardship to Q/R; subject to the 90/180 day rule 12. Waivers for permanent resident and those seeking to become a P/R a. INA 212(h) (A/D) for crimes including aggravated felonies; has a one joint exception; based on extreme hardship that Q/R would suffer if not granted; if crime is violent then standard for hardship goes to extreme, unusual, and exceptional b. INA 212(c) (D) waives any crime including drug offenses committed before 4/26/96 and aggravated felonies committed before 4/30/97 as defined by INA 212 c. INA 212(i) (A/D) waives fraud and must show extreme hardship to qualifying relative d. INA 212(a)(9)(B) (A/D) waiver for unlawful presence e. INA 207/208 (A/D) refugee waiver for all offenses except terrorism, national security violations, and trafficking f. INA 212(e) (A) waives J-visa violations (adjudicated by the Dept. of State and NOT USCIS)  Asylum Law o Practiced by few no money, damaged clients, exhausting & frustrating application of law o Triangle (starting at the bottom): p Bottom y File asylum claim w/in one year y w/in USA cant be at the American Embassy in other country. If in other country = refugee Asylees are refugees y I-589 form sent to Citizen Imm. Services and ZAR (Asylum office). ZAR sends to Immigration, check criminal background, then casual interview between asylum officer and client and you. Must bring your own interpreter. Under oath.

40

Frivolous warning. If you make a material lie, barred from becoming LPR forever y Must be of good moral character Cant be in persecution of others y Once Asylum is granted, no one appeals y Derivatives (=Spouse & child [single, under 21] (in the US, included in application) Derivatives outside US can apply with I-730 within 2 years (no wiggle room) of client being granted asylum. Must do one I-730 for each derivative. LPR within 1 year of granted asylum status. Get a waiver with this (so crimes dont prevent LPR status) After LPR, become naturalized citizen (wait 5 years, apply for citizenship). p IF not granted, second level of triangle (referred): Defensive Asylum y Arriving aliens, visa waivers, and people not granted asylum @ level 1 start here. y Before arriving aliens are sent to this level (level 2, second from bottom of triangle) you go to a credible fear interview. If they pass this interview, go to Defensive Asylum. (not hard to pass) y Not as casual as first level. This is court setting. y Asylum if denied, automatically y Withholding if denied, automatically y Withholding under convention against torture (CAT) if denied, automatically y Referral under convention against torture if denied, automatically y Asylum is derivative, withholding and CAT is not. Nothing automatic for derivatives. Must submit applications even though client is automatic. y Interpreter is provided at this level careful with accuracy! Bring your own!! y Frivolous warning again. y If granted, ICE can appeal ICE can waive their appeal. If they do, granted. y If granted withholding no derivation, no LPR, no naturalization. Its like purgatory. Govt can remove you at govt will. If youre a detainee (commit crime), Imm decides if you can be released, which is 2 fold: 1. Is my client a flight risk? 2. Is my client a community risk?

41

If you are from certain countries govt cant send you back: Cuba, Vietnam, Cambodia, p If denied: Agency Appeal y BIA y 30 days to file appeal y De Novo BIA reviews transcripts, evidence, of record below. No new hearing, just new eyes on record below. y Appeal is done written, based on record below. Can ask BIA for an oral argument. y BIA has 3 options: Affirm Dismiss Remand y If granted, see above (below triangle) at DA y If denied, go to next level p If denied, can go to next level Circuit Court p If denied can go to US S.CT. o Work permit when your asylum app has been pending 150 days, but the running of these 150 days can temporarily stop for many reasons. Like if your clients interview gets pushed back. Or if your client is asked if they want to be on the expedited calendar and you decline.  Refugee o Person unable/unwilling to return to their country because they fear persecution on account of protected ground. p Whether the person wants to go or not is irrelevant, just whether theyll be persecuted if they go back. o 2 types: p Refugees and their derivatives y When admitted, refugee since was in camp p Asilees and their derivatives y Must get here first p See also: y Withholding y CAT Deferral Withholding  To prove asylum case o Standard: well founded fear of persecution p 1. Reasonable fear standard (even 10% risk is reasonable S. Ct.) y Credibility is key y Fear must be subjective and objective Client should be afraid and country conditions must show client isnt just paranoid. p 2. Well-founded fear of what?

42

y Persecution Past Creates rebuttable presumption that future persecution will occur. If client left before persecuted, only dealing with future persecution claim, which is very hard because it requires speculation Watch for changed country condition p 3. What is persecution? y Discrimination depends. Discrimination itself is not persecution unless its pervasive. y Prosecution not persecution unless its being used . . .caned for being gay y Conscription force you to join the military. If we like your government, not persecution. We dont like them, persecution. p 4. Fear of whom? y Govt or persons govt will not or cannot control. p 5. Must be country wide y Sometimes easy to prove move around country and persecuted every move. Sometimes can argue country is too small. Sometimes can argue persecutors are very sophisticated. p 6. Safe third country not an option y Must be reasonable, where there are jobs, where its safe to be in the open, Not good enough that other country is just kind of hard to make a living in. Asylum isnt about being comfortable, its about not being dead. p 7. On account of y why are you being persecuted? Only 5 acceptable answers: 1. Race 2. Religion 3. Nationality 4. Political 5. Social Group (catch all provision) labor unions, family, student council, fit under here coercive population forced abortions female genital mutilation. Kasinga Domestic Violence (matter of R.A.) Sexual orientation. (Toboso-Alfonso) Womans role (matter of SA) Forced marriage, servants musicians

43

y Must be common and immutable (cant get rid of it. Youre always a girl). y These 5 can overlap. Try all possible areas your claim may fit under. y Motivation of the persecutor must be one of the above 5!!!! The nexus is important. Mixed motive is okay (Ive kidnapped you because I want $100k and because you need to stop talking about democracy) Imputed one of the categories is okay. Govt imputes political opinion on you. They think youre a political leader. Even if youre not, can seek asylum. Look at mindset of persecutor, not victim. o Evidence Needed p Matter of SMJ 97 y No evidence. If document is available, someone better produce it. Even if thats the prosecution. If nothing else, state dept report. p Credible testimony alone can be sufficient. Mogharati, 1987. y Include details to enhance credibility p Fraud element colors claim. y If your client is inconsistent, presents fake documents, etc her claim will be tarnished. p Resources: y ASDOS/country reports y Asylum law.org y Amnesty international, red cross, crescent, etc y Experts y Pathology y Evidence from client Military ID Police report p If you dont have evidence that you should have, you better have a good reason. y Explain their absence!!!! o File for asylum within 1 year of entry p or might qualify for an exception y changed conditions y extraordinary circumstances if exception, must be within a reasonable time exception = anything you can argue Witholding INA CAT Art 3 of the convention against torture. Non-

44

Standard = more likely than not (99%:) on account Good Moral Character reduced, certain crimes okay No derivative No one year Can be repatriated Threat to life or freedom (persecution not nec) Govt or group govt cant control

refoulment principle Standard = more likely than not (99%:) For any reason No GMC necessary No derivative No one year Can be repatriated Must show you will be tortured, not just persecuted Actor can only be govt or acquiescence

Requests  The language we use to ask a ct to do something for us. Also the language we use to ask Citizenship and Immigration Services. o Many things youll ask of CIS that youll do in letter form instead of motion form. o Motions often look like letters. Or you have to use a specific form. p If you need to request something, ask is there a form I should file for this request? y Always use the right form. If you dont, and its time sensitive, you will lose. o But in court, the form fetish is not the case. In court, comply with the suggested format and file a motion.  Motions 8 CFR 1003.2 et al o Burden of proof p Heavy burden p Moving party bears the burden p Must support with evidence o To whom: p DOJ (EOIR) p DHS/CIS o Types: to p Reopen p Reconsider p Appearance (stuff like changing lawyers) y entry, withdraw, substitute, stand for, appear telephonically, waive appearance. y Motions must be filed ahead of time, cant do it on the day you need to make a change. Must be formal with these motions! Attach necessary forms, etc. If youre going to withdraw, need to let ct know that youve let your client know that youre withdrawing and your client consents (or doesnt consent and why). Judge can deny or accept.

45

p Terminate &remand y Judge is saying, I no longer have jurisdiction, heres the file CIS, you deal with him. (judge passes ball) BUT pure termination doesnt require remand. (judge drops ball) Hes not deportable, case closed. p administratively close y terminate, remand, administratively close are cousins because the end result is the same. No more court, judge has closed the matter. BUT an administrative closure in immigration means the judge keeps jurisdiction over your client. (judge keeps ball) i.e. client has temporary protective status so you cant deport him and case is administratively closed. But 10 years later, if he wants to apply for LPR, has to apply here instead of CIS like everyone else. Any time the client wants to do something, first has to ask this judge. p change venue y youll have to go wherever new venue is to rep your client. y Pain to get change of venue Have to show why it needs to be changed y Case law is well established though, so thats good p Recalendar p Bond hearing (redetermination) y ICE decides what bond your client gets. Once ICE makes the determination, you ask judge to redetermine that. So youre technically asking for a redetermination of the bond. p Changes for hearing dates y Postpone, expedite p Extend deadline for document submission, evidence, brief, application y NO extensions to file appeal notices and fees. y No motion will extend a statutory deadline!!! p Issue subpoena y Write the subpoena p Accept late evidence p Allow witness to appear telephonically p Continuance o Motion to reopen and motion to reconsider: p All of the motions above are free except for motion to reopen and motion to reconsider y Must attach proof you paid the fee p Only get 1 of each in the lifetime of the alien 46

y No limits on the other motions Re-consider Re-open -You made a mistake. You said she has 5 -New facts the judge didnt know about when children but she has 3. Or you said the law says the decision was made. Like your client didnt she has X days and she has Y. show up to ct, but now we know the correct address for service. Within 30 days this means ct receives the Within 30, 90, 180, 2 years or anytime motion within 30 days of the final decision depending on type. Must show error in decision below legal or New evidence / new law factual Does not toll appeal deadline period Does not toll appeal deadline - this is important because if your client is deemed to be deported, you have the option to file motion to reconsider or appeal. If you do motion to reconsider and its denied, then you dont have time left to appeal. SO what you can do is immediately file motion to reconsider, and then on the 29th day fed ex motion to appeal. But when you appeal, judge who was reconsidering doesnt have jurisdiction anymore. Free if filed in immigration ct or BIA; fee if Usually has fee in both EOIR and USCIS filed before CIS and must be filed with form I- (exceptions) and before CIS use form I-290B 290B. So if CIS makes an error and you file motion to reconsider. Must be filed where erroneous decision was Must be filed where decision was made made -might have to file in a few places just to be sure you file in the right place because filing in the wrong place can be fatal. No new evidence. Yes new evidence p Dont use the wrong type of motion. But if a lawyer earlier misused the clients one motion to re-consider, then you have to be creative. So the new fact would be the last attorney sucked!!  Types of Re-open: o 1. In absentia p a. no notice y govt provided client with legally insufficient notice. But remember that service here is: regular mail at last known address. (last address the client gave the government). Govt just has to assert someone in govt put the service in the mail, thats enough. Assumption the post office doesnt mess up. Assumption if the file says, notice mailed its correct.

47

 So look for instances where govt later sent something to the correct address that the service wasnt sent to. Or if the government sends the service to address A, and client lives at address C and you have evidence government knew about address B (shouldve sent it there). y No time limits So sometimes you can wait for circumstances to improve (client marries citizen) before you file motion to reopen for lack of notice But can be dangerous is client it detained. y Automatic stay p b. notice but exceptional circumstances y fee y within 180 days y no auto stay y except circumstances defined as: beyond an aliens control, serious illness or death of immediate relative and no less compelling So this implies nothing less compelling than the death of the immediate relative. But dont be discouraged from filing a notice but exceptional circumstances motion because you can win w/circumstances of flat tire, dead engine, told client to go to wrong place. In most cases, if you can show a reasonable situation beyond your clients control then youll get your motion approved. o 2. New evidence, new law, new facts, new eligibility p i.e. I supported X and am being deported, but now X is oppressed and Y is in power so now Im afraid of going back. Or was being deported, now I have a baby who has cancer. p fee p w/in 90 days y If case closed Dec 12, must be responded to within 90 calendar days!!! p no automatic stay o 3. For VAWA (4) p No fee p w/in 2 years or exceptional circumstances y exceptional circumstances related to being victim of domestic violence (was she allowed to leave? Is she living in a shelter?)

48

p automatic stay p must be accompanied by a proposed VAWA relief y all motions should be accompanied by evidence and sought relief, but VAWA motion must be filed with proposed relief. o 4. For ineffective assistance of counsel p see 1(b)(notice but exceptional circumstances) or (2)(new evidence) but not 1(a)(no notice). No good if prior attorney failed to tell his client. p To file this, must meet Lozada factors: y 1. Notice to prior attorney y 2. Show prejudice he fell below standard and this hurt client y 3. Allow attorney opportunity to respond p fee o 5. Joint p when no other motion is an option, but your client has a compelling story. Approach chief counsels office for a joint motion to reopen. This just means the govt thinks the judge should reopen the case. y good relationships are valuable here. p no fee p any time p still up to judge to accept p govt can oppose relief o 6. Govt Motion p no fee p any time p up to judge o 7. SuaSponte p no fee p any time p not really your motion, asking judge to do it, but they wont do it unless you file p always do an alternative motion for suasponte with your other motions o Warnings: p Remember to file stay? y VAWA and no notice = automatic stay y Do you always want to file stay? Sometimes no youre alerting people that your client is about to be removed. If hes in jail and you know hes being moved, its okay. But you might be reminding people that he needs to be moved. Once the client is removed, no jurisdiction except for motions for absentia no notice. y Can file emergency stay 49

If case is at BIA, file stay at BIA; if at 11th cir, file at 11th cir., if with immigration judge, file with . . . y Dont wait dilatory tactics frowned upon (matter of B.A.S (BIA 98)) If you have 180 days to file from decision, and you dont file until 179th day y Discretion always factor, so dont be frowned upon y Must be supported by evidence, proposed applications for relief, entry as attorney, etc 8 CFR 10032  Detention o Immigration has plenary power over non citizens. So, if this is a non-citizen, immigration has power. o 2 powers: p immigration may detain OR y May, can go for a bond, see below. p immigration must detain: mandatory detention y people who must be detained: national security, people with multiple CIMT, drug crimes, aggravated felony, not domestic violence, etc. This all applies to post 10/9/1998. exceptions for snitches, people providing important national service. y 236(c) y Matter of Kim o Bond: non 236 (c) p To apply for bond, have to be a may case, not a must p Arriving aliens (and terrorists) are not eligible for a bond p Bond vs. Detainer y Detainer is a notice that the govt puts on a bond to notify immigration a non-citizen is serving a sentence do you want him? If you do, you have 48 hours to pick him up before were done with him. 8 CFR 287.3d y 287(g) Cobb county calls immigration any time they get a noncitizen picked up if immigration doesnt pick him up after 48 hours, file habeas corpus, and then immigration will come get him y this 48 hours is 48 working hours. Not weekends, holidays! y if Cobb county charges fall through, immigration charges still apply. p Types of bonds: y Departure bond Put down money to guarantee youll go and you get a refund when you do Voluntary departure bond (min $500) Public charge

50

 Ill let you in the country if you put up 20,000 that says you wont go on welfare, because if you do, were keeping this money Get out of jail bond = most common Must prove 2 things: 1. Not a flight risk y Is he showing up to court? 2. Not a danger to the community y (look for diseases [TB, syphilis, violent tendencies] Criteria: family ties, prior arrests (even if not a ground of inadmissibility, judge wont like it, wont give him bond if no arrest of violence, not violent behavior!), prior appearances (comes to interviews, takes kids to school, etc), employment (careful, often not allowed to work, look for brothers employment), availability of relief (not going to be deported), membership in community (church), good deeds, length in USA, ability to pay a bond y Arriving aliens get parole, not a bond Paroles are free Must prove 2 things: 1. Not a flight risk Is he showing up to court? 2. Not a danger to the community (look for diseases [TB, syphilis, violent tendencies] 3. Not a public charge church sponsoring? p Bond Hearing y No transcript No for the record So make your own record. Submit affidavits, exhibit lists, etc. y separate and apart y can be appealed y can be stayed by govt if govt stays the bond while they appeal it, it means the bond is frozen. So it can be paid but client cant come out. Govt has 7 days to do stay y can be reconsidered for new facts y Minimum court bond = $1500 y Reasons to file for bond hearing: 1. Discovery

51

2. To move things along when no one has filed an NTA p Bond breach y Must be substantial Client gets bond, he gets himself deported, govt says he breached his bond by not appearing. Not substantial because he wouldve been deported anyway. Substantial not showing up to ct and fleeing; immediately filing for welfare (this doesnt include emergency medical care). p Immigration bonds are cash bonds. Bondsman pays cash, doesnt just sign his name like criminal law. p Alternative: y See also own recognizance y Ankle bracelets y Reporting Meet with immigration officer once a month (or something) for a day  review o hell give us bulletin, list of countries we have E visas with, fact questions that raise the issues. p Hell have family what do we do now, what do we do later? If you want to throw in statutes, fine, but not too interested in that. o Carolina analyze the facts and WHY, why is a fact problematic or not. If it is problematic, whats a solution. Dont say, hes a public charge, tell her why hes a public charge. Every fact in there should be noted. He walked into the door and fainted = 3 facts walked, into the door, fainted. p Always address citizenship o Know what an LCA for an H1V is versus a . . . something else for a permanent resident. o Visa vs I-94: p Visa issued in your passport by US console in foreign country. Just a pass to board a flight to enter the united states where youve convinced the consul that you meet that classification. p When you come into US, have to convince you: y Meet all grounds of admissibility y And your purpose of trip is consistent p I94 is evidence you were admitted into the US and shows how long youre allowed to be there y If you travel outside, have to get a new visa outside to mirror your next intended purpose. p I-94 transcends visa category. Essentially, every person who has a visa has an I-94.

52

y But when you come in as a refugee, you dont come in to be a permanent residence until theyve been there a year. They get an I-94 at entry. K visas are given an I-94 p 2 ways to become permanent resident: y DoS230 part 1; DoS230 part 2 y Adjusting status section 245 y Filing abroad, dont fill out an I form y I-140 or I-130 establish a classification of a visa category Puts you in a line Filed in the US, never at the consulate y Consulate cases = immigration then department of state y Adjusting here = immigration y If a person has a valid I-94 and the person violates the conditions of the I-94. If person can adjust here, person should try. (Try for a reinstatement) y L1 blanket works: If company has done more than 1,000 US employees, more than 21 mil dollars, can file a petition for L1 Attach proof company is operating in more than 1 country Attach list of those companies that meet subsidiary definition 214.2L of the regulation You get back a blanket L1 within 2 years So if you have managerial, executive, or degreed specialized knowledge, you file I129S and take it to consulate abroad where person works. y H4s cant work y L status may give you leg up on green card y Why would you do an H when you can do an L and not worry about quotas. L1(a) is a better gateway for managers and executives (not specialized knowledge) y Dealing with I-9 Keep an I-9 file y Go over each visa: Length of stay Requirements for the categories Steps towards getting it What it allows you to do Family members y Magic language rule: if someone is qualifying for a job through alternative minimum requirements and they have another

53

related technical field, you have to list the language necessary  Todays notes (not on test) o BIA reviews I-130 denials o Streamlining process p Summary decisions without opinions y Reasons: 1. Result below correct 2. harmless error 3. Squarely within precedent 4. Questions raised insubstantial p Avoid summary dismissal by: 1. Substantial legal issue 2. novel issue 3. facts in dispute 4. IJ wrong as matter of law 5. Reasonably met eligibility criteria 6. IJ errors: significant and material 7. Due process violated 8. Summary dismissal itself is due process violation

54